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Hksar v Fong Kwok Shan Christine

Judgment Cited authorities 15 Cited in Precedent Map Related
Vincent
Judgment Date04 October 2017
Citation(2017) 20 HKCFAR 425
Judgement NumberFACC2/2017
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC2/2017 HKSAR v. FONG KWOK SHAN CHRISTINE

FACC No. 2 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2017 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 666 OF 2015)

____________

BETWEEN

HKSAR Respondent
and
FONG KWOK SHAN CHRISTINE（方國珊）(D1) Appellant

____________
Before: Chief Justice Ma, Mr Justice Ribeiro PJ Mr Justice Fok PJ, Mr Justice Chan NPJ and Lord Neuberger of Abbotsbury NPJ
Date of Hearing: 4 September 2017
Date of Judgment: 4 October 2017

___________________________

JUDGMENT

___________________________

Chief Justice Ma:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. In this appeal, which arises out of demonstrations mounted in a public gallery during sittings of a subcommittee of the Legislative Council (“LegCo”), the validity of two Administrative Instructions regulating admittance to and conduct within LegCo’s precincts is challenged on the basis that they infringe the right to freedom of expression.

A. The relevant events

3. The facts are not in dispute. The appellant was a member of the Sai Kung District Council. Together with two of her assistants[1] and several others, she attended meetings of LegCo’s Public Works Subcommittee held on 7 and 13 May 2014 respectively when a project for extending the South-East New Territories landfill was discussed. It was a project which she and fellow residents strongly opposed.

4. On each occasion, she was admitted to the public gallery above Conference Room 1 in the LegCo complex where the meeting was being held. At the first meeting, she removed her jacket so that the characters 保衛將軍澳 (“Defend Tseung Kwan O”) were displayed on the T-shirt that she was wearing. She also handed to Cheung Mei-hung, one of her assistants, a paper poster depicting a Nazi Swastika with the characters 毒氣集中營 – 堆填區 (“Poison Gas Concentration Camp – Landfill”) which he displayed by holding it against the glass panel which walled off the public gallery above the conference room. This led to a commotion as security guards sought to seize the sign, leading to one guard sustaining bruising on her left wrist. The incident caused the Subcommittee’s meeting to be prematurely adjourned.

5. At the second meeting, the appellant and several others in the public gallery chanted slogans opposing the project, causing the Subcommittee’s chairman to warn them that they would be ejected if they did not stop. As the warnings were ignored and as the appellant and others linked arms to resist ejectment, the meeting was stood down and reconvened in a different conference room about an hour later with the public excluded from attendance.[2]

B. The charges and the decisions below

6. Section 8 of the Legislative Council (Powers and Privileges) Ordinance (“LCPPO”)[3] regulates the admittance of persons to the LegCo complex. Section 8(3) provides that the President may:

“... for the purpose of maintaining the security of the precincts of the Chamber, ensuring the proper behaviour and decorum of persons therein and for other administrative purposes, issue such administrative instructions as he may deem necessary or expedient for regulating the admittance of persons (other than members or officers of the Council) to, and the conduct of such persons within, the Chamber and the precincts of the Chamber.”

7. By LCPPO section 20(b), contravention of such an administrative instruction or any direction given thereunder is made an offence punishable by a fine of $2,000 and imprisonment for 3 months.

8. Pursuant to section 8(3), the President issued the Administrative Instructions for Regulating Admittance and Conduct of Person[4] (“Administrative Instructions”) which include the following provisions which are under challenge:

“Section 11: Requirement for orderly behaviour (‘AI section 11’)

Persons entering or within the precincts of the Chamber shall behave in an orderly manner and comply with any direction given by any officer of the Council for the purpose of keeping order.

Section 12: Conduct in galleries (‘AI section 12’)

(1) No person shall, in a press or public gallery, display any sign, message or banner.

(2) No person shall, in a press or public gallery, display any sign or message on any item of clothing.

(3) An officer of the Council may refuse admission to a press or public gallery to any person displaying any sign, message or banner, or to any person displaying any sign or message on any item of clothing, or to any person who, in the opinion of an officer of the Council, may so display any sign, message or banner, may so display any sign or message on any item of clothing or may otherwise behave in a disorderly manner. ...”

9. The appellant was charged jointly with Cheung Mei-hung with contravening AI section 12(1) at the 7 May 2014 meeting of the Subcommittee “in that they displayed sign and message in the public gallery”. They were also charged with contravening AI section 11 at the 13 May 2014 meeting “in that they failed to behave in an orderly manner within the precincts of the Chamber of the Legislative Council”.

10. The appellant was convicted after trial by the Magistrate[5] and fined $1,000 on each charge. Her appeal was dismissed by Wong J[6] who certified the following questions, reflecting the appellant’s constitutional challenge, as raising points of law of great and general importance, namely:

(1) Whether the enactment of section 11 of the Administrative Instructions for Regulating Admittance and Conduct of Persons pursuant to section 20(b) of the Legislative Council (Powers and Privileges) Ordinance (Cap 382) is inconsistent with the principle of freedom of speech guaranteed by article 27 of the Basic Law and article 16 of the Bill of Rights, which rendered section 11 unconstitutional?

(2) The same question ... in respect of section 12(1) of the Administrative Instructions for Regulating Admittance and Conduct of Persons.

11. Leave to appeal was granted by the Appeal Committee on the basis of the questions so certified.[7]

C. The constitutional provisions

12. Article 27 of the Basic Law (“BL 27”),[8] on which the certified questions are based, states:

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.

13. By BL 39, the Basic Law relevantly 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. As is well-established,[9] the Hong Kong Bill of Rights Ordinance (“HKBORO”)[10] which enacts the Hong Kong Bill of Rights, implements the International Covenant on Civil and Political Rights (“ICCPR”) so that the Bill of Rights is given constitutional status by BL 39. Article 16 of the Bill of Rights (“BOR 16”) provides:

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

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

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

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

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

15. This Court has held[11] that there is no difference between the right of peaceful assembly guaranteed by BL 27 and that provided for in BOR 17.[12] The same applies to freedom of speech under BL 27 and freedom of expression under BOR 16. The Court has also noted[13] that the rights to freedom of expression, of public assembly and of procession and demonstration are closely related, making the case-law on these associated freedoms collectively relevant.

16. Accordingly, by the combined effect of BL 39 and BOR 16, if any purported restriction on the right of free expression is to be valid, it must have sufficient legal certainty to qualify as a restriction “prescribed by law”[14] and must be “necessary for respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.” It is established that the requirement of necessity involves the application of a proportionality test[15] and that the objectives listed in BOR 16 are exhaustive of purposes qualifying as legitimate aims to justify a purported restriction of the guaranteed right.[16]

D. The issues in this appeal

17. The issues raised by Mr Hectar Pun SC[17] fall within a relatively narrow compass.

18. On the charge relating to the first incident, he submits that “the total and blanket prohibition imposed by section 12(1) of the Administrative Instructions on the display of any ‘sign, message or banner’ in a press or public gallery in the LegCo fails to satisfy the third stage of the proportionality test.” He argues that the only legitimate purpose said to be pursued by AI section 12 is the protection...

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