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Chee Fei Ming v Director Of Food And Environmental Hygiene And Another

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date16 December 2019
Neutral Citation[2019] HKCA 1425
Citation[2020] 1 HKLRD 373
Judgement NumberCACV489/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV489/2018 CHEE FEI MING v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

CACV 489/2018
and CACV 490/2018

[2019] HKCA 1425

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 489 OF 2018

(ON APPEAL FROM HCAL 73/2013)

________________________

BETWEEN

CHEE FEI MING
substituted by PUN LIN FA
pursuant to consent order dated 13.10.2014		 Applicant
and
DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE 1st Respondent
SECRETARY FOR JUSTICE 2nd Respondent
LANDS DEPARTMENT Interested Party

__________________________

AND

CIVIL APPEAL NO 490 OF 2018

(ON APPEAL FROM HCAL 110/2013)

________________________

BETWEEN

HUNG SHUI FUNG Applicant
and
DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE 1st Respondent
SECRETARY FOR JUSTICE 2nd Respondent

__________________________

(Heard together)

Before: Hon Lam VP, Barma and Au JJA in Court
Dates of Hearing: 12 and 13 November 2019
Date of Judgment: 16 December 2019

________________

JUDGMENT

________________

Hon Lam VP (giving the Judgment of the Court):

1. This case concerns the control of display of bills or posters on Government land under the Public Health and Municipal Services Ordinance Cap 132 (“the Ordinance”) and its impact on the display of banners in static demonstrations. The applicants contend that the statutory control infringes their freedom of demonstration and apply for judicial review to challenge decisions to remove their banners which were displayed without the permission of the Director of Food and Environmental Hygiene (“the Director”) in 2013. The procedural history of the proceedings was set out at [33] to [39] of the judgment of G Lam J of 31 August 2018.

2. These appeals are the second occasion these matters have come before this Court. Previously, in CACV 219 and 220/2014, this Court (Cheung CJHC, as he then was, Lam VP and Barma JA) upheld the decision of Poon J (as he then was) refusing leave to apply for judicial review based on the grounds advanced in the Court of First Instance. However, this Court allowed the appeal on the basis of new arguments and granted leave to apply for judicial review based on two grounds:

(a) Section 104A of the Ordinance does not satisfy the “prescribed by law” requirement[1]; and

(b) Section 104A of the Ordinance does not satisfy the proportionality test by reason of the criterion based on content-screening[2].

3. The substantive judicial review was heard by G Lam J. By a judgment of 31 August 2018, the judge held that Section 104A did not satisfy the “prescribed by law” requirement[3] and granted an order for Certiorari quashing the decisions of the Director in 2013 removing the banners and placards from the Falun Gong (“FLG”) demonstration locations.

4. The judge did not rule on the proportionality issue because he was of the view that the evidence did not contain a sufficient and proper basis for a proportionality analysis[4] and no application had been made by the FLG demonstrators for permission under Section 104A.

5. The facts and circumstances leading to these judicial review applications have been set out at some length by Poon J in the judgment of 15 October 2014, and were adopted by G Lam J at [3] of his judgment of 31 August 2018. We shall also gratefully adopt the same for the purpose of this judgment:

“ 3. The applicants in these judicial review proceedings are Falun Gong (“FLG”) practitioners. They and other fellow FLG practitioners have for years been staging what they describe as “static demonstrations” at various locations in public places that fall within the Director’s purview under section 104A(1)(b). According to surveillance conducted by the Food and Environmental and Hygiene Department (“FEHD”) in March 2013, there are 26 of such locations all over Hong Kong where the FLG practitioners hold the static demonstrations (“the 26 Locations”).

4. Publicity materials falling within section 104A(1) of the Ordinance are always displayed on the 26 Locations for the purpose of the FLG static demonstrations. But no permission has ever been obtained from either the Director under section 104A(1)(b) or LD under the Management Scheme for displaying the publicity materials at any of the 26 Locations. Indeed, no application for permission to do so has ever been made to either the Director or LD. It is because the FLG demonstrators adamantly regard such application as an unreasonable and unnecessary restriction of the lawful exercise of their freedoms of demonstration, assembly and speech as guaranteed by the Basic Law and the Hong Kong Bill of Rights.

…

9. FLG is a Buddhist movement first started in the Mainland in 1992. It has since attracted many followers both in the Mainland and overseas. In about 1999, FLG was branded as a cult by the Mainland authority. Since then, FLG practitioners have staged demonstrations in different places overseas to protest against what they perceive as persecutions of fellow FLG practitioners in the Mainland.

10. In Hong Kong, FLG practitioners have been staging static demonstrations at the 26 Locations which they refer to as “truth clarification sites” for years. The sites are manned by individual or several FLG members. Typically, banners, placards or billboards are affixed to the railings or other fixed objects on the roadsides at fixed hours or even around clock. Some of the banners, placards or billboards are sometimes free standing or fixed to portable frames. During the static demonstrations, an individual or a group of FLG practitioners stand or gather in front of the displayed materials, which form the backdrop of the demonstrations. Occasionally the demonstrators distribute pamphlets to the public. The demonstrations usually last for hours. At some of the locations, the banners, placards or billboards are removed after the demonstrations. But at some other locations, the materials are simply left at the scene and continue to be displayed there around the clock.

11. The applicants did not go to all the 26 Locations to join the static demonstrations. They only went to some of them.

12. Mr Hung attended 3 of the 26 Locations only. They were situated at (a) the exterior wall of Exit D2 of Sham Shui Po MTR Station and the public area nearby (“the SSP Site”); (b) railing and public outside Wai Fung Plaza, Argyle Street (“the AS-WFP Site”); (c) the pedestrian precinct in Sai Yeung Choi Street near Shan Tung Street (“the SYCSS Site”). It was Mr Hung who “managed” them. According to him:

(1) At the SSP Site, the FLG demonstrators had not affixed any of the banners or placards to any roadside railings but to their own loose portable frameworks. The frameworks were then placed adjacent to the external walls of the MTR exit and the subway entrance during the demonstration. Mr Hung was responsible for the setting up and removal of the demonstration materials. Demonstrations have been carried out there since 2001.

(2) At the AS‑WFP Site, small size placards are temporarily affixed to the railings during the demonstration. They were removed after the demonstration. Demonstrations have been carried out at the Site since 2007.

(3) At the SYCSS Site, the banners and placards were not affixed to any roadside railings. The FLG demonstrators placed them within the pedestrian precinct near the pavement. The materials were removed after the demonstration. Demonstrations have been carried out at the Site since 2006.

13. Mr Hung had no responsibility for the demonstrations at other locations.

14. Madam Chee joined the static demonstrations at 10 different locations at Sai Wan, Tsim Sha Tsui, Mongkok, Wong Tai Sin and Lok Ma Chau by mainly distributing pamphlets to the public. She herself was not responsible for displaying the banners, placards or billboards at any of the locations that she attends. On the evidence before me, it is not clear as to who is responsible for so doing.

15. It is not in dispute that none of the 13 locations that the applicants attended is the roadside designated spot under the Management Scheme, which means that the Management Scheme has no application to them at all. As to the other 13 locations which the applicants did not attend, it is not clear from the evidence if the Management Scheme applies.

B2. HKYC demonstrations

16. The static demonstrations by the FLG members were by and large peaceful and orderly.

17. However, since June 2012, an organization called Hong Kong Youth Care Association (“HKYC”) has been campaigning against FLG. They staged demonstrations regularly against FLG at some of the 26 Locations, including the three Sites managed by Mr Hung. The FLG demonstrators including the applicants considered the actions taken by HKYC members at their demonstrations hostile because:

(1) they displayed banners hostile to FLG, often in close proximity to the FLG banners obstructing the public’s view of the latter;

(2) they harassed, threatened and intimidated FLG demonstrators by shouting abuse at them;

(3) they placed loudspeakers set at high volume very close to FLG demonstrators, thereby causing severe discomfort; and

(4) a HKYC supporter had on one occasion brandished a knife at a reporter at a FLG demonstration.

18. The FLG demonstrators complained that the HKYC’s activities had resulted in nuisance and annoyance, both to them and occasionally to members of the public in the vicinity.

B3. Enforcement actions

19. Since mid‑2012, FEHD had received a large number of public complaints in respect of the unauthorized display of publicity materials by FLG and HKYC. Following up on the complaints, FEHD conducted investigations, which revealed that FLG and HKYC displayed their publicity materials very close to each other and...

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