02年初「四五行動」及學聯等70人自遮打花園出發,和平遊行至灣仔警察總部;示威者拒絕遵守《公安條例》規定,給予警方7天通知。3個月後警方秋後算帳,重案組探員於清晨時分闖進長毛與另一名被告馮家強的寓所上門拉人。
現行的《公安條例》由臨時立法會制訂。回歸後不少遊行集會皆未有遵守7天通知規定,但引用條例作出檢控的,這還是第一宗。
香港特別行政區 訴 梁國雄及其他人 [2002] 4 HKC 564
九龍城裁判法院
九龍城刑事案件 2002 年第 8456 號
總裁判官李瀚良
2002 年 11 月 25 日
沈仲平、邵家勳及梁卓然(代表刑事檢控專員)代表原告人。
第一被告人親身應訊。
潘熙大律師代表第二被告人。
黃軒利大律師代表第三被告人。
本案三名被告人曾經參與一項在遮打花園展開的遊行。第一被告人向在場的警員表示自己是該遊行的負責人,並表示該遊行未有事先通知警方,而第一被告人也不會填寫通知書交給警方。稍後警方在現場警告遊行人士及展示印有警告內容的橫額。遊行人士沒有解散,而且開始遊行,路線是由遮打花園至警察總部。遊行人士抵達警察總部後,堅持前往警察總部北面閘門外集會。第一被告人為此和警方交涉,而第二及第三被告人則不時用擴音器向遊行人士陳述堅持前往北面閘門的理據。第三被告人後來負責遞交請願信。參與上述遊行的人數約有九十六人。三名被告人後來被控觸犯《公安條例》(第 245 章),案情指第一被告人舉行未經批准的公眾遊行,而第二及第三被告人協助舉行該未經批准的公眾遊行。三名被告人否認控罪,並指《公安條例》的第 13、13A 及 14 條違反《香港特別行政區基本法》第 27 條、《香港人權法案條例》(第 383 章)第 II 部(以下簡稱《人權法案》)第 17 條及《1966 年公民權利和政治權利國際公約》第 21 條。
裁定 - 三名被告人罪名成立:
案中的遊行人數超出法例規定的三十人,事前亦沒有通知警務處處長。第一被告人是該遊行的負責人,而第二及第三被告人是協助舉辦該遊行的人。
《人權法案》第 17 條的範圍應包括和平遊行。現行《公安條例》下要求在進行遊行前通知警務處處長的制度,限制了和平集會的權利,但該制度沒有要求所有公眾遊行均須通知警務處處長。該制度只適用於超過三十人參與並在公路、大道或公園舉行的公眾遊行(不包括殯殮)。該制度是有限度的限制。在考慮某項限制是否與《人權法案》相容時,應採取以下原則,即如:限制的範圍愈廣,所需的理據便愈要充份;法院解釋《人權法案》時須採取寬鬆的標準,對人權的任何限制則須採取狹義的解釋;保障和平集會權利的原則應與保障表達自由的原則相同;最後,民主社會應容納多元化意見和有寬容精神,當中一個重要特性是透過對話解決問題,不應訴諸武力,也不應阻礙任何人發表意見。
《公安條例》第 13、13A 及 14 條符合《人權法案》第 17 條下「依法律規定」的要求。它們均是依法制定及頒佈的。第 14 條在賦予警務處處長反對遊行的權力時,沿用了《人權法案》的詞彙,沒有違反「依法律規定」的要求。「國家安全」、「公共安全」、「公共秩序」、「公共衛生或風化」均是難以準確規範的概念,其中「國家安全」和「公共秩序」概念更必須隨時間和環境而改變。過於嚴格的規定,只會令法例僵化和不能與時並進,而且令法院無法對法例作出具彈性的解釋。
《公安條例》第 13、13A 及 14 條符合《香港特別行政區基本法》第 27 條和《人權法案》第 17 條的規定。現行的通知制度符合有關條文中「民主社會所必要的」要求。在香港這個人煙稠密、交通繁忙的城市,警方有需要為各種形式的公眾集會和遊行示威作出部署,以減低這些活動對其他公眾人士的影響,以及防止混亂。這些都是社會的合法利益,應得到適當的保障,也包含在「公共安全」和「公共秩序」這兩個概念之內。「必要」一詞的意思,應以一般的涵義去理解。法院考慮某項限制是否「必要」時,應當充份考慮立法會認為適合制定現行《公安條例》的看法。除非存在著有力理據,否則法院不應貿然以個人意見取代立法會的看法。何謂適當的時限,是很難論斷的。《公安條例》的條文在每一階段均規定警務處處長或上訴委員會必須儘快處理遊行通知書,沒有不合理地窒礙遊行活動。《公安條例》第 14 條並不含糊,已給予警務處處長足夠的準則以行使權力。證據亦顯示警務處處長在行使其權力時沒有針對某人或某團體。《公安條例》設有不同程度的機制以制衡警務處處長的權力,包括要求他在不接受較短通知、反對遊行或施加條件時給予原因,以及要求他只可在別無他選下行使反對遊行的權力。《公安條例》亦設有符合《人權法案》規定的上訴機制。《公安條例》既沒有全面管制遊行,也沒有窒礙表達自由。該條例沒有要求遊行人士預先提供活動的內容。案中沒有證據顯示警方擬用遊行意向通知書內的資料去審查活動的內容。《公安條例》第 17A(3) 條規定的刑罰是最高刑罰。刑罰須與罪責相稱,法官和裁判官有權施加恰當的刑罰。這條文亦沒有違反《人權法案》的準則。
上訴人認為,條例有關7天通知的規定,以及警務處長有權反對遊行集會或施加限制條件等條文,統統違反《基本法》所保障的基本權利與自由。
其實遊行集會權利並非絕對。根據《公民權利及政治權利國際公約》,政府可基於「國家安全」、「公共秩序」或「公眾健康」等理由,依法限制遊行集會權利,然而有關限制應是「必須」及「合符比例」的。
Court of Appeal
上訴庭日前以2:1比數駁回上訴,馬道立與楊振權兩位法官認為《公安條例》沒有違憲,另一位法官司徒敬則持相反意見。馬法官認為,有關監管遊行示威 的法 例,用字有需要「寬闊」(broad),警方才能有廣闊權力(wide powers of control),處理種種難以預計情况。他指出,《公安條例》只 是照抄國際公約裏「國家安全」、「公共秩序」與「公眾健康」等理由;要證明這些字眼不清晰門檻甚高,所賦予警方的酌情權不但要寬,甚至要到「令人費解」 (in-comprehensible),或可導致任意行使權力的地步。
相反,司徒法官認為上述看法忽略了國際公約與本地立法之間的分別:前者為了適用於任何地區與情况,必須採用寬大或原則性字眼。就本地立法而言,基於 犯法者 可能被判罪入獄,任何限制基本權利的條文,必須有清晰與嚴謹的界定,將公約條文加以闡明或具體化,不能只是搬字過紙。因此,現行《公安條例》,明顯未能給 予警方任何具體指引,容易出現任意(arbitrary)行使權力的情况。
司徒法官以《電影檢查條例》為例,當中詳細列明審查員必須考慮事項,包括該影片是否描繪殘暴、酷刑、恐怖、淫穢或令人厭惡的言行,提及宗教或種族, 並以此 污衊或侮辱這類人士。此外審查員須同時考慮影片的藝術、科學或教育價值。同是涉及言論自由,《電檢條例》的限制明顯較《公安條例》清晰得多,亦減少當局的 酌情權。
值得一提的是,馬法官指長毛等人並未能提出任何證據,指警方不適當地履行職權,一切只是基於他們對警方的不信任;但司徒法官的着眼點,不在於他們是 否相信 警方,只是單看法例本身賦予警方權力是否過大、酌情權的範圍是否過寬。
終審法院。
警方○二年首次引用《公安條例》中「舉行及協助舉行未經批准集會」罪名,控告「長毛」梁國雄、馮家強及盧偉明,法院後來裁定他們罪成及判處守行 為,三人不服定罪上訴至終審法院,終院昨日雖然以四比一大比數駁回上訴,但明確指出現行《公安條例》賦予警方用來限制和平集會的理由不清晰。
除了通知制度外,《公安條例》也賦予警方以「維護國家安全或公共安全、公共秩序或保護他人的權利和自由」為理由,禁止公眾集會或對公眾集會施加條件。
案件編號:FACC 1&2/05
[Chinese Translation - 中譯本]
終院刑事上訴2005年第1及2號
梁國雄及其他人
對
香港特別行政區
終審法院判案書摘要
本摘要由司法機構擬備,
並非判案書的一部分,亦沒有法律效力。
並非判案書的一部分,亦沒有法律效力。
法院裁決
1. 終審法院以大比數駁回上訴,並維持原判;常任法官包致金則持異議。
終審法院首席法官李國能,常任法官陳兆愷,常任法官李義及非常任法官梅師賢爵士的判決
2. 和平集會的自由與言論的自由,都是基本人權,民主社會的基石,同時基於一定的理由被視為有基本的重要性。在民主社會裡,一切緊張局面的消弭和困難問題的解決,主要有賴各方能公開溝通對話。這樣,社會才可以廣開言路,百花齊放。這兩種自由可以讓市民宣泄內心的怨氣,以求糾正失誤。互相包容是一個多元文化社會的標記。有了這些自由,小數人的意見,即使不為他人所贊同,也有機會表達。遊行是表達意見的有效方法,亦是很普遍的現象。
3. <<公安條例>>(下稱"該條例")中有關管限公眾遊行的規定僅屬有限,只管限在公路、大道或公園舉行而人數超過30人的遊行。
4. 和平集會的權利同時亦意味著政府有明確的責任,須採取合理和適當措施,以確保合法舉行的集會能和平進行。法例規定,擬在公路、大道或公園舉行而人數又超過30人的公眾遊行,必須在遊行舉行前通知警務處長,這樣的規定是合乎憲法的。事實上,世界各司法管轄區普遍都有這樣的法例,規定要在遊行舉行前通知有關當局。
5. 本案中所構成的罪行,就是在公眾遊行舉行前,未有遵照法例的規定通知警務處長,又不理會警方已發出的警告。
6. 本上訴案聆訊時,辯方所要質疑的要點是:法例賦與警務處長酌情權來限制和平集會的權利,以基於“公共秩序[public order (ordre public)]”理由,就經已知會將會舉行的公眾遊行提出反對,或針對有關的遊行附加條件(下稱"酌情權");這樣的酌情權太廣泛和太含糊,並不符合憲法的要求。
7. <<公民權利和政治權利國際公約>>(簡稱"國際公約") 適用於香港,通過<<人權法案>>在香港實施。國際公約訂下"公共秩序 [public order (ordre public)]"這個概念作為一個憲法準則。但這個概念並不明確,亦難以表達。除了含有“公眾秩序[public order]”在法律與秩序上的涵義(即維持公眾秩序與防止擾亂公眾秩序)外,這個概念所包括的其他涵義並不能清楚列明。憲法準則通常都是經過一番深思熟慮後,用較為抽象的言辭來表達。這些準則是大家所必須奉行的,這點是不容置疑的。終審法院曾以“公共秩序[public order (ordre public)]"這個概念作為憲法準則,並裁定這概念包括保障國旗及區旗這兩種合理權益。
8. "公共秩序 [public order (ordre public)]"這個概念,在憲法的層面上和在立法的層面上使用時,須有不同的考慮。 這個概念從國際公約透過一個異乎尋常的方法,引入<<公安條例>>中,賦予警務處長酌情權以限制和平集會權利。在行使這個酌情權時警務處長有相當程度的彈性,這點當然非常重要。但是,<<公安條例>>第14(1),14(5)和15(2)給予警務處長以"公共秩序[public order (ordre public)]"為理由限制和平集會權利所行使的酌情權,條文卻未有充分表明該酌情權的範圍。這是由於這個源自國際公約的概念,把它作為行使這個酌情權的基礎,並不適當。因此,警務處長以"公共秩序[public order (ordre public)]"為理由限制和平集會權利而行使的酌情權,並未能符合"由法律規定"這個憲法要求。這個要求規定所有法律必須要符合“清楚明確”這個原則。
9. “公眾秩序[public order]”在法律與秩序上的涵義是維持公眾秩序與防止擾亂公眾秩序,這是相當確實的。對於上述未能符合憲法要求的情況,適當的解決方法是,將“公眾秩序[public order]”在法律與秩序上的涵義與相關的法例條文中所指的"公共秩序[public order (ordre public)]"分隔開來詮釋。
10. 經分隔開來詮釋後,警務處長行使的酌情權,根據“公眾秩序[public order]”在法律與秩序上的涵義而言,便合乎憲法了。它正正符合(i)"由法律規定"的憲法要求,以及(ii)"是民主社會所必需的"的憲法要求,並達致相關的憲法上之合理目的。
11. 有一點須予強調的是,在法律上,警務處長在行使法例所賦與他的酌情權以限制和平集會權利時,必須引用"相稱性"這個原則作為標準。他必須考慮所擬作出的限制,是否有合理理據可以認定跟一個或多個法定的合理目的有關聯,以及是否沒有超越為達致上述目的而必需設定的限制。因此,警務處長這個酌情權並不是可以任意行使,反而是很受局限。採用這個標準原則以保障基本人權,是國際所公認的適當做法。法律規定在這種情況下採用這個"相稱性"標準原則,就是要確保和平集會這個基本人權完全得到保障,不受任何不當的限制。
終審法院常任法官包致金的異議判決
12. 常任法官包致金認為,警務處長對公共集會和遊行有權事前獲得通知,這做法是合乎憲法的。這個權利有幾個不同行使的方式,在常任法官包致金判詞中有所闡述;但並不是靠<<公安條例>>第17A條有關刑事懲處的部份來執行。常任法官包致金認為,警務處長對公共集會和遊行事前加以限制的權力,是有違憲法的。由於這些權力是違憲的,所以有關的刑事懲處,同樣亦是違憲的。因此,常任法官包致金認為上訴應判得直,原判應予推翻,而簽保守行為的判令亦應擱置,原因是用作將上訴人等定罪的懲處條文,是違反憲法的。
FACC Nos. 1 & 2 of 2005
IN THE COURT OF FINAL APPEAL
OF THE
HONG KONG SPECIAL
ADMINISTRATIVE REGION
FINAL APPEAL NOS. 1 & 2
OF 2005 (CRIMINAL)
(ON APPEAL FROM HCMA NO. 16 OF 2003)
_____________________
Between:
LEUNG KWOK HUNG
FUNG KA KEUNG ,
CHRISTOPHER
LO WAI MING
|
1st Appellant
2nd Appellant
3rd Appellant
|
- and -
|
HONG
KONG SPECIAL ADMINISTRATIVE REGION
|
Respondent
|
_____________________
Court:
|
Chief Justice Li, Mr Justice Bokhary PJ,
Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ
|
Dates
of Hearing:
|
3,
5-6 & 10 May 2005
|
Date
of Judgment:
|
8
July 2005
|
J
U D G M E N T
|
Chief Justice Li, Mr Justice Chan PJ, Mr
Justice Ribeiro PJ and Sir Anthony Mason NPJ:
1.
The
freedom of peaceful assembly is a fundamental right. It is closely associated with the fundamental
right of the freedom of speech. The
freedom of speech and the freedom of peaceful assembly are precious and lie at
the foundation of a democratic society.
2.
These
freedoms are of cardinal importance for the stability and progress of society
for a number of inter-related reasons.
The resolution of conflicts, tensions and problems through open dialogue
and debate is of the essence of a democratic society. These freedoms enable such dialogue and
debate to take place and ensure their vigour.
A democratic society is one where the market place of ideas must
thrive. These freedoms enable citizens
to voice criticisms, air grievances and seek redress. This is relevant not only to institutions
exercising powers of government but also to organizations outside the public
sector which in modern times have tremendous influence over the lives of
citizens. Minority views may be
disagreeable, unpopular, distasteful or even offensive to others. But tolerance is a hallmark of a pluralistic
society. Through the exercise of these
freedoms minority views can be properly ventilated.
3.
A peaceful assembly
may consist of a procession, as it did in the present case. A procession is an effective means of
communication because it involves an expression of the views of the
participants as they move from one place to another. A procession has been aptly called an
assembly in motion. The message the
participants are seeking to communicate may have a wide exposure. A procession is a potent method of expression
and is a common phenomenon in democratic societies including Hong Kong.
4.
This
appeal concerns a challenge to the constitutionality of the statutory scheme for the regulation of public processions
contained in the Public Order Ordinance, Cap. 245 (“the Ordinance”).
The focus of the challenge is on the contention that the statutory
discretion conferred on the Commissioner of Police (“the Commissioner”)
to restrict the right of peaceful assembly for the purpose of “public order
(ordre public)” is too wide and uncertain to satisfy the requirements of
constitutionality.
The convictions
5.
On 25 November 2002,
the Chief Magistrate (Mr Patrick Li) convicted the 1st appellant of the offence of holding an unauthorized assembly and
the 2nd and 3rd appellants of the offence
of assisting the holding of such unauthorized assembly. These were offences under
s. 17A(3)(b)(i) of the Ordinance.
The offences were in respect of a public procession on 10 February
2002. Each appellant was bound over on
his own recognizance for $500 for a period of three months.
The facts
6.
The facts can be
shortly stated. In the late morning of
Sunday 10 February 2002, a number of persons gathered at Chater Garden for
a procession to protest against the conviction of an activist for assault and
obstruction of a public officer.
The 2nd appellant, using a loudhailer, called on the
participants to get ready. Police
officers were at the scene since there was a demonstration concerning the right
of abode at Chater Garden at that time.
The 1st appellant, a well known activist, was the person
in charge of the procession. A police
officer invited him to go through the statutory notification procedure. He refused and was warned by the police
officer of the consequences of his failure to comply before the procession
started.
7.
The procession
comprising some 40 people then set off from Chater Garden in the direction of
Police Headquarters at Arsenal Street proceeding along Queensway. Ignoring police advice to use the pedestrian
pavement, they used the left traffic lane of the road. As the procession proceeded, others joined in
so that the number swelled to about 96 persons.
8.
On arrival outside
Police Headquarters, again ignoring police advice not to use the North Gate
where space was limited, the participants proceeded to that Gate. They stayed on the pavement there for about
an hour when speeches were made. The
procession was at all times peaceful.
Court of Appeal
9.
The appellants appealed
to the Court of First Instance which directed the appeal to be heard by the
Court of Appeal. The Court of Appeal (Ma
CJHC and Yeung JA, Stock JA dissenting) upheld the convictions: HKSAR v. Leung Kwok Hung & Others [2004] 3 HKLRD 729.
Leave to Appeal
10.
The Appeal Committee
granted leave to appeal, certifying the following question of law: Is the
scheme which the Ordinance lays down for notification and control of public
processions constitutional?
Representation
11.
In
considering this important appeal, the Court is indebted to Mr Martin Lee SC
for the 2nd and 3rd appellants and Mr Gerard McCoy SC for the respondent, the
Government, and their respective teams for their research and presentations
which were of considerable assistance.
The Court also wishes to thank the 1st appellant, who appeared in
person, for his written submissions and his measured address.
The Basic Law
12.
It
is necessary, first, to set out the relevant constitutional provisions. Article 27 of the Basic Law in so far as
relevant provides :
“Hong Kong residents shall
have freedom of speech …; freedom of association, of procession and of
demonstration …”
As has been discussed, the freedom of
assembly is closely associated with the freedom of speech. It is also closely related to and indeed
overlaps with the freedoms of association, procession and demonstration. The freedom of assembly is of course a right
to peaceful assembly. Obviously, the
scope of the right does not extend to an assembly which is not peaceful.
13.
Article
39 of the Basic Law in so far as relevant provides :
“[1] The
provisions of the International Covenant on Civil and Political Rights … as
applied to Hong Kong shall remain in force and shall be implemented through the
laws of the Hong Kong Special Administrative Region.
[2] The
rights and freedoms enjoyed by Hong Kong residents shall not be restricted
unless as prescribed by law. Such
restrictions shall not contravene the provisions of the preceding paragraph of
this Article.”
14.
In
accordance with Article 39, the Hong Kong Bill of Rights Ordinance Cap.383 (“BORO”)
incorporates the provisions of the International Covenant on Civil and
Political Rights (“the ICCPR”) as applied to Hong Kong. However, it should be noted that although
Article 20 of the ICCPR has been applied to Hong Kong, it has not been
incorporated into BORO. Article 20
provides :
“ 1. Any propaganda for war shall be prohibited by law.
2.
Any advocacy of national,
racial or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law.”
BORO
15.
Article
17 of BORO which corresponds to Article 21 of the ICCPR guarantees the right of
peaceful assembly as follows :
“The right of peaceful
assembly shall be recognized. 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 approach
16.
As
has been emphasized at the outset of this judgment, the freedom of peaceful
assembly is a fundamental constitutional right.
It is well established in our jurisprudence that the courts must give
such a fundamental right a generous interpretation so as to give individuals
its full measure. Ng Ka Ling v.
Director of Immigration (1999) 2 HKCFAR 4 at 28-9. On the other hand, restrictions on such a
fundamental right must be narrowly interpreted.
Gurung Kesh Bahadur v. Director of Immigration (2002) 5 HKCFAR
480 at para.24. Plainly, the burden is
on the Government to justify any restriction.
This approach to constitutional review involving fundamental rights,
which has been adopted by the Court, is consistent with that followed in many
jurisdictions. Needless to say, in a
society governed by the rule of law, the courts must be vigilant in the
protection of fundamental rights and must rigorously examine any restriction
that may be placed on them.
The constitutional requirements for
restriction
17.
The
exercise of the right of peaceful assembly, whether under the Basic Law or
under BORO, may be subject to restrictions provided two requirements are
satisfied :
(1)
The
restriction must be prescribed by law (“the ‘prescribed by law’ requirement”).
(2)
The
restriction must be 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 necessity requirement”).
It will be convenient to refer to the specified purposes as “the
legitimate purposes”.
It will be convenient to refer to
these requirements as “the constitutional requirements for restriction”.
18.
As
far as the right of peaceful assembly in BORO is concerned, the constitutional
requirements for restriction are laid down in Article 17 itself. In relation to the first requirement,
although Article 17 uses the expression of “in conformity with the law” rather
than the expression of “as prescribed by law” found in Article 39(2) of the
Basic Law, the principle involved is the same.
See Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381 at para.60 where
the expression “according to law” in Article 11(1) of BORO, providing for the
presumption of innocence in the trial for a criminal offence, was held to
incorporate the same principle as that of “as prescribed by law” in Article
39(2).
19.
As
regards the right of peaceful assembly under the Basic Law, Article 39(2)
provides that any restriction must not contravene Article 39(1), that is,
the ICCPR as applied to Hong Kong, which has been implemented by BORO. In relation to the right of peaceful
assembly, Article 39(2) provides that any restriction must comply with the
two constitutional requirements for restriction in Article 21 of ICCPR, namely,
(i) the requirement of “in conformity with the law” which is the same as the
requirement of “as prescribed by law” in Article 39(2); and (ii) the
necessity requirement.
20.
There
is no difference between the right of peaceful assembly guaranteed by the Basic
Law and that provided for in BORO and no distinction will be made between them
in this judgment except where necessary.
21.
In
the present case, the statutory scheme contained in the Ordinance provides for
restrictions on the right of peaceful assembly.
Having regard to the focus of the challenge, the crucial question which
the Court must consider is whether the Commissioner’s discretion to restrict
the right of peaceful assembly for the purpose of “public order (ordre public)”
satisfies the constitutional tests for restriction.
Positive duty on the Government
22.
Before
discussing the constitutional requirements for restriction, it must be pointed
out that the right of peaceful assembly involves a positive duty on the part of
the Government, that is the executive authorities, to take reasonable and
appropriate measures to enable lawful assemblies to take place peacefully. However, this obligation is not absolute for
the Government cannot guarantee that lawful assemblies will proceed peacefully
and it has a wide discretion in the choice of the measures to be used. What are reasonable and appropriate measures
must depend on all the circumstances in the particular case.
23.
The
existence of this positive duty is acknowledged by the Government. In the “Second Report on the Hong Kong
Special Administrative Region of the People’s Republic China in the light of
the [ICCPR]” to the Human Rights Committee, the Government stated :
“… essentially, the Police need advance notice of
demonstrations so that, among other things, proper arrangements can be made to
minimise any disruption to traffic and inconvenience caused to other members of
the public. The HKSAR has an
obligation to assist and provide for the right of peaceful public assembly and
demonstration and cannot do so in Hong Kong’s condition without prior
notice of large peaceful processions and assemblies.” (emphasis added)
See para.221 in the section dealing with the right of
peaceful assembly. The reference to
“Hong Kong’s condition” in this passage presumably includes its density of
population and its relatively narrow streets and roads in urban areas. Before this Court, Mr McCoy SC for the
respondent, fully accepts and indeed relies on the fact that Government has
this positive duty.
24.
The
recognition of this positive duty is consistent with the position under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(“the European Convention”).
Article 11 of that Convention guarantees the right of peaceful
assembly. In Plattform ‘Ärzte für das
Leben’ v. Austria (1991) 13 EHRR 204, the European Court of Human Rights
interpreted Article 11 to impose a duty on the state to take positive measures
to enable lawful demonstrations to proceed.
The case concerned anti-abortion demonstrations held by the applicant
association and the allegedly insufficient protection given by the Austrian
police against attempts at disruption by pro-abortion groups. The Court observed that a demonstration may
give offence to those with opposing views and demonstrators must be able to
proceed without fear of physical violence by opponents; such a fear would have
a deterrent effect (para.32). It held that
in a democracy, the right to counter-demonstrate cannot extend to inhibit the
exercise of the right to demonstrate.
“Genuine, effective freedom of peaceful assembly
cannot, therefore, be reduced to a mere duty on the part of the State not to
interfere : a purely negative conception would not be compatible with the
object and purpose of Article 11. Like
Article 8 [right to respect for private and family life], Article 11 sometimes
requires positive measures to be taken, even in the sphere of relations between
individuals, if need be.” (para.32)
But the Court recognized that
the obligation to take positive measures is not absolute.
“While it is the duty of Contracting States to take
reasonable and appropriate measures to enable lawful demonstrations to proceed
peacefully, they cannot guarantee this absolutely and they have a wide
discretion in the choice of the means to be used. In this area the obligation they enter into
under Article 11 of the Convention is an obligation as to measures to be taken
and not as to results to be achieved”. (para.34)
The “prescribed by law” requirement
25.
The
“prescribed by law” requirement in Article 39(2) of the Basic Law was
considered by this Court in Shum Kwok Sher. In that case, the Court held that the common
law offence of misconduct in public office was sufficiently precise to satisfy
the criteria of “prescribed by law”.
26.
In
his judgment in Shum Kwok Sher, Sir Anthony Mason NPJ, taking into
account a range of comparative materials, held that, consistently with
international human rights jurisprudence, the expression “prescribed by law” in
Article 39(2) mandates the principle of legal certainty (at para.60).
27.
To
satisfy this principle, certain requirements must be met. It must be adequately accessible to the
citizen and must be formulated with sufficient precision to enable the citizen
to regulate his conduct. As pointed out
by Sir Anthony Mason NPJ (at para.63), the explanation of these requirements in
the often quoted passage in the majority judgment of the European Court of
Human Rights in Sunday Times v. United Kingdom (No.1) (1979 – 80) 2 EHRR
245 (at para.49, p.271), the “thalidomide” case, is of assistance :
“First, the law must be adequately accessible : the
citizen must be able to have an indication that is adequate in the
circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a
‘law’ unless it is formulated with sufficient precision to enable the citizen
to regulate his conduct : he must be able – if need be with appropriate advice
– to foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail.
Those consequences need not be foreseeable with absolute certainty :
experience shows this to be unattainable.
Again, whilst certainty is highly desirable, it may bring in its train
excessive rigidity and the law must be able to keep pace with changing
circumstances. Accordingly, many laws
are inevitably couched in terms which, to a greater or lesser extent, are vague
and whose interpretation and application are questions of practice.”
28.
There
is an inevitable tension between requiring a law to be formulated with
sufficient precision and the desirability of avoiding excessive rigidity in the
law. The appropriate level of precision
must depend on the subject matter of the law in question. See Shum Kwok Sher at para.64.
29.
A
law which confers discretionary powers on public officials, the exercise of
which may interfere with fundamental rights, must give an adequate indication
of the scope of the discretion. The degree of precision required of the law in this
connection will depend upon the particular subject matter of the discretion. Malone v. United Kingdom (1984) 7 EHRR
14 at para.68. See also Silver v United Kingdom (1983) 5 EHRR 347 at para.88
and Sunday Times v. United Kingdom at para.49.
In Malone v. United Kingdom, the police had tapped the applicant’s telephone conversation in the
course of a criminal investigation. The
European Court of Human Rights held that this was an interference with his
right to respect for his “private life” and “correspondence” under art. 8
of the European Convention (para.64).
The issue was whether the interference was “in accordance with law” as
required by art. 8(2), which mandates the principle of legal
certainty. The Court held that English
law did not indicate with reasonable clarity the scope and manner of exercise
of the relevant discretion conferred on the public authorities in the field of
interception of communications. Accordingly, the interferences with his right under
art. 8 were not “in accordance with law” (paras.79 and 80).
The necessity requirement
30.
Turning
to the constitutional requirement of necessity, any restriction on the right of
peaceful assembly must be 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.
31.
As
the Court has held, the word “necessary” in this requirement should be given
its ordinary meaning and no assistance is to be gained by substituting for
“necessary” a phrase such as “pressing social need”. HKSAR v. Ng Kung Siu (1999) 2 HKCFAR
442 at 460 F-G; Ming Pao Newspapers Limited v. Attorney-General [1996]
AC 907 at 919 G-H.
32.
The
Siracusa Principles on the limitation and derogation provisions in the ICCPR
agreed to in 1984 by a group of experts (“the Siracusa Principles”)
state that, while there is no single model of a democratic society, a society
which recognizes and respects the human rights set forth in the United Nations
Charter and the Universal Declaration of Human Rights may be viewed as meeting
the definition of a democratic society.
This view is consistent with that of the European Court of Human Rights
that the hallmarks of a democratic society include pluralism, tolerance and
broadmindedness. Handyside v. United
Kingdom (1976) 1 EHRR 737 at para.49; Smith and Grady v. United Kingdom
(1999) 29 EHRR 493 at para.87.
The proportionality test
33.
The
Court has accepted that the constitutional requirement of necessity involves
the application of a proportionality test.
Ng Kung Siu at 461 A-B.
See also Ming Pao Newspapers Ltd v. Attorney-General [1996] AC
907 at 917 D-E. In Ng Kung Siu,
the Court considered the constitutionality of the statutory prohibition of
desecration of the national and regional flags with criminal sanctions. The Court, applying the proportionality test,
examined whether the limited restriction by such prohibition on the guaranteed
right to freedom of expression is proportionate to the aims sought to be
achieved thereby. The Court answered
that question in the affirmative. Ng
Kung Siu at 461.
34.
The
use of a proportionality principle in examining whether a restriction of a
fundamental right is necessary in a democratic society is consistent with the
approach to constitutional review in many jurisdictions. See for example : Handyside v. United
Kingdom at para.49; Sunday Times v. United Kingdom at para.62; Norris
v. Ireland (1991) 13 EHHR 186 at para.41 (the European Court of Human
Rights); R (Daly) v. Home Secretary [2001] 2 AC 532 at para.27; R v.
Shayler [2003] 1 AC 247 at paras.60 and 61 (United Kingdom); R v. Oakes
(1986) 26 DLR (4th) 200 (Canada); De Freitas v. Ministry of Agriculture
[1999] 1 AC 69 (Privy Council); S. v. Makwanyane 1995 (3) SA 391 (South
Africa). See also Dr M Nowak : UN
Covenant on Civil and Political Rights : CCPR Commentary (1993) (“Nowak”)
at 379. Although the terms in which the
proportionality test is formulated for application may vary from one
jurisdiction to another, having regard to matters such as the text of the
constitutional instrument in question and the legal history and tradition
informing constitutional interpretation in the jurisdiction concerned, the
nature of the proportionality principle is essentially the same across the
jurisdictions.
35.
By
applying a proportionality test for considering any restriction on the right of
peaceful assembly, a proper balance is struck between the interests of society
on the one hand and the individual’s right of peaceful assembly on the
other. In formulating the terms of the
proportionality test in the Hong Kong context, it is of critical importance to
bear in mind that the legitimate purposes for restriction of this right have
been set out in the relevant constitutional text. It must be emphasised that the legitimate
purposes specified in Article 21 of the ICCPR are the only legitimate
purposes. This list is exhaustive. There cannot be a restriction for any other
purpose. This is in contrast to
constitutional instruments where the test for restriction is formulated only as
a general formula, for example, by reference to what is necessary in a
democratic society, without any specification of the purposes that may
legitimately be pursued by a restriction.
36.
As
the legitimate purposes that may be pursued by any restriction on the right of
peaceful assembly have been constitutionally specified in Hong Kong, the
proportionality test should be formulated in these terms : (1) the restriction
must be rationally connected with one or more of the legitimate purposes; and
(2) the means used to impair the right of peaceful assembly must be no more
than is necessary to accomplish the legitimate purpose in question.
37.
In
De Freitas v. Ministry of Agriculture, the Privy Council was
concerned with the constitutionality of a statute restricting civil servants’
freedom of speech in relation to any information or expressions of opinion on
matters of political controversy. One of
the requirements for restriction specified in the constitutional instrument in
question was that it must be reasonably justifiable in a democratic
society. See p.74 B and p.80 C. In relation to this requirement, the Privy
Council adopted a three stage test which has been extensively cited in many
jurisdictions :
“whether : (i) the legislative objective is
sufficiently important to justify limiting a fundamental right; (ii) the
measures designed to meet the legislative objective are rationally connected to
it; and (iii) the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.” (at p.80 G)
38.
Compared
to the proportionality test formulated above for Hong Kong, the De Freitas
test has incorporated an extra requirement, namely whether the legislative
objective is sufficiently important to justify limiting a fundamental
right. The Privy Council considered this
extra requirement appropriate in De Freitas as the relevant
constitutional instrument prescribed only the general formula of what is reasonably
justifiable in a democratic society without specifying the permissible purposes
for which a restriction could be imposed.
In contrast, in the Hong Kong context, in relation to the right of
peaceful assembly, the legitimate purposes for which a restriction may be
imposed on the right are constitutionally set out in a comprehensive
manner. That being so, the extra
requirement, whatever its relevance may be in other situations, is unnecessary
in the present context.
39.
Having
discussed the relevant constitutional provisions and the constitutional
requirements for restriction, one can turn to the statutory scheme for the
regulation of public processions contained in the Ordinance.
Background of the Ordinance
40.
The
Ordinance assumed its present form after enactment by the Provisional
Legislative Council of the Public Order (Amendment) Ordinance (No. 119 of
1997), coming into effect on 1 July 1997.
41.
The
previous version of the Ordinance was the 1995 version after the amendments of
that year. Under that version, the
purposes for which the Commissioner could restrict the right of peaceful
assembly were limited to public safety or public order. On 23 February 1997, the Standing Committee
of the National People’s Congress of the People’s Republic of China adopted its
Decision on treatment of the laws previously in force in Hong Kong in
accordance with Article 160 of the Basic Law.
By this Decision, the Standing Committee decided that major amendments
to the Ordinance since 27 July 1995 were in contravention of the Basic Law
and those provisions were not adopted as the laws of the Hong Kong Special
Administrative Region.
42.
It
was to fill the lacuna resulting from the Standing Committee’s Decision which
would arise on 1 July 1997 that the Public Order (Amendment) Ordinance was
enacted. This was done after a public
consultation exercise with the issue of the Consultation Document on Civil
Liberties and Social Order by the Chief Executive’s Office in April 1997. As Mr McCoy for the respondent submits, the
statute enacted in 1997 represented a sincere effort to comply with the ICCPR
as applied to Hong Kong and there has been no suggestion that the law has in
practice been abused, with countless public processions having taken place
since it came into effect on 1 July 1997.
However, the Court’s duty is of course to adjudicate on the
constitutionality of the scheme as a matter of law.
The statutory scheme
Limited scope
43.
At
the outset, it is important to appreciate the limited scope of the Ordinance in
regulating public processions. The
statute only regulates public processions consisting of more than 30 persons on
a public highway or thoroughfare or in a public park. Section 13(2)(a) and (b). It will be convenient to refer to such a
public procession as “a public procession subject to the statutory scheme”. A public procession is defined as a
procession in, to or from a public place organized as such for a common purpose
and includes any meeting held in conjunction with such a procession. Public place is defined as any place to which
the public or any section of the public are entitled or permitted to have
access, whether on payment or otherwise.
Section 2(1).
44.
It
follows that (i) a public procession consisting of not more than
30 persons, even though it is on a public highway, or thoroughfare or in a
public park, or (ii) a public procession consisting of more than 30 persons,
but not on a public highway or thoroughfare or in a public park, is not subject
to the statute. A public procession of
the kind in (i) or (ii) may freely take place without the need to observe the
statutory requirements for a public procession subject to the statutory scheme.
45.
A public procession subject to the statutory scheme
may take place if and only if: (a) the Commissioner has been notified of the
intention to hold the procession (“the notification requirement”); (b)
the Commissioner has notified that he has no objection to the procession taking
place or is taken to have issued a notice of no objection (“the no objection
requirement”); and (c) the requirements under s. 15 of the
Ordinance are complied with (“the s. 15 requirements”). Section 13.
(a) The
notification requirement
46.
The features of the notification requirement may be
summarised as follows:
(1) Notice of the intention to hold the public procession must
be given in writing to the Commissioner.
Section 13A(1). The notice is
usually given by the organizer.
(2) Notice must be given one week before the intended date for
the procession. Section 13A(1)(b).
(3) The Commissioner has a discretion to accept shorter notice and must do so where he is reasonably satisfied that earlier notice could
not have been given. Section
13A(2). If he decides not to accept
shorter notice, he must inform the organizer in writing as soon as practicable
and state the reasons why shorter notice is not acceptable. Section 13A(3).
(4) The
written notice must be delivered to the officer in charge of a police station
and must contain particulars of (a) the name, address and telephone number of
(i) the organizer and any society or organization promoting or connected with
the holding of the procession and (ii) a person able to act, if necessary, in
place of the organizer for the purpose of s.15(1)(a) (which requires the
organizer, or a person nominated by him to act in his place, to be present
throughout the procession); (b) the purpose and subject matter of the
procession; (c) its date, precise route, time of commencement and duration; (d)
the location, time of commencement and duration of any meeting to be held in
conjunction with the procession and (e) an estimate by the organizer of the
number of people expected to attend the procession. The Commissioner must issue
a written acknowledgement of receipt of the notice. Section 13A(4) and (5).
(b) The no objection requirement
47.
Upon notification of the intention to hold a public
procession, the statute confers on the Commissioner a discretion to object to
the public procession being held
“if he reasonably considers that the objection is necessary in the
interests of national security or public safety, public order (ordre public) or
the protection of the rights and freedom of others.” Section 14(1).
It will be convenient to refer to the interests of
national security or public safety, public order (ordre public) and the
protection of the rights and freedoms of others collectively as “the statutory legitimate purposes”. It should be noted that compared to the
legitimate purposes set out in art. 21 of the ICCPR, the statutory
legitimate purposes are more limited in that the purpose of “the protection of
public health or morals” found in art. 21 has been omitted. Section
2(2) contains a direction as to how the statutory legitimate purposes should be
interpreted. It relevantly provides :
“In this Ordinance the expressions ‘public safety’,
‘public order (ordre public)’, … and ‘the protection of rights and freedoms of
others’ are interpreted in the same way as under [the ICCPR] as applied to Hong
Kong. ‘national security’ means the safeguarding
of the territorial integrity and the independence of the People’s Republic of
China.”
48.
If the Commissioner objects, he must do so as soon
as practicable and in any event within the statutory time limits. His objection and the reasons must be
notified in writing to the organizer. Section
14(2). The time limit varies depending
on when notification is given: (a) where one week’s notification is given,
the time limit is not later than 48 hours before the notified commencement time
of the procession; (b) where shorter notice of 72 hours or more has been
accepted by the Commissioner, it is not later than 24 hours before the notified
commencement time; (c) where shorter notice of less than 72 hours has
been accepted by the Commissioner, it is not later than the notified
commencement time. Section 14(3).
49.
If the Commissioner does not object, he must notify
the organizer in writing as soon as practicable and in any event within the
statutory time limit. In the absence of
notification of objection within the time limit, the Commissioner is taken to
have issued a notice of no objection.
Section 14(4).
50.
Under the statutory scheme, the Commissioner is
obliged not to object if he reasonably considers that the relevant statutory
legitimate purpose could be met by imposing conditions. Section 14(5). The test for the exercise of his discretion
to impose conditions is in identical terms to that of his discretion to object,
namely “where [the Commissioner] 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”, that is, for the statutory
legitimate purposes. As has been noted, the statutory
legitimate purposes of “public safety”, “public order (ordre public)” and “the protection of
the rights and freedoms of others” must be interpreted in the same way as under the ICCPR in accordance
with the direction in s.2(2). Where the
Commissioner decides to impose any condition, he must give written notice to
the organizer and state the reasons why such condition is considered
necessary. Section 15(2). The Commissioner may later amend any
condition imposed. As with the imposition
of the earlier condition, he must similarly give written notice and state the
reasons. Section 15(3).
51.
Although the statute does not specify the time
limits within which the Commissioner must give notice of the conditions
imposed, as a matter of statutory interpretation, he must do so within a
reasonable time. What is a reasonable
time in a particular case would depend on all the circumstances, including when
the proposed procession was notified, when the proposed procession is to take
place and the subject matter of the condition imposed. In this connection, the statutory time limits
for objection may be considered as a useful reference point. Where the Commissioner imposes a condition, in order to avoid any
misunderstanding, his notice to the organizer should clearly state the
condition imposed and should distinguish it from other matters (not being
conditions), such as advice on practical matters or reminders of statutory
provisions, which he may consider it appropriate to put in the notice.
52.
The Commissioner’s discretion to object and his
discretion to impose conditions are only delegable to police officers at a
senior level, that is, of the rank of inspector or above. Section 52.
(c) The s.15 requirements
53.
At every public procession subject to the statutory
scheme:
(a) the
organizer must be present throughout the procession or if he is not present,
there must be a person nominated by him to act in his place;
(b) good
order and public safety must throughout be maintained; and,
(c) the
control of any amplification device that is used in such a manner that it
causes noise that would not be tolerated by a reasonable person must be
surrendered to a police officer, if so required, for the duration of the
procession. Section 15(1).
The
Commissioner’s discretion to restrict
54.
The
Commissioner’s discretion to object to a notified public procession and his
discretion to impose conditions are expressed in identical terms and will
simply be referred to collectively as “the discretion to restrict”. The test for its exercise is if the
Commissioner reasonably considers that the objection or the condition is
necessary for the statutory legitimate purposes, including “public order (ordre
public)” (“the statutory test of necessity”). The test imposed is an objective test.
55.
The
provenance of the statutory test of necessity is immediately recognizable. It incorporates the necessity requirement in
art. 21 of the ICCPR (corresponding to art. 17 of BORO). And s.2(2) of the Ordinance directs that the
statutory legitimate purposes of “public safety”, “public order (ordre public)” and “the protection of
the rights and freedoms of
others” must be
interpreted in the same way as under the ICCPR as applied to Hong Kong. This technique of incorporating the ICCPR
into a statute is an unusual one.
56.
Although
the direction on interpretation in s.2(2) does not specifically cover the
expression “necessary” and the statutory test of necessity does not refer to
the expression “in a democratic society” found in art. 21 of the ICCPR,
the clear legislative intent, evident from the incorporation of the ICCPR
necessity requirement into the statute, is that the statutory necessity test
should be interpreted and approached in the same way as the necessity
requirement found in art. 21.
57.
As
the ICCPR necessity requirement involves the application of a proportionality
test, it follows that that test must also be applied in relation to the
statutory necessity test. The
Commissioner has a discretion to restrict the right of peaceful assembly, by
objecting to or by imposing conditions on a notified public procession. In deciding whether and if so what restriction
to impose in the exercise of his discretion, the Commissioner must consider:
(1) whether a potential restriction is rationally connected with one or more of
the statutory legitimate purposes; and (2) whether the potential
restriction is no more than is necessary to accomplish the legitimate purpose
in question.
58.
As
discussed above, the conclusion that the proportionality test must be applied
is based on the incorporation of the ICCPR necessity requirement into the
Ordinance. As has been observed, this is
an unusual technique. Even if this
technique had not been used, although it is unnecessary to decide the point,
the position would appear to be that, by virtue of art. 39(2) of the Basic
Law, the proportionality test would in any event have to be applied in
exercising a statutory discretion that may restrict the right of peaceful
assembly. That Article provides that, in
addition to the “prescribed by law” requirement, any restriction must not
contravene the provisions of the ICCPR as applied to Hong Kong. As the ICCPR necessity requirement contained
in art. 21 involves the application of a proportionality test, that test
would have to be applied by virtue of art. 39(2).
Duty
to give reasons
59.
As
has been stated, the Commissioner is under a statutory duty to give reasons
where he decides not to accept shorter notice and where he objects to or
imposes conditions on a notified procession.
The duty is to give adequate reasons.
Plainly, the bald assertion of a conclusion would not be
sufficient. Where the Commissioner
decides to object or to impose conditions, the reasons given must be sufficient
to show that he has properly applied the proportionality test in making his
decision.
Appeals
60.
The statutory scheme provides for an appeal to an
Appeal Board against a decision by the Commissioner to object to a public
procession or to impose conditions. A
person, society or organization (i) named in the notice of intention to
hold a public procession; or (ii) to whom a notice of objection is given,
who is aggrieved by such a decision, is entitled to appeal. Section 16(1).
61.
The Chief Executive appoints a Chairman and a panel
of 15 persons, including two Deputy Chairmen, for a term of not more than two
years and they may be reappointed. The
Chairman must be a retired Judge of the High Court or the District Court or a retired magistrate who
has served for more than 10 years.
Sections 43(2), 43(3) and 43(4).
The Appeal Board for an appeal consists of four members; the Chairman
(or a Deputy Chairman) and three persons selected in rotation in accordance
with the alphabetical order of their surnames from the panel. Section 44(1). Decision is by majority, with the Chairman
(or Deputy Chairman) having a casting vote in the case of an equality of
votes. Section 44(2).
62.
The Appeal Board must consider and determine an
appeal “with the greatest expedition possible so as to ensure that the appeal
is not frustrated” by reason of its decision being delayed until after the date
on which the public procession is proposed to be held. Section 44A(6). It may receive and consider any material,
whether or not admissible in a court of law.
Section 44(3). The appeal is an
appeal on the merits. The Appeal Board
may confirm, reverse or vary the objection or condition appealed from. Section 44(4). Although not expressly stated in the statute,
the Appeal Board is under a duty implied by law to give reasons.
Police powers and criminal offences
63.
The Ordinance confers various powers on the police and provides for various criminal
sanctions. See s.17 and s.17A. The powers of the police include preventing the holding of, stopping or
dispersing any public procession which takes place in contravention of the
notification, the no objection or the s.15 requirements or where any condition
imposed by the Commissioner has been contravened. For present purposes, two criminal offences
should be referred to. First, if a
public procession subject to the statutory scheme takes place without complying
with the notification or the no objection requirement, the public procession
becomes an unauthorized assembly.
Section 17A(2)(a). Every person
who holds or assists in holding a public procession after the same has become
an unauthorized assembly is guilty of an offence. The maximum penalty is five years’
imprisonment on conviction on indictment or a fine of $5,000 and three years’
imprisonment on summary conviction.
Section 17A(3)(b)(i). The
appellants were summarily
convicted of this offence. In spite of the warning by the
police, the notification requirement was not complied with and the public
procession in question became an unauthorized assembly. Secondly, every organizer of a public
procession (or any person acting in place of such person for the purpose of the
requirement in s.15(1)(a) of having to be present throughout) must comply
forthwith with a police officer’s direction for ensuring compliance with or
performance of the requirements in s.15(1) or any condition imposed by the
Commissioner. Section 15(4). Any person who without reasonable excuse
fails to comply with such a direction commits an offence. The maximum penalty is a fine of $5,000 and 12 months’
imprisonment.
Judicial review
64.
As
has been noted, the Commissioner’s decision to object to or to impose
conditions on a notified public procession is subject to appeal to the Appeal
Board. Assuming it is confirmed by the
Appeal Board, the Commissioner’s decision as so confirmed, is of course subject
to judicial review. The Commissioner is
bound to apply the proportionality test in the exercise of his discretion to
restrict the right of peaceful assembly.
On judicial review, the court will consider whether the Commissioner has
properly applied this test.
Focus
of challenge
65.
It
was not seriously argued that the mere statutory requirement for notification
is unconstitutional. Plainly, such an
argument would be untenable. Apart from
anything else, notification is required to enable the Police to fulfil the
positive duty resting on Government to take reasonable and appropriate measures
to enable lawful demonstrations to take place peacefully. The statutory requirement for notification is
constitutional. A legal requirement for
notification is in fact widespread in jurisdictions around the world.
66.
As
has been noted, the focus of the constitutional challenge is on the contention
that the Commissioner’s discretion to restrict the right of peaceful assembly
for the purpose of “public order (ordre public)” fails to satisfy the two
constitutional requirements for restriction : (1) the “prescribed by law”
requirement; and (2) the necessity requirement, on the ground that the concept
of “public order (ordre public)” is too wide and uncertain.
(1)
The constitutional requirement of “prescribed by law”
67.
In
considering whether the Commissioner’s discretion in relation to “public order
(ordre public)” satisfies the constitutional requirement of “prescribed by
law”, it is essential to distinguish between the use of the concept at the
constitutional level on the one hand and its use at the statutory level on the
other.
The
constitutional level
68.
The
concept of “public order (ordre public)” operates at the constitutional level
in Hong Kong. This is because
art. 39(2) of the Basic Law requires any restriction of rights and
freedoms to comply with the ICCPR as applied to Hong Kong, and the concept is
specified in a number of ICCPR articles as a legitimate purpose for the
restriction of rights, including the right of peaceful assembly.
69.
There
is no doubt that the concept of “public order (ordre public)” includes public
order in the law and order sense, that is, the maintenance of public order and
prevention of public disorder. But it is
well recognised that it is not so limited and is much wider. See for example, Ng Kung Siu at
457 F-H, Police v. Beggs [1999] 3 NZLR 615 at 630; Nowak on
art. 19 at p. 355-6 (para. 45), and on art. 21 at p. 380-1
(para. 24).
70.
But the concept is an imprecise
and elusive one. Its boundaries beyond
public order in the law and order sense cannot be clearly defined. Ng Kung Siu at 459I-460A. “[It] is a concept
that is not absolute or precise and cannot be reduced to a rigid formula but
must remain a function of time, place and circumstances”: Chapter 12 by
Kiss on “Permissible Limitations on Rights” in Henkin (ed.): The International
Bill of Rights (1981) 290 (“Kiss”) at 302.
71.
The
Siracusa Principles state that it :
“may
be defined as the sum of rules which ensure the functioning of society or the
set of fundamental principles on which society is founded. Respect for human rights is part of public
order (ordre public).” (para. 22)
The Principles also state that
it must be interpreted in the context of the purpose of the particular human
right which is limited on this ground (para. 23). The discussion by Kiss strikes the
same chord in referring to what is necessary to the collectivity. He concludes his discussion in the following
terms (at 302) :
“In
sum: [public order (ordre public)] may be understood as a basis for restricting
some specified rights and freedoms in the interest of the adequate functioning
of the public institutions necessary to the collectivity when other conditions,
discussed below, are met. Examples of
what a society may deem appropriate for the ordre public have been indicated:
prescription for peace and good order; safety; public health; esthetic and
moral considerations; and economic order (consumer protection, etc). It must be remembered, however, that in both
civil law and common law systems, the use of this concept implies that courts
are available and function correctly to monitor and resolve its tensions with a
clear knowledge of the basic needs of the social organisation and a sense of
its civilised values.”
The other conditions referred to in
this passage relate to the requirement of legal certainty (with expressions
such as “provided by law”, “prescribed by law”, “in conformity with law” and
“in accordance with law” found in the ICCPR) and the requirement of “necessary
in a democratic society”. Nowak
is to similar effect in stating:
“… in addition to the prevention of disorder
and crime, it is possible to include under the term ordre public all of
those ‘universally accepted fundamental principles, consistent with respect for
human rights, on which a democratic society is based’”. (at 356, para. 45; see
also at 381 para. 24)
72.
It
may readily be appreciated that notions such as “the sum of rules which ensure
the functioning of society or the set of fundamental principles on which
society is founded”, “in the interest of the adequate functioning of the public
institutions necessary to the collectivity” and “universally accepted
fundamental principles, consistent with respect for human rights, on which a
democratic society is based” are notions which by their nature are somewhat
vague.
73.
A
constitutional norm is usually and advisedly expressed in relatively abstract
terms. There is no question of
challenging a constitutional norm and the concept “public order (ordre public)”
as a constitutional norm must be accepted.
74.
Indeed,
in Hong Kong, the courts have dealt with the concept at a constitutional level
and have determined whether a particular matter falls within the concept. In Ng Kung Siu, the Court considered
the concept in the context of a restriction on the freedom of speech under
art. 19 of the ICCPR (corresponding to art. 16 of BORO). It held that the concept includes the
legitimate interests in the protection of the national and regional flags. In Secretary for Justice v. Oriental Press
Group Ltd [1998] 2 HKLRD 123, the Court of First Instance held that the
contempt of court offences under the common law of scandalising the court and
the interference with the administration of justice as a continuing process
constitute permissible restrictions on the freedom of expression. The decision was upheld by the Court of
Appeal [1999] 2 HKLRD 293. The Court of
First Instance held that the due administration of justice is within the
concept of “public order (ordre public)”.
This was conceded in the Court of Appeal (at 307I).
The
statutory level
75.
As has been observed, adopting an unusual technique, the
concept of “public order (ordre public)” used in the ICCPR has been
incorporated into the Ordinance in relation to the Commissioner’s
discretion. The question therefore
arises whether the Commissioner’s discretion to restrict the right of peaceful
assembly for the purpose of “public order (ordre public)” satisfies the
constitutional requirement of “prescribed by law”.
76.
In
contrast to the use of the concept which is relatively abstract at the
constitutional level, different considerations apply to its deployment at the
statutory level. A statutory discretion
conferred on a public official to restrict a fundamental right must satisfy the
constitutional requirement of “prescribed by law”. Such a discretion must give an adequate
indication of the scope of the discretion with a degree of precision
appropriate to the subject matter. The
public official is part of the executive authorities which of course stand in a
fundamentally different position from that of an independent Judiciary.
77.
Here,
the subject matter of the discretion is the regulation of public processions
subject to the statutory scheme. As the
situations that may arise for his consideration are of an infinite variety and
would involve many different circumstances and considerations, it is important
for the Commissioner to have a considerable degree of flexibility. But even taking this into account, the
Commissioner’s discretion to restrict the right of peaceful assembly for the
statutory purpose of “public order (order public)” plainly does not give an
adequate indication of the scope of that discretion. This is because of the inappropriateness of
the concept taken from the ICCPR as the basis of the exercise of such a
discretionary power vested in the executive authorities. That being so, the Commissioner’s discretion
to restrict the right for the purpose of “public order (ordre public)” falls
foul of the constitutional requirement of “prescribed by law”. Compare Gurung Kesh Bahadur at
para.34. Accordingly, the Commissioner’s
discretion in relation to the purpose of “public order (ordre public)” in
ss. 14(1), 14(5) and 15(2) of the Ordinance must be held to be
unconstitutional.
78.
It
should be noted that apart from the provisions dealing with public processions
subject to the statutory scheme, there are provisions in the Ordinance
conferring on the Commissioner the discretion to restrict the right of peaceful
assembly in other contexts where he reasonably considers it necessary in the
interests of “public order (ordre public)”; for example in relation to public
meetings subject to the scheme. Although
the question does not arise in this appeal, having regard to the above
conclusion, the validity of the discretion in relation to the purpose of “public
order (ordre public)” in such contexts must be regarded as doubtful.
Remedy
79.
Having
regard to the above conclusion on the issue of constitutionality, the question
as to the appropriate remedy must now be addressed.
80.
Mr
McCoy SC for the Government submits that “public order (ordre public)” should
be read down to mean “serious disruption to the life of the community”. This is an expression found in the Public
Order Act 1986 in England; see s.12(1).
There is no basis for reading down in this way and this submission must
be rejected.
81.
Mr
McCoy SC advances the alternative submission that “public order (ordre public)”
should be read down to mean the matters covered by art. 20 of the ICCPR. As has
been noted, this Article is part of the ICCPR as applied to Hong Kong, although
it was not incorporated into BORO.
Article 20 requires prohibition by law of any propaganda for war and any
advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence.
There is no basis for reading down “public order (ordre public)” in this
way and this submission must also be rejected.
It may well be argued that specific legislation providing for the
restriction of the right of peaceful assembly for the purpose of enforcing the
art. 20 prohibitions may be justified not only on the basis of the
specific requirement of that Article, but also on the basis that society has
legitimate interests in such prohibitions and that such interests may be
regarded as within “public order (ordre public)” as a constitutional norm. Whether such an argument is correct does not
need to be decided. But even
if correct, it does not provide a basis for reading down “public order (ordre
public)” as suggested.
Severance
82.
As
has been held, the Commissioner’s discretion with “public order (ordre public)”
as a purpose does not satisfy the “prescribed by law” requirement. But there is no doubt that it covers public
order in the law and order sense, that is, the maintenance of public order and
prevention of public disorder. Public
order in this sense will simply be referred to as “public order” as
distinguished from “public order (ordre public)”.
83.
As
public order is sufficiently certain, the Commissioner’s discretion to restrict
the right of peaceful assembly for this purpose would give an adequate
indication of its scope. It would
satisfy the constitutional requirement of “prescribed by law” and would be
constitutionally valid. That being so,
the essential question is whether the appropriate remedy is to sever public
order from “public order (ordre public)”.
With such severance, one would only be left with public order. The part which is constitutionally valid
remains after the severance of the part which is constitutionally invalid.
84.
In
Ming Pao Newspapers Ltd v. Attorney-General at 921E, the Privy Council
adopted the following approach on severance which had been stated in Attorney-General
for Alberta v. Attorney-General for Canada [1947] AC 503 at 518:
“The real question is whether what remains is so inextricably bound
up with the part declared invalid that what remains cannot independently
survive or, as it has sometimes been put, whether on a fair review of the whole
matter it can be assumed that the legislature would have enacted what survives
without enacting the part that is ultra vires at all.”
Ng Ka Ling at 39D-F; De Freitas v. Ministry of Agriculture 79D-81B;
Independent Jamaica Council for Human Rights v. Marshall-Burnett [2005]
2 WLR 923 at para. 22. See also Vriend
v. Alberta (1998) 156 DLR (4th) 385 at para. 167; Schachter v.
Canada (1992) 93 DLR (4th) 1 at 13-14.
85.
Applying
this approach, the constitutional part remaining after severance, namely public
order, can independently survive. It can
be said with confidence that had the Legislature appreciated the
unconstitutionality of the rest of “public order (ordre public)” in the context
of the Commissioner’s discretion to restrict the right of peaceful assembly, it
would nevertheless have enacted the statute only with public order. Accordingly, the proper remedy is to sever
public order from “public order (ordre public)” in ss. 14(1), 14(5) and
15(2) of the Ordinance.
The
protection of the rights and freedoms of others
86.
Article
21 of the ICCPR (corresponding to art. 17 of BORO) provides that the
protection of the rights and freedoms of others is a legitimate purpose for
restricting the right of peaceful assembly.
Using the unusual technique which has been referred to, the statute has
incorporated it as a purpose in relation to the Commissioner’s discretion to
restrict the right and has directed in s.2(2) that it should be interpreted in
the same way as under the ICCPR. As with
“public order (ordre public)”, it is important to distinguish its function as a
constitutional norm in the ICCPR from its use at the statutory level.
87.
As
Mr Martin Lee SC for the 2nd and 3rd appellants fairly accepts, full
arguments have not been addressed on the question whether the Commissioner’s
statutory discretion in relation to the purpose of the protection of the rights
and freedoms of others complies with the constitutional requirement of
“prescribed by law” and it would not be appropriate for any concluded view to
be expressed on this question.
88.
However,
it must be pointed out that in the context of the ICCPR, the rights and
freedoms of others are not limited to those found in the ICCPR. Nowak: Article 21 p.382 (para.28)
and art. 19 p.354 (para.41). The
scope of the additional rights and freedoms that are covered may be
debatable. As the meaning of the expression
in the ICCPR has been incorporated into the Ordinance by s.2(2), it can be
seriously argued that in the context of the Commissioner’s statutory discretion
to restrict the right of peaceful assembly, a purpose based on a notion of such
wide and imprecise import does not satisfy the constitutional requirement of
“prescribed by law”.
(2) The constitutional requirement of
necessity
89.
After
severance, it would not be meaningful to deal with the question whether the
Commissioner’s statutory discretion in the state which it was before severance
satisfies the constitutional requirement of necessity. It is the position after severance which
should be considered.
The proportionality test
90.
As
has been discussed in relation to the constitutional requirement of necessity,
the proportionality test has to be applied, that is: (a) whether the
Commissioner’s statutory discretion to restrict the right of peaceful assembly
for the purpose of public order is rationally connected with the wider
constitutional legitimate purpose of “public order (ordre public)”; and
(b) whether such a statutory discretion is no more than is necessary to
accomplish that constitutional purpose.
91.
The
first limb of the proportionality test is obviously satisfied. The constitutional purpose of public order
within “public order (ordre public)” is incorporated into the statute and the
statutory discretion is of course rationally connected with the legitimate
purpose laid down at the constitutional level.
92.
In
considering the second limb, the following matters must be taken into account :
(1)
The right of peaceful assembly
involves a positive duty on the part of Government to take reasonable and
appropriate measures to enable lawful assemblies to take place peacefully.
(2)
The
statutory scheme is limited to the regulation of public processions consisting
of more than 30 persons on a public highway or thoroughfare or in a public
park.
(3)
Upon being
notified of a public procession, the Commissioner would have to consider
various facets of public order such as traffic conditions and crowd
control. Depending on the case in
question, factors that may be relevant include the date and time of the
proposed procession, the topography of the route, the possible presence of
rival groups and the reaction of members of the public. The Commissioner has to approach the matter
in a flexible manner but his discretion to object or to impose condition is
constrained: In considering its
exercise, the Commissioner must apply the proportionality test: Whether the
potential restriction (i) is rationally connected with the purpose of public
order; and (ii) is no more than is necessary to accomplish that purpose.
(4)
If the
Commissioner objects to the proposed public procession, he must do so within
the statutory time limits. And where he
imposes conditions, he must do so within a reasonable time.
(5)
If the
Commissioner objects or imposes conditions, he is under a duty to give reasons
which must be adequate.
(6)
His
decision is subject to appeal to the Appeal Board. And his decision, assuming it is upheld by
the Appeal Board, is subject to judicial review.
93.
Taking
into account all these matters, the Commissioner’s discretion to restrict the
right in relation to public order should be held to be no more than is
necessary to accomplish the constitutional legitimate purpose of “public order (ordre public)”. It is limited to public processions
consisting of more than 30 persons on a public highway or thoroughfare or in a
public park. The discretion is of assistance in enabling Government to fulfil
its positive duty. It is a limited
discretion, constrained by the proportionality test. Adequate reasons have to be given for any
objection or imposition of conditions.
There is a right of appeal and a right of recourse to judicial review.
94.
Accordingly,
the Commissioner’s statutory discretion to restrict the right of peaceful
assembly for the purpose of public order must be held to satisfy the
proportionality test and therefore the constitutional necessity requirement.
Summary
95.
In
summary, the conclusions reached on the question of constitutionality are :
(1)
The Commissioner’s statutory
discretion to restrict the right of peaceful assembly for the purpose of
“public order (ordre public)” provided for in ss. 14(1), 14(5) and 15(2)
of the Ordinance does not satisfy the constitutional requirement of “prescribed
by law” and is unconstitutional.
(2)
The
appropriate remedy is the severance of public order (in the law and order
sense, that is, the maintenance of public order and prevention of public
disorder) from “public order (ordre public)” in such provisions.
(3)
After
severance, the Commissioner’s discretion in relation to public order satisfies
the constitutional requirements of “prescribed by law” and necessity and is
constitutional.
96.
In relation to the exercise of
his statutory discretion to restrict the right of peaceful assembly, it must be
emphasised that the Commissioner must, as a matter of law, apply the
proportionality test. He must consider
whether a potential restriction is rationally connected with one or more of the
statutory legitimate purposes and whether the potential restriction is no more
than is necessary to accomplish the legitimate purpose in question. His discretion is thus not an arbitrary one
but is a constrained one. The
proportionality test is well recognized internationally as appropriate in
relation to the protection of fundamental rights. The legal requirement to apply it in this
context ensures the full protection of the fundamental right of peaceful
assembly against any undue restriction.
Disposal of appeal
97.
The
offences for which the appellants were convicted did not relate to the
statutory provisions conferring on the Commissioner the discretion to object or
to impose conditions on a public procession where he considers it reasonably
necessary in the interests of “public order (ordre public)”. The offences arose out of the holding of a
public procession without complying with the statutory notification
requirement. The holding that “public
order (ordre public)” in the relevant statutory provisions is unconstitutional
and that public order should be severed from it does not affect the
convictions. Accordingly, the appeal
must be dismissed and the convictions upheld.
Costs
98.
The
parties should respectively provide in writing within 14 days any submissions
as to the appropriate costs order.
Mr Justice Bokhary PJ:
99.
This appeal arises out of a
prosecution which the appellants deliberately brought upon themselves in order
to advance the cause of free assembly by challenging the constitutionality of our
statute law regulating public gatherings.
Such law consists of two schemes.
Each permits prior restraint backed by criminal sanctions. One entitles the Commissioner of Police to
notification of public processions and empowers him to object to or control
them. The other is a similar scheme for
public meetings. In regard to public
meetings the statute speaks in terms of prohibition. Objection and prohibition come to the same
thing, namely a ban.
100.
The processions challenge is
direct in that the public gathering giving rise to the prosecution was a
procession. But the meetings challenge
is consequential. It is a consequence of
the two schemes being so similar that a judgment striking down or reading down
one scheme or part of it would similarly impact upon the other scheme.
Freedoms
engaged
101.
By its nature each of those
schemes engages the freedoms of assembly, procession and demonstration. Article 27 of our constitution the Basic Law
guarantees these freedoms for Hong Kong residents. And art. 41 extends the guarantee to persons
in Hong Kong other than residents.
Neither article specifies any restriction that can be placed on the
freedoms which it guarantees. What these
freedoms entail is a matter of interpretation.
The courts always interpret fundamental rights and freedoms generously
so as to ensure their enjoyment in full measure.
102.
That interpretative approach is
in no way diminished by the permissible restrictions specified in the Hong Kong
Bill of Rights which is based essentially on the International Covenant on
Civil and Political Rights albeit with some modifications. To illustrate what I mean by modifications, I
would point to art. 21 of the Bill of Rights and art. 25 of the
International Covenant on Civil and Political Rights. They confer the same right to participate in
public life. But the former confers that
right on permanent residents in Hong Kong while the latter confers it on
citizens in their country. In the
indigenous villagers case of Secretary for Justice v. Chan Wah (2000) 3
HKCFAR 459 we applied the former. We
could not have applied the latter.
Previously the Bill of Rights was entrenched by the Letters Patent
(which together with the Royal Instructions constituted Hong Kong’s
pre-handover constitutional instruments).
The Bill of Rights is now, as we said in the arbitration appeal case of Swire
Properties Ltd v. Secretary for Justice (2003) 6 HKCFAR 236 at p.258 I,
entrenched by art. 39 of the Basic Law.
103.
Taken word-for-word from art.
21 of the International Covenant on Civil and Political Rights, art. 17 of the
Bill of Rights provides that:
“The
right of peaceful assembly shall be recognized.
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.”
That is to be read side-by-side with arts 27 and 41 of the
Basic Law. Article 27 provides that:
“ Hong Kong
residents shall have freedom of speech, of the press and of publication;
freedom of association, of assembly, of procession and of demonstration; and
the right and freedom to form and join trade unions, and to strike.”
And art. 41, which appears in the same chapter of the
Basic Law, provides that:
“ Persons in the Hong Kong
Special Administrative Region other than Hong Kong residents shall, in
accordance with law, enjoy the rights and freedoms of Hong Kong residents
prescribed in this Chapter.”
104.
Article 27’s specific reference
to demonstrations displays particular insight into the practical aspects of
free assembly. It exemplifies the skill
of the Basic Law framers of which Lord Cooke of Thorndon spoke in “The
Judge in an Evolving Society” (1998) 28 HKLJ 145 at p.145. Traditional rights and freedoms are better
understood when the constitutional text itself goes some way towards
identifying their day-to-day uses. As an
example of this, I would point to art. 31 of the Constitution of the Russian
Federation. That article (as given in
English in S E Finer, V Bogdanor and B Rudden: Comparing
Constitutions (1995) at p.254) speaks of “the right to assemble peacefully
without weapons and to hold meetings, rallies and demonstrations, processions
and pickets”.
105.
The Basic Law speaks of freedom
of assembly while the Bill of Rights speaks of the right of
assembly. Rights connote benefits
derived from duties owed by others while freedoms connote benefits derived from
the absence of restraint upon oneself.
Free assembly consists essentially of an absence of restraint but
includes, as the European Court of Human Rights held in Plattform Arzte für
das Leben v. Austria (1991) 13 EHRR 204, the right to positive protection
by the state of one’s exercise of this freedom.
Challenged
schemes
106.
Each of the challenged schemes
is contained in the Public Order Ordinance, Cap. 245. This Ordinance is one of the two statutes
containing post-handover amendments criticised by Prof. Yash Ghai in the
rights chapter of his valuable book Hong Kong’s New Constitutional Order,
2nd ed. (1999). At p.454 he said that “[t]here
has been no serious restrictions on rights since [the handover] save for the
amendments to the Public Order and Societies Ordinances”. Reference was made in the Court of Appeal to
what the United Nations Human Rights Committee said. In para. 19 of its 15 November 1999
Concluding Observations on Hong Kong, CCPR/C/79/Add.117 the Committee
expressed its concern that the Public Order Ordinance could be applied to “restrict
unduly” enjoyment of freedom of assembly.
This concern of the Committee’s was noted in the United States
Department of State’s 2000 Country Reports on Human
Rights Practices at p.804. The State
Department pointed out that this Court has not yet had the opportunity to rule
on the matter. This appeal is the first
such opportunity.
107.
Save where otherwise indicated,
all my references to statutory provisions will be to those of the Public Order
Ordinance. Public gatherings are of two
types: public meetings and public processions.
The scheme for public meetings is contained essentially in sections 7,
8, 9, 10, 11 and 12. It applies to most
public meetings of more than 500 persons in private premises or of more than 50
persons elsewhere. The scheme for public
processions is contained essentially in sections 13, 13A, 14 and 15. It applies to most public processions of more
than 30 persons. Sections 6, 17 and 17A
cover both public meetings and public processions. Each provision of the Ordinance must of
course be read in the context of the Ordinance as a whole. As we said in the restoration to the medical
register case of Medical Council v. Chow (2000) 3 HKCFAR 144 at p.154
B-C, “it is necessary to read all of the relevant provisions together and in
the context of the whole statute as a purposive unity in its appropriate legal
and social setting.”
108.
Section 11 lays down certain
requirements in regard to public meetings.
These requirements concern: the presence of the organiser or his
representative; the maintenance of good order and public safety; and the
control of amplification devices.
Section 15 lays down similar requirements in regard to public
processions.
109.
As for sections 7 and 8, their
effect is that the Commissioner of Police is entitled to notification of most
outdoor public meetings and that notifiable public meetings may take place only
if he has been notified of them.
Sections 13 and 13A have a similar effect in regard to most public
processions.
110.
Turning to the Commissioner of
Police’s powers under the challenged schemes, the position can be summarised as
follows. His general powers under s.6
are, in such manner as he thinks fit, to control and direct the conduct of all
public gatherings and specify the route by which, and the time at which, any
public procession may pass. These
general powers of his are followed by an elaborate set of specific powers
conferred on him. Section 11 empowers
him to impose conditions in respect of a public meeting. If he reasonably regards that as
insufficient, s.9 empowers him to prohibit the meeting. Section 15 empowers him to impose conditions
in respect of a public procession. If he
reasonably regards that as insufficient, s.14 empowers him to object to the
procession.
111.
Total prior restraint is
involved in the Commissioner of Police’s powers under the challenged schemes to
· prohibit
a public meeting (under s.9) and
· object to a public procession (under s.14).
Partial prior restraint is involved in his powers under the
challenged schemes to
· control and direct the conduct of a
public gathering (under s.6),
· specify the route by which, and the
time at which, a public procession may pass (under s.6),
· impose conditions in respect of a public
meeting (under s.11) and
· impose conditions in
respect of a public procession (under s.15).
Prior restraint is still prior restraint even if it
is only partial.
Powers
over meetings and processions under s.17
112.
Section 17 empowers the police
to: vary the place or route of public gatherings; prevent the holding of public
gatherings; stop or disperse public gatherings; give or issue orders that they
consider necessary or expedient for the exercise of such powers; and use
reasonable force to exercise them. These
powers are exercisable on the grounds of: non-notification; contravention of
s.11 or s.15 requirements; contravention of conditions; or reasonable belief
that a breach of the peace is likely.
Also, reasonable belief that entry into a public place in contravention
of s.7 or s.13 is likely empowers the police to bar access thereto, close it
and use reasonable force to prevent entry or remaining.
Delegation
113.
The references to what the
Commissioner of Police is empowered to do have to be read together with his
powers of delegation under s.52.
Inspectors and above can be delegated the powers under sections 6(1),
6(3), 9, 11, 14 and 15. Chief
Superintendents and above can be delegated the powers under s.6(2). Superintendents and above can be delegated
the other powers under the Ordinance.
Appeal
Board
114.
By sections 43, 44 and 44A, the
Ordinance creates, constitutes and lays down the procedure for an Appeal
Board. And s.16 provides for an appeal
to the Appeal Board against decisions of the Commissioner of Police to prohibit
a public meeting, to object to a public procession or to impose conditions on
the holding of a public meeting or procession.
Criminal offences created
115.
Section 17A arms each
challenged scheme with a formidable set of teeth capable of biting down with a
maximum force of five years’ imprisonment.
This
procession, these charges and the court proceedings
116.
The charges in the present case
were laid under s.17A(3)(b)(i) (for which the maximum penalty is five years’
imprisonment upon conviction on indictment or three years’ imprisonment upon
summary conviction). They were brought
in respect of a public procession which took place on the morning of Sunday 10
February 2002. The procession consisted
initially of about 40 persons and ultimately of about 96 persons. Starting at Chater Garden, it proceeded along
Queensway and up to Police Headquarters in Arsenal Street. There the participants demonstrated for about
an hour. The demonstration took the form
of a protest against the conviction ¾ for
obstructing and assaulting a police officer in the due execution of his duty ¾ of a person described in the judgment of the Chief Judge of the
High Court as an “activist”. No s.13A
notification of the procession had been given to Commissioner of Police. The 1st appellant was charged with holding,
while the 2nd and 3rd appellants were charged with assisting in the holding of,
an unauthorized assembly. To these
charges they pleaded not guilty.
117.
Holding the meetings scheme
constitutional, the Chief Magistrate (Patrick Li, Esq.) convicted the
appellants, and bound them over in their own recognisance of $500 for three
months. Their appeal to the High Court
was referred by Pang J to the Court of Appeal.
By a majority, the Court of Appeal (Ma CJHC and Yeung JA, Stock JA
dissenting) upheld the constitutionality of that scheme and affirmed the
appellants’ convictions. By leave of the
Appeal Committee, the appellants now appeal to us asking that their convictions
be quashed on the ground that they were based on unconstitutional
provisions. Mr Martin Lee SC and Mr
Erik Shum appear for the 2nd and 3rd appellants. The 1st appellant, who appears in person,
has, in addition to addressing us, handed us a note on the law prepared for him
by Prof. Eric Cheung.
Free
assembly: its nature and purpose
118.
When deciding whether a scheme
permitting restrictions on free assembly is or is not constitutional, one must
bear in mind that this freedom is closely allied to freedom of expression and
freedom of the media. If it falls, that
could bring them down too. I adopt here
what I recently said in the obstruction case of Yeung May Wan v. HKSAR [2005]
2 HKLRD 212, adding this.
119.
Free assembly, as Lord Denning
has noted judicially and extra-judicially, is a hard-earned freedom not to be
taken for granted. In his book Landmarks
in the Law (1984) at p.133 he wrote: “This freedom has only been won after
much pain and anguish. It is bound up
with the right to demonstrate … History shows how much Governments have disliked
these demonstrations.” He spoke to
similar effect in the English Court of Appeal case of Hubbard v. Pitt
[1976] QB 142. Dissenting in favour of
the picketing tenants, he said (at p.178 E-G) that “the right to demonstrate
and the right to protest on matters of public concern … are rights which it is
in the public interest that individuals should possess” and that “history is
full of warnings against suppression of these rights”.
120.
As it happens, there is nothing
new about Hong Kong residents gathering in public to discuss grievances and
seek redress. We know that such a public
gathering was held on 4 January 1849. It
is referred to in James William Norton-Kyshe: The History of the Laws and
Courts of Hong Kong (1898), vol. I at pp 217, 222, 224 and 257. That gathering seems to have been a somewhat
elitist affair. But these things have
become far more broadly based since then.
In today’s Hong Kong street demonstrations, both stationary and moving,
form a significant and even potent element of public discourse. As long as they are peaceful, there is ample
scope for such demonstrations under our constitutional arrangements. A peaceful demonstration is a sign of freedom
and can have a legitimate effect on policy.
121.
That is not to say that the law
cannot regulate free assembly in the public interest. The law can do so. And in doing so it can cater for the
vulnerability of which Lord Radcliffe spoke in “The Law and its Compass”
(1960) at p.75. He said that “modern
societies are so vulnerable to disturbance, because they are so far from the
security of bare earth and grass roots”.
But a sobering thought is raised in Richard Rudgley: Lost
Civilisations of the Stone Age (1998) at p.7. There it is suggested that “the average Stone
Age individual may have enjoyed greater freedom than … the average citizen of a
modern democratic state”. Whenever the
advantages of living in an organised society have to be paid for by a
diminution of individual freedom or autonomy, it is the business of the
judiciary to see that the price is not too high. Nor should it ever be thought that only
individuals are protected when freedoms are preserved. The state itself, too, is protected. This was clearly explained by Hughes CJ when
delivering the opinion of the United States Supreme Court in De Jonge v.
Oregon 299 US 353 (1937). At p.365
he said:
“The
greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the
need to preserve inviolate the constitutional rights of free speech, free press
and free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful means.”
Trigger for
the challenged powers
122.
The powers of prior restraint
under the challenged schemes are exercisable when it is reasonably considered “necessary
in the interests of national security or public safety, public order (ordre
public) or the protection of the rights and freedoms of others” to exercise
them.
123.
Those words quoted from
sections 6, 9, 11, 14 and 15 form the trigger for those powers of prior
restraint. They are, with three
omissions, lifted from the formula used in art. 17 of the Bill of Rights to
specify the restrictions which it permits.
Article 17 permits restrictions 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 promotion of
public health or morals or the protection of the rights and freedoms of others”.
124.
One of those omissions, namely
the omission of the words “the promotion of public health or morals” is not a
matter for complaint. It reduces the
power to restrict freedom. But the other
two omissions, namely of the words “in conformity with the law” and of the
words “in a democratic society”, have the opposite effect. If they were countenanced, these two
omissions would weaken the brakes on the power to restrict freedom.
Conformity
with law
125.
Expressions like “in conformity
with law” are used to underline the need for legal certainty as opposed to
arbitrariness. What is one to think when
such an expression is used in a constitutional guarantee of freedom but is
omitted in a statutory provision that permits restrictions on the freedom
concerned? It would be wise to examine
such a statutory provision with particular care to see if it is sufficiently
certain. I will deal with legal
certainty in due course.
Necessity
in a democratic society
126.
First, I will say something in
particular about the concept of necessity in a democratic society. One element of this concept is the inability
of an official to do his public duty without imposing a restriction on freedom. This is illustrated by the Irish case of O’Kelly
v. Harvey (1883) 14 LR Ir 105.
Orangemen had threatened to attack a public meeting called by supporters
of the Land League. To avoid that
attack, a magistrate dispersed the meeting.
Was he justified in doing so? The
Irish Court of Appeal said (at p.112) that he would be justified in dispersing
the meeting if he had reasonable grounds for his belief that there were “no
other possible means” by which he could perform his duty of preserving the public
peace. That is necessity.
127.
Next, it has to be a
freedom-friendly standard of necessity.
Introducing the standard of a democratic society safeguards
liberty. It means that even where a
fundamental right or freedom is derogable, its exercise cannot be subjected to
any limitation unless the limitation is necessary in a democratic society. A famous expression of this idea is found in
art. 29 of the Universal Declaration of Human Rights 1948, its general
limitation provision. The learned
authors of Lockwood, Finn and Jubinsky, “Working Paper for the Committee of
Experts on Limitation Provisions”, Vol. 7, No. 1, Feb. 1985 Human
Rights Quarterly 35 deal with the term “necessary in a democratic society”. Citing the travaux preparatoires for
the International Covenant on Civil and Political Rights, they say (at p.51)
that “[t]he term was considered to be a guarantee against the risks of
arbitrary treatment”. We can look at the
travaux for the Covenant. The
House of Lords did so R (Mullen) v. Home Secretary [2005] 1 AC 1 when
considering an English statutory expression drawn from that Covenant.
128.
In Rassemblement Jurassien
and Unité Jurassienne v. Switzerland (1980) 17 DR 93 at p.119 the European
Commission of Human Rights stated its view of free assembly. It is, they said, “a fundamental right [in] a
democratic society and, like the right to freedom of expression, is one of the
foundations of such a society”. This
dovetails with what Lord Nicholls of Birkenhead spoke of in Wilson v. First
County Trust Ltd (No. 2) [2004] 1 AC 816 at p.835E as “the proper role of
courts in a democratic society.”
129.
Demonstrations are
constitutionally protected whether they are held in majority causes or minority
ones. If there is any difference between
those two situations, it is that demonstrations are especially important to
minority groups. This is because, as
pointed out in Helen Fenwick, “The Right to Protest” (1999) 62 MLR 491 at
p.493:
“These
methods may provide the only avenue available to such groups if they wish to participate
in the democracy and it is of crucial importance that they should be able to
take it since by its very nature the democratic process tends to exclude
minorities with whom the majority may be out of sympathy.”
I note with interest that in Huntingdon Life Sciences Ltd
v. Curtin [1997] TLR 646 at p.647 Eady J referred to the rights of protest
and public demonstration as part of a “democratic tradition”. The expression “democracy’s inherent
requirements” is employed by Prof. Jeffrey Jowell QC in Judicial Review
and the Constitution (ed. CF Forsyth) (2000) at p.335 when discussing the
adjudication of constitutional claims.
There may be some tension between human rights and what is merely
majoritarian, but there is no tension between human rights and what is truly
democratic.
130.
That is so not only under a
written constitution but also at common law.
In his article “Law and Democracy” [1995] PL 72 at p.84 Sir John Laws
explains:
“The
democratic credentials of an elected government cannot justify its enjoyment of
a right to abolish fundamental freedoms.
If its power in the state is in the last resort absolute, such
fundamental rights as free expression are only privileges; no less so if the
absolute power rests in an elected body.
The byword of every tyrant is ‘My word is law’; a democratic assembly
having sovereign power beyond the reach of curtailment or review may make just
such an assertion, and its elective base cannot immunise it from playing the
tyrant’s role.”
And in their article “Public Law” (1995) 48 Current Legal
Problems 187 at p.188 J Jowell, R Austin, H Reece and S Hall cite the English
Court of Appeal’s decision in R v. Home Secretary, ex p Leech (No. 2)
[1994] QB 198 to show that the common law “is prepared explicily to recognise
fundamental rights, deriving from [an] unwritten constitution”. I mention these matters to show that Hong
Kong’s tradition of fundamental rights and freedoms took root long before the
Bill of Rights was enacted and entrenched in 1991.
131.
The 8th (2000) edition of HWR Wade
and CF Forsyth: Administrative Law was written before the Human Rights
Act 1998 came fully into force on 2 October 2000. In anticipation of that event, the learned
authors raised the question (at p.184) of how the courts would “establish
objective standards of democratic necessity.”
Now in the latest i.e. the 9th (2004) edition they discuss democratic
necessity in connection with proportionality.
These are areas of the law in which the courts’ task can be as difficult
as their responsibility is heavy. So be
it. What matters is that people can be
confident of enjoying their fundamental rights and freedoms in full
measure. It would help if they received
an assurance that those rights and freedoms cannot be restricted except in
conformity with an objective standard of democratic necessity established and
enforced through an independent judicial process.
Prior
notification
132.
Schemes involving prior
notification of public gatherings are not the only means by which things like
national security, public safety, public order (ordre public) and the
rights and freedoms of others can be protected in public places. Let us not forget the other such means. For example, where public gatherings are not
peaceable, there is room for arrest and prosecution for unlawful assembly or
riot under sections 18 and 19 respectively.
And to take the most extreme example, the advent of an emergency might
even lead to the imposition of a curfew by the Chief Executive in the exercise
of his powers under s.31.
133.
As for crowd safety, the police
regularly devise and implement crowd control measures in the interests of
safety. In so doing they are able to act
pursuant to s.10 of the Police Force Ordinance, Cap. 232, which provides that,
their “duties shall be to take lawful measures for”, among other things, “preserving
the public peace” and “preventing injury to life and property”. Such crowd control measures are often devised
by estimating, rather than by receiving notification of, crowd size. That is what happens at festivals for
example. One sees this from, for
example, paras 4.7 and 4.8 of the Final Report on the Lan Kwai
Fong Disaster dated 23 February 1993 which is included in the Brandeis
Brief materials put in by the respondent.
134.
That having been said, it
should be made clear that notification requirements are not inherently inimical
to the freedoms of assembly, procession and demonstration. In this connection I would mention the
decision of the Supreme Court of Zambia in Mulundika v. The People
[1996] 2 LRC 175. That case concerned a
legislative provision under which a public assembly, meeting or procession
required a police permit. Such a permit
would be issued only if the police were satisfied that the assembly, meeting or
procession is unlikely to cause or lead to a breach of peace. Not surprisingly, that provision was held to
be inconsistent with freedom of assembly and struck down accordingly. At the same time Ngulube CJ saw (at p.190 a-f)
nothing wrong with a requirement that the police be given prior notice of such
an assembly, meeting or procession in order that they may issue directions and
conditions for the purposes of preserving public peace and order.
135.
In Hong Kong, as in many other
places around the world, pavements are often crowded and vehicular traffic is
often heavy. The vehicles liable to be
affected by traffic congestion include ambulances and fire engines. As enjoyed peaceably and without causing
intolerable interference with free passage along the highway or jeopardising
crowd safety, the freedoms of assembly, procession and demonstration can be
facilitated rather than hindered by reasonable arrangements made by the
police. And the ability of the police to
make such arrangements is of course greatly enhanced by receiving reasonable
notification. Reasonableness is a
two-way street. So the requirements have
to be reasonable both from the point of view of those who have to give
notification and from the point of view of those who are to receive it. Speaking of reasonableness, it may well be
that many organisers of public gatherings would choose to notify the police of
their plans even if there were no law requiring such notification.
136.
Of course where prior
notification is part of a scheme which permits prior restraint, then it is
necessary to remember the point which Prof. AL Goodhart made in an
article prompted by the decision of the Divisional Court of the King’s Bench
Division in Thomas v. Sawkins [1935] 2 KB 249. In this article, “Thomas v. Sawkins: a
Constitutional Innovation” (1938) 6 CLJ 22, Prof. Goodhart said (at p.30) that “it
is on [the] distinction between prevention and punishment that freedom of
speech, freedom of public meeting, and freedom of the press are founded”. Let us recall what was said in the Court of
King’s Bench in The Dean of St Asaph’s Case (1784) 3 Term Rep 428
(note); 100 ER 657 at p.661. Lord
Mansfield CJ regretted what he saw as excesses on the part of the press. But he did not regret ¾ rather did he proclaim for the ages ¾ the liberty of the press to print “without any previous licence”.
137.
In Hashman v. United Kingdom
(2000) 30 EHRR 241 at p.256, para. 32 the European Court of Human Rights said
that “prior restraint on freedom of expression must call for the most careful
scrutiny”. The same is true where any
prior restraint on the freedoms of assembly, procession and demonstration is concerned. This makes certainty all the more important.
Certainty,
necessity and proportionality
138.
Some fundamental rights and
freedoms are secure by virtue of being non-derogable. Others are derogable. To be secure they have to be kept free from
any restriction that is repugnant to them or renders their due enjoyment
uncertain. While extremely important, the
freedoms of assembly, procession and demonstration are not non-derogable. So they can be restricted. But freedoms would be insecure indeed if they
can be restricted to serve an elusive purpose.
The concept of ordre public is, as the Chief Justice observed in
the flag desecration case of HKSAR v. Ng Kung Siu (1999) 2 HKCFAR 442 at
p.459I, “an imprecise and elusive one”.
What about the concepts of national security, public safety, public
order and the protection of the rights and freedoms of others? They are not elusive but are very wide.
139.
Disputing the appellants’
contention that the challenged schemes badly fail the test for constitutional
certainty, Mr Gerard McCoy SC leading Mr Gavin Shiu and Mr David
Leung for the respondent submits that a law permitting restrictions on
fundamental rights and freedoms is sufficiently certain unless it is hopelessly
vague. Dealing with this submission of
the respondent’s calls for a careful examination of the cases decided in a
number of jurisdictions. I begin by
looking at the restriction which the United States Supreme Court held constitutional
in Cox v. New Hampshire 312 US 569 (1940). Under the state statutory scheme there in
question, the holding of a procession required a licence from the municipal
authorities. As can be seen at pp 575-576,
the scheme was upheld by giving it an interpretation which limited the
licensing conditions to “time, place and manner so as to conserve the public
convenience [by] giving the public authorities notice in advance so as to
afford opportunity for proper policing”.
140.
That statutory scheme is to be
contrasted with the one which the General Division of the Supreme Court of
Ciskei was concerned with in African National Congress (Border Branch) v.
Chairman, Council of State of Ciskei 1992 (4) SA 434. Under the Ciskei scheme, most public
gatherings of more than 20 persons required authorisation from a
magistrate. And such authorisation could
be refused if the magistrate “is satisfied that such refusal is necessary in
the interests of national security or public safety or for the safeguarding of
public health, the preservation of public morals, the prevention of crime or
disorder or the protection of the rights of others”. Noting (among other objections) the wide
powers of prohibition under the scheme, the court held that the scheme was
inconsistent with freedom of assembly as conferred by Ciskei’s
constitution.
141.
Geoffrey Lane LJ (later Lord
Lane CJ) had spoken to much the same effect in the English Court of Appeal case
of R v. Chief Immigration Officer, ex parte Salamat Bibi [1976] 1 WLR
979. He did so when dealing with the
argument that immigration officers had a discretion in the matter and that they
had to have regard to art. 8 of the European Convention of Human Rights when
exercising that discretion. Article 8
reads:
“(1) Everyone has the right to respect for his private and family
life, his home and his correspondence.
(2) There
shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others.”
At p.988 D-F Geoffrey Lane LJ said that even if (which he did
not accept) immigration officers had a discretion, “[o]ne only has to read …
article 8(2), to realise that it would be an impossibility for any immigration
officer to apply a discretion based on terms as wide and as vague as those in
that sub-article”.
142.
I am aware that in Nova
Scotia Pharmaceutical Society v. R (1992) 74 CCC (3d) 289 at p.313b
Gonthier J of the Supreme Court of Canada issued a warning against insisting
upon a degree of precision to which the subject-matter “does not lend itself”. While respectfully agreeing with that, I do
not think it amiss to add a counter-balancing caveat against failing to insist
upon the degree of precision which the subject-matter requires.
143.
In Sabapathee v. The State
[1999] 1 WLR 1836 at p.1843E Lord Hope of Craighead who delivered the Privy
Council’s advice spoke of the law “as explained by its operation in practice
through case law”. Writing in The
Oxford Companion to the High Court of Australia (eds Blackshield, Coper and
Williams) (2001) Sir Gerard Brennan observed (at p.118, col. 1) that the
common law “must conform with the Constitution, but is itself the legal matrix
of the Constitution and informs its construction.” The judicial process not only operates within
the boundaries of the constitution but also plays a role in identifying
them. After a statute has been passed,
there is often much scope for its clarification by the courts. But where any statutory restriction on
entrenched rights and freedoms is concerned, the restriction should be enacted
along sufficiently circumscribed lines in the first place. As to this, I would cite a decision of
Germany’s federal constitutional court the Bundesverfassungsgericht. This is the Mutlangen Military Depot Case
73 BVerfGE, 206 (1986). (I proceed on a
translation into English provided by University College London’s Institute of
Global Law). At B II 1 the court said
that “[w]hat is first and foremost relevant for the certainty of a penal
provision is that the individual at whom the law is addressed be able to recognize
and understand the wording of the statutory elements of the offence.” (Emphasis supplied).
144.
Judicial recognition of the
constitutionality of a restriction on entrenched rights and freedoms should be witheld
unless the restriction was enacted along sufficiently circumscribed lines in
the first place. A body of case law
informs the answer to the question of what “sufficiently” means in this
context.
145.
Delivering the opinion of the
United States Supreme Court in Shuttlesworth v. City of Birmingham 394
US 147 (1968) Stewart J said (at pp 150-151) that “a law subjecting the
exercise of First Amendment freedoms to the prior restraint of a license,
without narrow, objective and definite standards to guide the licensing
authority, is unconstitutional”. The
constitutional provision concerned there, namely the First Amendment to the
United States Constitution, reads: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances.” (Emphasis supplied).
146.
Shuttlesworth’s case concerned a city code which proscribed participation in any
parade or procession on city streets or public ways without first obtaining a
permit from the City Commission. The
code empowered the commission to refuse a permit if its members believed that “the
public welfare, peace, safety, health, decency, good order, morals or
convenience” required its refusal. In
1963 Reverand Shuttlesworth led an orderly civil rights march without a
permit. Prosecuted under the code for
parading without a permit, he was convicted.
His conviction was quashed by the Alabama Court of Appeals. But in 1967 it was reinstated by the Alabama
Supreme Court which interpreted the code to authorise no more than the
objective and even-handed regulation of traffic on the city’s streets and
public ways. Observing that only a
clairvoyant would have known in 1963 how the code would eventually be read down
in 1967, the United States Supreme Court allowed Reverand Shuttlesworth’s
appeal and quashed his conviction.
147.
In the Brokdorf Atomic Power
Station Case 69 BVerfGE, 315 (1985) the Bundesverfassungsgericht discussed
the extent to which public gatherings can be regulated in conformity with a
constitutional freedom of assembly. This
discussion is to be found at II 2(b). (I
again proceed on a translation into English provided by University College
London’s Institute of Global Law). It
was pointed out that even though the concepts of public order and public safety
had been explained, those explanations were not enough on their own to
guarantee that regulating public gatherings by reference to those concepts
would conform with the constitution.
This is how the court put it:
“These
explanations of the concepts on their own still admittedly do not guarantee an
application of statute law which is in conformity with the Constitution. For the
constitutional law assessment, two limitations are significant which are found
in the statute itself and which have as a consequence that bans and dispersals
can in essence only be considered for the protection of elemental legal
interests. A mere endangering of the public order will not in general suffice.”
148.
As to the first limitation, the
court said:
“Bans
and dispersals presuppose firstly as their ultima ratio that the less severe
method of imposing conditions has been exhausted. That is based on the
principle of proportionality. But this limits the discretion not only in the
choice of methods, but also in actual decision by the competent authorities.
The freedom of assembly protected by the basic right must only take second
place when a balancing of interests which takes into consideration the
importance of the freedoms shows that this is necessary for the protection of
other legal interests of equal value. Accordingly, a limitation of this freedom
will definitely not be justified by just any interest; inconveniences which
inevitably arise from the large scale on which the basic right is exercised,
and cannot be avoided without disadvantages for the purpose of the event, will
generally have to be born by third parties. It will be just as inappropriate to
consider banning of meetings on the basis of mere technical traffic grounds,
since juxtaposition of the use of the highway by demonstrators and moving
traffic is as a rule attainable by conditions.”
149.
And as to the second
limitation, the court said:
“Secondly,
the power for authorities to intervene is limited by the fact that bans and
dispersals are only permitted when there
is a ‘direct endangering’ of public safety or order. The prerequisites for
intervention are more severely restricted by the necessity for directness than
in general police law. In each actual case a prognosis of the dangers is necessary.
It is true that this will always contain a judgement about probability; but its
basis can and must be shown. Accordingly the statute provides that it must be
based on ‘recognisable circumstances’, and therefore on facts, situations, and other
particulars; mere suspicion or assumptions cannot suffice. Taking into
consideration the fundamental importance of freedom of assembly the authority
may not, in particular when issuing a preventative ban set too low a standard
for the prognosis of the dangers, especially as the possibility of a later
dispersal still remains open to it when the situation has been incorrectly
assessed. What standards are required in the individual case must be determined
first of all by the specialist courts. They can hardly be prescribed
independently of the actual circumstances because of the Constitution. They can
however depend in relation for instance to large demonstrations on how far a
preparedness by the organisers to make co-operative preparations exists and
whether disturbances are feared only from third parties or from a small
minority. § 15 of the Meetings Act as a whole is in any case reconcilable with
Art 8 GG when it is interpreted and applied so that the guarantee remains that
bans and dispersals will only take place for the protection of important
community interests; and the principle of proportionality must be adhered to
and there must be an endangering of these legal interests which is direct and
capable of being deduced from recognisable circumstances.”
By “Art 8 GG” is
meant art. 8 of Germany’s basic law the Grundgesetz. This is the article which confers freedom of
assembly in that country.
150.
In Sunday Times v. United
Kingdom (1979) 2 EHRR 245 at p.271, para. 49 the European Court of Human
Rights acknowledged that “many laws are inevitably couched in terms which, to a
greater or lesser extent, are vague and whose interpretation and application
are questions of practice”. I do not
read that as support for vagueness in regard to how fundamental rights and
freedoms can be restricted. The
Strasbourg jurisprudence on the need for certainty in that regard is to be
found in the case of Malone v. United Kingdom (1984) 7 EHRR 14.
151.
Malone’s case concerned a system for the interception of postal and
telephone communications on behalf of the police. Article 8 of the European Convention on
Human Rights provides that there shall be no interference with a person’s right
to respect for his private life and correspondence save on certain specified
conditions. One of these conditions is
that the interference is necessary in a democratic society. The European Court of Human Rights said (at
p.45, para. 81) that the interference could not satisfy the condition of
democratic necessity unless it contained “adequate guarantees against abuse.”
152.
On the question of certainty in
these matters, what was said in Dawood, Shalabi and Thomas v. Minister of
Home Affairs 2000 (3) SA 936 is worthy of notice. In a judgment with which the other members of
the Constitutional Court of South Africa agreed, O’Regan J said this (at
p.969 D-E):
“It
is for the Legislature to ensure that, when necessary, guidance is provided as
to when limitation of rights will be justifiable. It is therefore not ordinarily sufficient for
the Legislature merely to say that discretionary powers that may be exercised
in a manner that could limit rights should be read in a manner consistent with
the Constitution in the light of the constitutional obligations placed on such
officials to respect the Constitution.”
It is succinctly put thus in ECS Wade, “Police
Powers and Public Meetings” (1938) 6 CLJ 175 at p.179: “[t]he vagueness of a
power increases the discretion of those to whom it is entrusted”.
153.
The principle of legal
certainty has undergone considerable development recently. And I daresay there is still room for its
further development. But insistence on
certainty is in truth an integral part of a long constitutional tradition. Prof. AV Dicey made it the first of the three
meanings which he famously attributed to the rule of law. One sees this in his lectures first published
in 1885 and now to be found in AV Dicey: The Law of the Constitution,
10th ed. (1961) (ed. ECS Wade). He said
(at p.202 of that edition) that the rule of law “means, in the first place, the
absolute supremacy or predominance of regular law as opposed to the influence
of arbitrary power, and excludes the existence of arbitrariness, of
prerogative, or even of wide discretionary authority on the part of the
government.” And long before that, Sir
Edward Coke (in 4 Inst. 41) made the point in language as memorable as
it is picturesque. He recommended it as “[a]
good caveat to parliaments to leave all causes to be measured by the golden and
straight metwand of the law, and not to the uncertain and crooked cord of
discretion”. This is not to be dismissed
as an early common lawyer’s mistrust of equity.
There is much more to it than anything of that kind. After all, Coke also pointed out (in Co.
Litt. 24b) that “[b]onus judex secundum aequum et bonum judicat, et
aequitatem stricto juri praefert” (a good judge decides according to
justice and right, and prefers equity to strict law).
154.
Legal certainty is not hostile
to purposive rather than literal statutory interpretation. It does not deprive the common law of its
capacity for development. Nor is it
hostile to the amelioration of the common law by equity. John Selden’s 17th century jest or jibe about
the Chancellor’s foot (which the modern reader finds in The Table Talk of
John Selden (1927, ed. Sir Frederick Pollock) at p.43) was answered by Lord
Eldon LC in Gee v. Pritchard (1818) 2 Swans. 402; 36 ER 670. There the Lord Chancellor spoke (at p.414; p.674)
of “laying down fixed principles, but taking care that they are to be applied
according to the circumstances of each case.”
Legal certainty does not take away the flexibility needed to do justice
under private and public law in the myriad circumstances of life. But it has its proper place. And in that place it is indispensable to the
rule of law. Nowadays there are many
things that the law properly leaves to discretion, but the maintenance of
constitutional rights and freedoms is not among them.
155.
It having been said that legal
certainty is part of a long constitutional tradition, the same should be said
of free assembly itself. It is a part of
the common law, being that part of it which Lord Radcliffe discusses in The
Problem of Power (1958) at pp 105-107.
At the end of that discussion he refers to “the tradition that there are
a citizen’s rights standing between him and despotic power”, saying
“…
certainly they exist, and exist by a very ancient tenure which brave men have
had to vindicate in the past. Those
rights are said to have this peculiarity, that they have been, in the main, won
in the courts of law; they have been upheld by Judges as rights which exist by
immemorial custom of the country under the common law and they have not been
created by any deliberate act of constitution making.”
156.
The learned author of Francis
Bennion: Statutory Interpretation, 4th ed. (2002) draws attention (at
p.721) to Dicey’s statement that the right of assembly is nothing more than a
view taken by the courts of individual liberty.
And he observes that Dicey might have added that it is also nothing
less. Constitutions can create new
rights and sometimes do so. But many old
rights are, as Lord Cooke of Thorndon said in the House of Lords case of R
(Daly) v. Home Secretary [2001] 2 AC 532 at p.548 F-G, “inherent and
fundamental to democratic civilised society” so that constitutions “respond by recognising
rather than creating them”. Essentially
fundamental rights are after all “the basic rights of individuals”. That is how Lord Hoffmann described them in R
v. Home Secretary, ex parte Simms [2000] 2 AC 115 at p.131 F. In that case the House of Lords was concerned
with free speech as exercised by prisoners through the media.
157.
The Basic Law’s reach, as I
said in the land resumption case of Director of Lands v. Yin Shuen
Enterprises Ltd (2003) 6 HKCFAR 1 at p.8D, “extends beyond preserving old
rights and includes conferring new ones”.
Article 27 of the Basic Law does the former while shading into the
latter by referring in terms to processions and demonstrations. Those references underline the contemporary
function and importance of the ancient right of free assembly. Of course the Basic Law’s greatest
contribution to human rights is to their enforcement rather than to their
content. While much can be done by way
of construction, the common law ultimately acquiesces in the majoritarian
belief described by Prof. Dawn Oliver in the opening sentence of “Democracy,
Parliament and constitutional watchdogs” [2000] Public Law 553. This is “the belief that a government with a
majority ought to be able to push any measure through Parliament”. Entrenched constitutions like the Basic Law
do not subscribe to that belief. Basic
Law rights and freedoms are beyond our legislature’s power to undo.
158.
Various expressions have been
used in other cases to describe the extreme uncertainty of the provisions
concerned in those cases. Among these
are the expression “incomprehensible” used in the Supreme Court of Canada by L’Heureux-Dubé
J in Committee for Commonwealth of Canada v. Canada at p.438a and
the expression “uncontrolled” used in the Supreme Court of Zimbabwe by Gubbay
CJ in Re Munhumeso [1994] 1 LRC 282 at p.294a. Of course the fact that a provision is
condemned as extremely uncertain cannot be taken to mean that any lesser degree
of uncertainty would necessarily be acceptable in a provision of that or any
other kind. Adjectives can be
convenient. But a proper appreciation of
why certainty is necessary provides a better indication of the degree of
certainty required than any adjective can provide.
159.
As to why certainty is
necessary, the decision of the United States Supreme Court in Grayned v.
City of Rockford 408 US 104 (1971) is instructive. In a passage drawing on a number of their
Honours’ past decisions, Marshall J who delivered the opinion of the court said
this (at pp 108-109):
“ It is a basic
principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined. Vague laws offend several important
values. First, because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary intelligence
a reasonable opportunity to know what is prohibited, so that he may act accordingly.
Vague laws may trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for resolution
on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application. Third, but related, where a vague
statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it
‘operates to inhibit the exercise of [those] freedoms.’ ‘Uncertain meanings
inevitably lead citizens to ‘ ‘steer far wider of the unlawful zone’… than if
the boundaries of the forbidden areas were clearly marked.’ ”
160.
That is the point which I had
in mind in the noise control case of Noise Control Authority v. Step In Ltd
[2005] 1 HKLRD 702. Agreeing with the
judgment of Sir Gerard Brennan NPJ, I added the following observations on legal
certainty (at pp 706G-707A):
“Objection
can be taken on constitutional grounds to any law, regulation or administrative
action that creates a state of uncertainty in which persons are inhibited from
enjoying their fundamental rights and freedoms in full measure. But playing loud music is not a fundamental
right or freedom. And the law does not
accord it precedence over the peace and quiet that people can reasonably expect
to enjoy. This case is about low
frequency noise transmitted through the structure of a building so as to
disturb the sleep of occupants. The
uncontradicted evidence is that such noise cannot be effectively controlled
through a decibel-based noise limit. So
the protection of occupants requires inaudibility at the nearest noise
sensitive receiver. To ensure that he
complies with such a requirement, a noise-maker may have to steer well away
from the line between legality and illegality.
That is unfortunate. But it is
unavoidable. And it is acceptable since
no constitutional right or freedom is adversely affected in any way.” (Emphasis supplied).
161.
The proposition that vague laws
inhibit the exercise of constitutional rights and freedoms goes to the core of
what we have always acknowledged as our duty in respect of Basic Law rights and
freedoms, namely to give them such application as ensures their enjoyment in
full measure. Not everyone is prepared to
risk being prosecuted on criminal or disciplinary charges. Nor does everyone relish having to bring a
constitutional challenge in order to vindicate his or her beliefs. My express reference to disciplinary charges
owes itself to Ezelin v. France (1992) 14 EHRR 362. That case involved a reprimand by the French
Bar Council against a legal practitioner in relation to his participation in a
public assembly. The European Court of
Human Rights said (at pp 388-389) that necessity in a democratic society
involved proportionality. And, the court
continued, the balance had to be struck in such a way as to avoid discouraging
persons from exercising their fundamental rights and freedoms.
162.
Viewed in perspective, the loss
of the Commissioner of Police’s power to ban public meetings and processions
could well prove to be a far smaller loss to him than might appear at first
sight. This is, I think, well
illustrated by the decision of France’s Conseil d’Etat in Benjamin’s Case
CE 19 May 1933, Rec 541. There a
right-wing speaker was due to address a public meeting. The mayor banned the meeting because some
left-wing groups threatened public disorder if the proposed speaker addressed
the meeting. That ban, the Conseil d’Etat
held, was unjustified. As translated
into English in Nicholas Emiliou: The Principle of Proportionality in
European Law (1996) at p.98, the words used by the Conseil d’Etat include
these:
“The
examination shows that the possibility of disturbances did not present such a
degree of seriousness that he could not, without prohibiting the conference,
have maintained order by issuing policing measures that it was [the mayor’s]
duty to take.”
That was said in the context of one
sort of situation, but it involves an idea of general application.
163.
There is nothing to show that
policing measures short of banning a public meeting or procession can never be
effective. Being less drastic than a
ban, such measures are inherently less vulnerable to a constitutional
challenge.
164.
Where the state acts to curtail
a fundamental right or freedom, it bears the burden of justifying such
curtailment. So if it asserts the
existence of circumstances which it relies upon, it must prove the existence of
those circumstances. As Acting President
Steyn of the Court of Appeal of Lesotho put it in Seeiso v. Minister of Home
Affairs 1998 (6) BCLR 765 (LesCA) at p.777 G-H, a “vigilant court” would
not sustain such assertions unless they are supported by evidence which “can be
evaluated” by the court.
165.
That reference to judicial
evaluation reminds me of Lord Atkin’s insistence in Liversidge v. Anderson
[1942] AC 206 at p.232 upon “a condition which, if necessary, can be examined
by the courts”. The other members of the
House of Lords hearing that appeal saw it differently. But the move away from their view which the
Privy Council began in Nakkuda Ali v. Jayaratne [1951] AC 66 can, I
think, be regarded as having been completed by the House of Lords itself in R
v. IRC, ex parte Rossminster [1980] AC 952.
It was not until 1966 that the House of Lords announced its willingness
to depart from its previous decisions.
Otherwise I would be disposed to regard the move as having been
completed in Ridge v. Baldwin [1964] AC 40. There Lord Reid, discussing the safeguard of
an objective test the application of which the courts can examine, said at
p.73: “I leave out of account the very peculiar decision of this House in Liversidge
v. Anderson”.
166.
Even where the existence of the
circumstances relied upon is proved, there still remains the question of
proportionality. R v. To
Kwan-hang [1995] 1 HKCLR 251 was a case decided by the Court of Appeal
under the Bill of Rights. In that case
there was a risk that, unless prevented from doing so by a police cordon, a
large crowd of demonstrators would press right up against a building and that
injury would result. At p.259 I said
that the cordon which the police established was a “proportionate response” to
that risk.
167.
Proportionality was addressed
by the Court of Justice of the European Communities in X v. Commission of
the European Communities [1994] ECR I-4737.
At 4790 the court said that “restrictions may be imposed on fundamental
rights provided that they in fact correspond to objectives of general public
interest and do not constitute, with regard to the objectives pursued, a
disproportionate and intolerable interference which infringes upon the very
substance of the right protected”.
168.
Lord Diplock put the point
more shortly in the House of Lords when he said in R v. Goldstein [1983]
1 WLR 151 at p.155B that “[y]ou must not use a steam hammer to crack a nut, if
a nutcracker would do.” Especially, I
would add, when what you are doing impacts upon fundamental rights and
freedoms. This can be seen in two recent
decisions of the House of Lords. One is R
v. A (No. 2) [2002] 1 AC 45. The
other is R v. Shayler [2003] 1 AC 247.
A’s case was about a legislative measure which impacted upon the
guarantee of a fair trial. Lord Steyn
said (p.65H) that the question was whether the measure “makes an excessive
inroad into the guarantee”. In Shayler’s
case Lord Bingham of Cornhill cited Daly’s case on the difference
between the approach laid down by the English Court of Appeal in Associated
Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 and
the proportionality approach. And at
p.272 E-F Lord Bingham said that “in any application for judicial review
alleging an alleged violation of a Convention right the court will now conduct
a much more rigorous and intrusive review than was once thought to be
permissible”.
169.
Proportionality has perhaps
been dormant but is not really new. Magna
Carta (sealed in 1215 and put on the statute roll in 1297 as 25 Edw. I) had
catered for it by providing that amercement be “after the manner of the fault”. More recent are two valuable statements in
the House of Lords by Lord Nicholls of Birkenhead. In Reynolds v. Times Newspapers Ltd
[2001] 2 AC 127 at p.200F he stated that the means employed to curtail freedom
of expression “must be proportionate to the end sought to be achieved.” And in Polanski v. Condé Nash Publications
Ltd [2005] 1 WLR 637 at p.642B he noted the direction in which the relevant
case law is moving, pointing out that “the courts increasingly recognise the
need for proportionality”.
170.
Certainty, necessity and
proportionality operate in unison. Like
certainty, proportionality prevents arbitrariness. Hentrich v. France [1994] 18 EHRR 440
concerned an exercise of a right of pre-emption by the revenue. Did it breach the guarantee under Article 1
of Protocol No. 1 of the European Convention on Human Rights that “[n]o one
shall be deprived of his possessions except in the public interest and subject
to the conditions provided for by law and by general principles of
international law”? Holding that it did,
the European Court of Human Rights said (at p.470) that “[i]n order to assess
the proportionality of the interference, the Court looks at the degree of
protection from arbitrariness that is afforded.” Then there is the House of Lords case of Attorney
General v. Guardian Newspapers (No. 2) [1990] 1 AC 109. At pp 283H-284A Lord Goff of Chieveley said
that necessity implies proportionality.
171.
As to the ill effects of
uncertainty, it is well to remember what Brennan J said when delivering the
opinion of the United States Supreme Court in National Association for the
Advancement of Colored People v. Button 371 US 415 (1963). He said (at p.433) that “[t]he threat of
sanctions may deter [the exercise of freedoms] as potently as the actual
application of sanctions.” The passage
in which he said that was cited by the Privy Council in de Freitas v.
Ministry of Agriculture [1999] 1 AC 69 at p.79 A-C. Their Lordships were concerned with a restriction
on free speech. And they cited Brennan J’s
statement for the principle on which they acted in condemning that restriction
as too wide in its scope and possible application. I would mention that de Freitas’s case
was among those which informed our decision in the misconduct in public office
case of Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381. By that decision we saved the common law
offence of misconduct in public office from unconstitutionality for
uncertainty. We did that by
demonstrating that the offence’s full definition included elements of
limitation not fully articulated in the past.
172.
Another decision which we
looked at in Shum’s case is that of the Privy Council in Ahnee v.
Director of Public Prosecutions [1999] 2 AC 294. No one would be able to repose suitable
confidence in any constitutional right or freedom in the face of an uncertain
law purporting to permit restriction of that right or freedom. Thus Lord Steyn who delivered the Privy
Council’s advice in Ahnee’s case spoke (at p.306 H) of “the implied
constitutional guarantee of certainty”.
This is the guarantee of all the other guarantees.
173.
Shum’s case is not the only one in which our decision was based on the
principle of legal certainty. Our
decision in the biding-over case of Lau Wai Wo v. HKSAR (2003) 6 HKCFAR
624 was also so based. At p.648 F-H Lord
Scott of Foscote NPJ said:
“Although the
traditional form of bind-over order is an order requiring the person concerned
to keep the peace and be of good behaviour, without any greater precision, we
do not think that an order simply in that general form should any longer be
regarded as satisfactory. Nor do we regard an implied limitation by reference to
the facts that prompted the making of the order to be satisfactory. We think
the principle of legal certainty requires that the order spell out with
precision, in the same way as would be expected of an injunction, what it is
that the person must not do.”
174.
The specified purpose of each
of the challenged schemes is, as we have seen, to serve “the interests of
national security or public safety, public order (ordre public) or the
protection of the rights and freedoms of others”. Subject to the problem that ordre public
is imprecise and elusive, each of those concepts is a good one in itself. But that alone is not a sufficient
safeguard. The mere fact that a concept
is of value does not justify an undefined or ill-defined power to restrict a
freedom in its name. Such a power would
imperil the freedom and breed suspicion for the concept.
175.
So it is not enough that a
statute specifies the purposes to be served.
The statute must also specify the means which it provides for serving
those purposes. Presiding in the High
Court of Australia, Mason CJ said in Nationwide News Pty Ltd v. Wills
(1992) 177 CLR 1 at p.29 that “a reasonable proportionality must exist between
the designated object or purpose and the means selected by the law for
achieving that object or purpose”.
176.
Where a measure impacts upon a
constitutional guarantee, the purposes which that measure is meant to serve has
to be examined with anxious care. So
will the means provided for achieving those purposes. To meet a constitutional challenge, the
executive must “demonstrate, under rigorous scrutiny,” that the means selected
are necessary because nothing of less impact than means of that kind would be adequate. The words within quotation marks are borrowed
from the opinion of the United States Supreme Court in C & A Carbone,
Inc. v. Clarkstown 511 US 383 (1994) delivered by Kennedy J. He used them (at p.392) when explaining what
a municipality has to do in order to justify discrimination against interstate
commerce in favour of local business or investment. That approach of rigorous scrutiny is matched
by the one taken in the House of Lords by Lord Nicholls of Birkenhead in R
(ProLife) v. BBC [2004] 1 AC 185 concerning a restriction on a fundamental
freedom, namely free speech. Such
restrictions, Lord Nicholls said at p.224 C, “need to be examined rigorously by
all concerned, not least the courts … as independent and impartial bodies …
charged with a vital supervisory role.”
177.
As Dixon CJ and Fullagar, Kitto
and Taylor JJ of the High Court of Australia said in Collier Garland Ltd v.
Hotchkiss (1957) 97 CLR 475 at p.486, “law and administrative practice must
not be confused”. No matter how piously
such a power is expressed, the safety of fundamental rights and freedoms cannot
be entrusted to a mere hope or expectation that a power to restrict their
exercise would never be misused. In the
limit of stay case of Prem Singh v. Director of Immigration (2003) 6
HKCFAR 26 the statutory provision under constitutional challenge purported to
make a constitutional right subject to an administrative discretion. We struck down the challenged provision.
178.
Whenever there is a power by
which the exercise of a fundamental right or freedom is liable to be
restricted, a constitution properly protective of human rights requires that
such a power be clearly and carefully limited to avoid the danger of it being
exercised arbitrarily or disproportionately.
The rule of law so demands. It so
demands for the purpose of preserving what Marshall CJ of the United States
Supreme Court famously described in Marbury v. Madison 5 US 137 (1803)
at p.163 as “a government of laws, and not of men”. As explained in Salmond on Jurisprudence,
12th ed. (1966) at p.65, “a government of laws is preferable to one of men not
simply by virtue of being less uncertain but by reason of releasing the citizen
from the mercy of other human beings.”
In Law Making, Law Finding and Law Shaping (ed. Basil S
Markesinis) (1997) at p.161 President Limbach of the Bundesverfassungsgericht
said that the Grundgesetz has “resolved the age-old tension between power and
law in favour of the law”. That offers,
I think, a good way of describing what the rule of law has done and the courts
must preserve. If a freedom is not an
absolute one, then it may be governed.
Even so, it will not be a freedom governed by men or women. It will be, as Lord Wright said (at p.627)
when delivering the advice of the Privy Council in James v. Commonwealth of
Australia [1936] AC 578, a “freedom governed by law”.
179.
The vital importance of the
foregoing comes into particularly sharp focus in regard to free assembly. For this freedom, as I have pointed out
earlier in this judgment, is typically resorted to for the purpose of advancing
points of view opposed to the policies and practices of the executive. Free assembly must be put beyond ¾ and be seen to lie beyond ¾ the executive’s
temptation to suppress. Uncertainty’s
natural tendency would be to stimulate such temptation, its inevitable effect
to facilitate such suppression. The
Ghanaian case of New Patriotic Party v. Inspector General of Police
[1996] 1 CHRLD 5 concerned a statutory scheme under which public meetings and
processions required a permit. Holding
that it did not subject the permit system to adequate guidelines or effective
control and pointing to the danger of it being used to suppress fundamental
rights, the Supreme Court of Ghana struck down the scheme.
180.
All courts are aware of the
difficulties that the police face. As to
this, I refer to the case of Redmond-Bate v. DPP [2000] HRLR 249. In that case the Divisional Court of the
Queen’s Bench Division quashed a conviction for obstructing a police officer in
the execution of his duty. The
obstruction consisted of disobeying his order to stop preaching to a hostile
crowd in front of a cathedral. At p.259
Sedley LJ said:
“Police
officers in a situation like this have difficult on-the-spot judgments to
make. Because they are judgments which
impinge directly on important civil liberties and human rights, the courts must
in their turn scrutinise them with care.”
181.
A free society cannot avoid
making heavy demands on the patience and other positive qualities of its police
officers. Some difficult police
decisions have to be made on-the-spot.
Others can be made at comparative leisure. Some are made by a junior officer, perhaps a
constable. Others are made by a senior
officer, perhaps the Commissioner of Police himself. Legal certainty helps the police. I had that in mind in To Kwan-hang’s case. At p.258 I said that “[w]hile police officers
are required to exercise judgment, it is necessary that the powers within the
ambit of which they are to exercise their judgment be carefully defined.” Having to preserve freedom while maintaining
order, the police would be in a very awkward position otherwise.
182.
The opinion of the United
States Supreme Court in Smith v. Goguen 415 US 566 (1974) is perhaps
most remembered for the expression “standardless sweep” used by Powell J (at
p.575). But for present purposes the
passage which I would cite from that opinion is this one (at p.581):
“There
are areas of human conduct where, by the nature of the problems presented,
legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly
conduct that may inhibit a policeman in the performance of his official duties
may be one such area, requiring as it does an on-the-spot assessment of the
need to keep order.”
Great precision may not always be possible, but some
precision is needed. And it should be
backed by a freedom-friendly standard of reference.
183.
What they aptly call a “problem
of modern democracy” is identified by the learned authors of AW Bradley and KD
Ewing: Constitutional and Administrative Law, 13th ed. (2003). This is, they say at p.456, the problem posed
by “a need to ensure that the police have adequate measures to protect the
public without at the same time conferring powers that undermine the very
freedom which the police are employed to defend”. It is not by vague laws that this objective
can be attained. Its attainment requires
laws that are fully and plainly stated so that they can be clearly
understood. If a more graphic
description of legal certainty is desired, one is to be found in the argument
presented to the Court of Common Pleas in Colthirst v. Bejushin (1550) 1
Plowden 23 at p.25; 75 ER 36 at p.40 by Serjeant Pollard. He said that “certainty is the mother of
repose, and incertainty the mother of contention, which our wise and provident
law has ever guarded against and prevented all occasions thereof.” Legal certainty is an integral part of the
means by which freedom is preserved while order is maintained and harmony is
sought. For this purpose, it is ¾ as this Court said in the born in Hong Kong case of Director of
Immigration v. Chong Fung Yuen (2001) 4 HKCFAR 211 at p.223 I ¾ “important both that the law should be certain and that it should
be ascertainable by the citizen.” The
citizen’s entitlement to “an adequate indication” of the legal position was
insisted upon by European Court of Human Rights in Halford v. United Kingdom
(1997) 24 EHRR 523 at p.544.
184.
In SW v. United Kingdom
(1996) 21 EHRR 363 at p.399, para. 36/34 the European Court of Human
Rights saw no objection to “the gradual clarification of the rules of criminal
liability through judicial interpretation from case to case, provided that the
resultant development is consistent with the essence of the offence and could
reasonably be foreseen”. The demand for
certainty made by that proviso is directly in point since the schemes under
challenge in the present case are backed by penal sanctions. Having said that, it is necessary to guard
against giving the impression that certainty is unimportant in other areas of
the law. In Shaw v. Director of
Public Prosecutions [1962] AC 220 at p.282 Lord Reid concluded his dissent
by strongly objecting to a criminal offence lacking “the certainty which we
rightly prize in other branches of [the] law”.
This is not to deny that the need for certainty, and the degree of
certainty needed, is greater in some situations than in others.
185.
If there is one type of law
more in need than any other of being clearly and carefully circumscribed, it is
the type that places or permits restrictions on the exercise of fundamental
rights and freedoms and criminalises exercising them beyond those
restrictions. The laws containing the
challenged schemes are of this type.
186.
I had that type of law in mind
when I said this in Shum Kwok Sher’s case at p.390 A-D:
“ As Sir Anthony Mason NPJ points out, the degree
of certainty required will depend on the context of the law in question. In agreeing that the offence of misconduct in
public office is sufficiently certain, I am crucially influenced by the fact
that it is not the type of offence which criminalises conduct in such a way as
to limit the exercise of a fundamental freedom eg free speech. Where any offence of that type is concerned,
I think that an exceptionally high degree of certainty of definition would be
required if, quite apart from any other objection, it is not to be open to
objection as unconstitutional for uncertainty.
For in the absence of such a degree of definitional certainty, the whole
question of what is left of the fundamental freedom concerned would be thrown
into doubt. It is not by countenancing
such a state of affairs that the courts discharge their duty of protecting
fundamental freedoms.”
187.
The materials placed before us
include Headquarters Order No. 45 of 1997, Part One issued by the Commissioner
of Police on 1 July 1997 and marked “For Police Use Only”. It deals with the operation of the schemes
now under challenge. Let us assume that
it makes the position clearer to police officers for whose guidance it is
issued and offers insights to prosecutors and judges to whom it is shown. But what about the rest of the
population? The challenged schemes are backed
by criminal sanctions. So it is well to
remember the advisory opinion given by the Permanent Court of International
Justice in the Danzig Legislative Decrees Case PCIJ, Ser. A/B,
No. 65, 1935, p.41. At p.53 the court
noted that under the decrees in question
“… a
man may find himself placed on trial and punished for an act which the law did
not enable him to know was an offence, because its criminality depends entirely
upon the appreciation of the situation by the Public Prosecutor and by the
judge. Accordingly, a system in which
the criminal character of an act and the penalty attached to it will be known
to the judge alone replaces a system in which this knowledge was equally open
to both the judge and the accused.”
“It must”, the court said at p.57, “be possible for the
individual to know, beforehand, whether his acts are lawful or liable to
punishment.”
188.
As good a portrait of legal
certainty as any is, I think, the one painted by Lord Mansfield CJ in the Court
of King’s Bench when speaking about outlawry in the forensic saga of R v.
Wilkes (1763-70) 19 State Trials 1075.
Giving judgment on 8 June 1768, he said (at p.1102, column 1) that “[t]he
rules and method of proceeding are wisely calculated to prevent ignorance and
surprise.”
189.
Mr Lee said that the question
why cannot people do together what a person can do alone is what free assembly
is all about. When that question is
asked in respect of a restriction on free assembly, the answer must, in my
view, be a wholly convincing one before the restriction can be upheld.
190.
The idea that whatever is not
hopelessly vague is therefore sufficiently certain finds its home in the law of
contract, not in the law of the constitution.
Once a court is satisfied that the parties intended to enter into a contract,
it will strive to preserve their bargain.
The books are full of the techniques by which that can be done. But where restrictions on fundamental rights
and freedoms are concerned, the courts will protect the fundamental right or
freedom concerned. The last thing the
courts should do is to strive to uphold the restriction.
191.
For the foregoing reasons I
reject Mr McCoy’s submission ¾ which he
ably argued but is far too bold ¾ that a
law permitting restrictions on fundamental rights and freedoms is sufficiently
certain unless it is hopelessly vague.
Greater certainty than that is needed.
To
be sufficiently circumscribed so as to be constitutional
192.
There is a large body of
jurisprudence on the question of what restrictions can be placed on fundamental
rights and freedoms. So much so that one
must guard against drifting into a tendency to treat fundamental rights and
freedoms as merely what is left after seemingly innocuous restrictions have
been imposed. That would invert the
priorities. The correct approach is to
ascertain the nature of the fundamental right or freedom concerned and the
purposes which it serves in a free society.
And then to focus on keeping that right or freedom beyond any
restriction that runs counter to its nature or stands in the way of it serving ¾ and being seen to serve ¾ its
purposes in full measure. Powers to
restrict fundamental rights or freedoms must therefore be clearly and carefully
circumscribed.
193.
In the course of the argument,
I ventured an observation. The challenged
schemes involve police powers of prior restraint, backed by criminal sanctions,
on a fundamental freedom, namely free assembly, which is cognate to free speech
and free press, which is important to the operation of democracy and which
history shows has often been viewed with hostility by the executive. Is there any other category of power, I asked
Mr McCoy, which it is more important to circumscribe with care? Mr McCoy is far too good a constitutional
lawyer to have answered otherwise than he did, which was to say that the powers
of prior restraint under challenge in the present case are “at the top of the
range” in that regard. Indeed they are.
194.
The case of Mtikila v.
Attorney General [1996] 1 CHRLD 11 decided by the High Court of Tanzania
illustrates the importance which courts around the world have attached to
safeguarding free assembly. Not surprisingly
the Bar Council cited that case in its 23 April 1997 Submission in response to
the Office of the Chief Executive Designate’s April 1997 Consultation Document
on Civil Liberties and Social Order.
That was the consultation document which ushered in what are now the
challenged schemes. The Tanzanian
statute contained a power to control assemblies. It also contained a safeguard, namely a
provision that the power comes into play only when an assembly was “imminently
likely” to cause a breach of the peace or to prejudice public safety or the
maintenance of public order. In a
constitutional challenge to that statutory power of prior restraint, the
Tanzanian court applied the decision of the United States Supreme Court in Saia
v. New York 334 US 558 (1948) and that of the Supreme Court of Pakistan in Shariff
v. President of Pakistan PLD 1993 SC 473.
Applying those decisions, it held that the power in question complied
with the “clear and present danger” test under which, to be reasonably required
in the interests of public order, the substantive evil must be extremely
serious and the degree of imminence extremely high. In contrast s.17 treats reasonable belief
that a breach of the peace is likely as sufficient to justify preventing the
holding of, stopping or dispersing a public gathering. The contrast does not favour s.17.
195.
I should mention the April 1997
consultation document refers to restrictions “which [the International Covenant
on Civil and Political Rights] places on the rights under Articles 21 and 22”. Stock JA rightly noted the inaccuracy
there. Neither the Covenant nor the Bill
of Rights places any restriction on free assembly. Rather do they limit the concepts for the
protection of which free assembly may be restricted. That leaves the crucial question of what
other safeguards must attend any restriction on free assembly for that
restriction to be constitutional.
196.
Statutory schemes for regulating
the freedoms of assembly, procession and demonstration can take many different
forms. So there is a limit to how
prescriptive one can usefully be in regard to the ways in which such schemes
should be circumscribed. Nevertheless
there are a number of points that can and should be made, including these:
(a)
The
purposes which the scheme is meant to serve should be specified. Such purposes must not be ¾ and must be seen not to be ¾ repugnant to free assembly. For example, the suppression of peaceable political
opposition would be a repugnant purpose.
(b)
When
providing that scheme powers are triggered by necessity to act in the service
of the specified purposes, the statute should also provide that it has to be
necessity by a freedom-friendly standard of reference (such as, for example,
that of a democratic society).
(c)
Public
meetings and processions are the lifeblood of free assembly. Powers to ban or control them involve prior
restraint on free assembly which is a freedom of very great importance. So the circumstances in which such powers can
be used should be limited to those in which prior restraint is a proportionate
response. Suppose, for example, the
Commissioner of Police reasonably suspects, for stated reasons which the courts
can ascertain are good, that a meeting or procession would lead to an
unreasonable obstruction or a serious threat to public safety. And suppose he reasonably fears, for stated
reasons which the courts can ascertain are good, that the obstruction or threat
would be more than ordinary policing could cope with adequately. In that scenario prior restraint would be
proportionate. But in many other
circumstances it would not.
(d)
Where
a scheme contains powers to impose conditions in respect of a public meeting or
procession, the scheme should specify the sort of conditions that can be
imposed rather than leaving them at large.
The wider the concepts in the service of which conditions may be
imposed, the more clearly and carefully must the scheme circumscribe the
conditions that may be imposed.
(e)
I
would not rule out the possibility that a scheme can be devised so as
constitutionally to empower the Commissioner of Police to ban a public meeting
or procession. But judicial
decision-making is attended by procedural safeguards absent from administrative
decision-making. A possible arrangement
is one under which the Commissioner of Police may apply to a court for a
banning order. All other things being
equal, the constitutionality of a banning power given to a court would be
inherently easier to defend than the constitutionality of a banning power given
to the Commissioner of Police himself.
Powers of prior
restraint are unconstitutional
197.
Having examined the challenged
schemes and considered the relevant law, I will now give my answer to the
question whether the Commissioner of Police’s powers of prior restraint under
those schemes are sufficiently circumscribed to be constitutional. Such is the similarity between the meetings
scheme and the processions scheme that there is no distinction to be drawn
between them on this question.
198.
None of the purposes which the
Commissioner of Police’s powers under the challenged schemes are meant to serve
can be said to be repugnant to free assembly.
Nor, apart from ordre public, can any of those purposes be
condemned as elusive. But a concept may
be wide even though it is not elusive.
It is natural and appropriate to confer rights and freedoms in wide
terms, but permitting wide restrictions on rights and freedoms endangers
them. As Lord Devlin so neatly put it in
his memoirs Taken at the Flood (1996) at p.64, concepts of this kind
have a “ potentiality as a suppressive of free speech”. Similarly, I would add, of free assembly.
199.
National security, public
safety and public order are very wide concepts.
The protection of the rights and freedoms of others is a particularly
wide concept. For there are so many
rights and freedoms that others have, and the challenged schemes do not say
which of these may be protected by police powers restricting free assembly. This is a serious omission. After all, even some of the rights and
freedoms under the Bill of Rights (eg. the right under art. 7 not to be
imprisoned for breach of contract) are not obvious candidates for such an
exercise.
200.
Despite the width of the
concepts concerned and the inclusion of banning powers, the challenged schemes
omit to specify that the necessity to act in the service of those concepts must
be necessity by a freedom-friendly standard.
Nor is there any indication in the challenged schemes that the powers of
prior restraint which it confers can only be used where ordinary policing
cannot be relied upon to accomplish the necessary objective. Coming on top of all of that, the challenged
schemes are open to this further objection.
They contain powers to impose conditions in respect of public meetings
and processions. But they do not specify
the sort of conditions that can be imposed.
Instead they leave them at large.
201.
Striking down legislation is a
course of last resort. The first thing
for a court to do when faced with a vague statutory provision is as stated by
Cooke J (now Lord Cooke of Thorndon) when delivering the judgment of the Court
of Appeal in New Zealand in Transport Ministry v. Alexander [1978] 1
NZLR 306. This is, as he said at p.311,
to try to solve the problem by interpretation.
Sometimes the problem can be solved in that way. But sometimes, as in the Transport
Ministry case itself, the provision cannot be saved by interpretation and
has to be declared invalid.
202.
Sometimes words can be read
into a statute. We recognised that in
the common law conspiracy case of Chan Pun Chung v. HKSAR (2000) 3
HKCFAR 392. But as Lord Camden CJ of the
Court of Common Pleas so memorably put it in Entick v. Carrington (1765)
19 State Trials 1029 at p.1067, for the judges “to mould an unlawful power into
a convenient authority, by new restrictions … would be, not judgment, but
legislation.” It is for the judiciary to
declare the constitutional limits within which derogable rights and freedoms
can be restricted by statute. Within the
limits so declared, it is for the legislature to decide what (if any) statutory
restrictions should be enacted. So the
Commissioner of Police’s powers of prior restraint under the challenged schemes
cannot be saved by supplying the necessary safeguards through
interpretation.
203.
Nor are those powers saved by
the fact that their exercise is subject to an appeal to an appeal board. The availability of an appeal does not supply
the missing certainty. At most it merely
transfers the exercise of the uncertain powers from the Commissioner of Police
or his delegate to the Appeal Board. In
this connection, reference can usefully be made to the recent decision of the
House of Lords concerning indefinite detention subject to an appeal to an
appeals commission, A v. Home Secretary [2005] 2 WLR 87. Lord Nicholls of Birkenhead said this at
p.132C:
“ Nor is the vice of indefinite detention cured
by the provision made for independent review by the Special Immigration Appeals
Commission. The commission is well
placed to check that the Secretary of State’s powers are exercised
properly. But what is in question on
these appeals is the existence and width of the statutory powers, not the way
they are being exercised.”
204.
Finally I come to judicial
review. This, too, cannot save the
Commissioner of Police’s powers of prior restraint under the challenged schemes. The judiciary protects constitutional rights
and freedoms by circumscribing powers to restrict them, not by transferring
such powers to itself. For, as Lord Shaw
of Dunfermline said in Scott v. Scott [1913] AC 417 at p.477, “[t]o
remit the maintenance of constitutional right to the region of judicial
discretion is to shift the foundations of freedom from the rock to the sand”.
205.
For the foregoing reasons, I
regard the Commissioner of Police’s powers of prior restraint under the
challenged schemes as insufficiently circumscribed. So I would declare that those powers ¾ being his powers to
(i)
control
and direct the conduct of a public gathering (under s.6,
(ii)
specify
the route by which, and the time at which, a public procession may pass (under
s.6),
(iii)
prohibit
a public meeting (under s.9),
(iv)
impose
conditions in respect of a public meeting (under s.11),
(v)
object
to a public procession (under s.14) and
(vi)
impose
conditions in respect of a public procession (under s.15) ¾
are unconstitutional. And I would strike them down accordingly.
206.
Even in the absence of those
powers, the Commissioner of Police can always offer advice to organisers of public
meetings and processions. They may often
think it wise to accept such advice.
Among the things which accepting such advice could avert are: the risk
of crowd disasters; circumstances in which strong police action is needed to
prevent such disasters; and the commission of public place obstruction
offences. These are just some
examples. I should add that some of the “conditions”
which we were shown look more like advice than anything else.
Amplified
sound
207.
No argument at all has been
directed to the Commissioner of Police’s power under s.6(2). This is his power in regard to the extent to
which music may be played or to which music, human speech or any other sound
may be amplified, broadcast, relayed or otherwise reproduced by artificial
means. I say no more about s.6(2) than
this. It may be appropriate to read it
down to the sort of power which the Privy Council considered acceptable in Francis
v. Chief of Police [1973] AC 761. By
that I mean a power to protect unwilling listeners from what Lord Pearson terms
(at p.773A) “aural aggression” reaching “unbearable intensity”.
Entitlement
to notification is constitutional
208.
That still leaves the
Commissioner of Police’s entitlement to notification of public meetings and
processions. Sections 8(4)(b) and 13A(4)(b)
provide that the particulars to be delivered to the Commissioner of Police are
to include the “purpose and subject-matter” of the public meeting or procession
of which notification is being given. I
have given this requirement anxious consideration. Does it mean that the demonstrators’ message
is to be vetted? Ultimately, I have come
to the conclusion that the “purpose and subject-matter” requirement serves the
purposes of proper policing. It helps
the police to assess matters such as the number of interested onlookers that
the public meeting or procession is likely to attract and whether it might
provoke violent opposition with which they, the police, have to cope. On the basis that the purpose and subject-matter
only have to be notified in general terms, this requirement is acceptable.
209.
One problem remains. On one reading of the notification
requirements for public meetings and processions, they operate to preclude
spontaneous demonstrations. That would
be incompatible with due enjoyment of free assembly. But this problem can be solved by reading
those requirements ¾ as I
would read them ¾ not to cover spontaneous
demonstrations. If this is reading down,
so be it. This problem having been
solved, no problem with notification remains.
210.
Notification of public meetings
and processions enables the Commissioner of Police to make proper arrangements
to police them. Proper policing is in
the legitimate interests of organisers, participants and the general
public. It keeps people safe in situations
which could otherwise turn lethal. Even
if I were capable of forgetting that fact, my memory of it would have been
revived when Mr Shiu took us through the Lan Kwai Fong Report. The Commissioner of Police’s entitlement to
notification of public meetings and public processions is not unreasonable or
otherwise objectionable. Accordingly sections
8 and 13A are constitutional. It follows
that s.7 is constitutional in so far as it provides that a public meeting may
take place only if the Commissioner of Police is notified under s.8 of the
intention to hold the meeting. And it
likewise follows that s.13 is constitutional in so far as it provides that a
public procession may take place only if he is notified under s.13A of the
intention to hold the procession.
211.
Section 17 contain effective
means by which the Commissioner of Police’s entitlement to notification can be
enforced. Those parts of s.17 which are
tied to the Commissioner of Police’s unconstitutional powers of prior restraint
fall with them. But there are parts of
s.17 which are sufficiently independent of those powers to remain on foot. And, in the various ways explained below,
these independent parts of s.17 can play a role in the enforcement of the Commissioner
of Police’s entitlement to notification.
212.
Having regard to the
construction which I place on s.17, I am of the view that non-notified public
meetings and processions contravene sections 7 and 13 respectively within the
meaning of s.17. The construction which
I place on s.17 is to read down the powers thereunder so that they arise only
if non-notification renders proper policing of a public meeting or procession
impracticable without resorting to s.17 powers.
Where non-notification does that, s.17 has the following effect. First, it empowers the police to prevent the
holding of, stop or disperse non-notified public meetings and processions. Secondly, it empowers them to give or issue
necessary or expedient orders and use reasonable force to exercise those powers
of prevention, stoppage and dispersal.
Thirdly, it empowers them to bar access to and close public places in
order to prevent non-notified public meetings or processions taking place
there. And finally, it empowers them to
use reasonable force to prevent any person from entering or remaining upon a
public place thus closed to him. These
are not powers of prior restraint. They
arise when non-spontaneous public meetings or processions are held without
notification and non-notification renders proper policing otherwise impracticable. And they are constitutional as being
compatible with free assembly.
213.
Suppose notification of a
public meeting or procession is given, and the police make arrangements for the
meeting or procession to be policed properly in the legitimate interests of
organisers, participants and the general public. Wilfully obstructing the implementation of
those arrangements could amount to the offence of wilfully obstructing a police
officer in the due execution of his duty, contrary to s.36(b) of the Offences
against the Person Ordinance, Cap. 212.
So could wilfully obstructing the police in their exercise of s.17
powers forced upon them by non-notification.
Section 17A (the criminal offence
creating section) is unconstitutional
214.
As explained above, there are constitutional
means of enforcing the Commissioner of Police’s entitlement to
notification. But I would not include
s.17A among them. Going by nothing more
than linguistic considerations alone, there are parts of s.17A which might
possibly be read as creating what are in effect non-notification offences
independent of the Commissioner of Police’s unconstitutional powers of prior
restraint. But as the Privy Council said
in Attorney General for Alberta v. Attorney General for Canada [1947] AC
503 at p.518:
“The
real question is whether what remains is so inextricably bound up with the part
declared invalid that what remains cannot independently survive or, as it has
sometimes been put, whether on a fair review of the whole matter it can be
assumed that the legislature would have enacted what survives without enacting
the part that is ultra vires at all.”
Describing that as the “familiar test”, the Privy Council
recently applied it in IJCHR v. Marshall-Burnett [2005] 2 WLR 923 at pp
934H-935A. And at p.935B their Lordships
cited a similar test articulated in the Supreme Court of Ireland by Fitzgerald
CJ in Maher v. Attorney General [1973] IR 140 at p.147:
“But
if what remains is so inextricably bound up with the part held invalid that the
remainder cannot survive independently, or if the remainder would not represent
the legislative intent, the remaining part will not be severed and given
constitutional validity.”
215.
In my view s.17A is too bound
up with the Commissioner of Police’s unconstitutional powers of prior restraint
to have any life independent of those powers attributed to it. Putting it in the words used in the right of
abode case of Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 at
p.37D, s.17A is not “distinct from” those powers. Quite apart from anything else, who can say
that the legislature, realising that those powers are unconstitutional, would
nevertheless enact the offences and penalties found in s.17A? In my view, s.17A falls together with the
Commissioner of Police’s unconstitutional powers of prior restraint. I would declare s.17A unconstitutional and
strike it down.
Conclusion
216.
I thank all concerned for the
arguments which they have prepared and presented.
217.
For the reasons which I have
given, I hold as follows in regard to the challenged schemes. The Commissioner of Police’s entitlement to
prior notification of public meetings and processions is constitutional. This entitlement is enforceable in the
various ways which I have indicated, but not by the criminal sanctions in
s.17A. The Commissioner of Police’s
powers of prior restraint are unconstitutional.
And the criminal sanctions follow the fate of those powers so as to be
unconstitutional too. Accordingly I
would allow this appeal so as to quash these convictions and set aside these
binding-over orders on the ground that the penal provisions under which the
appellants were convicted are unconstitutional.
As to costs, I would order legal aid taxation of the 2nd and 3rd
appellants’ costs, and make an order nisi awarding all three appellants
their costs here and in the courts below.
Chief Justice Li :
218.
The Court (with Mr Justice
Bokhary PJ dissenting) dismisses this appeal and upholds the convictions. The parties should respectively provide in
writing within 14 days any submissions as to the appropriate costs order.
(Andrew Li)
|
(Kemal Bokhary)
|
(Patrick Chan)
|
|
Chief Justice
|
Permanent Judge
|
Permanent Judge
|
|
(R.A.V. Ribeiro)
|
(Sir Anthony Mason)
|
||
Permanent Judge
|
Non-Permanent Judge
|
||
1st appellant in person
Mr Martin Lee SC and Mr Erik Shum
(instructed by Messrs Ho, Tse, Wai & Partners and assigned by the Legal Aid
Department) for the 2nd & 3rd appellants
Mr Gerard McCoy SC (instructed by the Department of Justice),
Mr Gavin Shiu and Mr David Leung (of that Department) for the
respondent
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