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Judgment Summary (English Version)
Judgment Summary (Chinese Version)
HCMA 16/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MAGISTRACY APPEAL NO. 16 OF 2003
(ON APPEAL FROM KCCC NO. 8456 of 2002)
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BETWEEN
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HKSAR (香港特別行政區)
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Respondent
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and
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LEUNG KWOK HUNG (梁國雄)
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1st Appellant
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FUNG KA KEUNG, CHRISTOPHER （馮家強）
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2nd Appellant
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LO WAI MING （盧偉明）
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3rd Appellant
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_________________________
Before : Hon Ma CJHC, Stock & Yeung JJA in Court
Dates of Hearing : 24-27 February & 24-25 June 2004
Date of Handing Down Judgment : 10 November 2004
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J U D G M E N T
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Hon Ma CJHC :
1. In this appeal, we are concerned with the limits to the freedom of peaceful assembly as contained in the Public Order Ordinance, Cap.245 (“the POO”). The issues raised are of considerable importance. On 23 June 2003, Pang J directed that this magistracy appeal be heard by the Court of Appeal under section 118(1)(d) of the Magistrates Ordinance, Cap.227.
2. On 25 November 2002, the 1st Appellant was convicted at Kowloon City Magistracy of holding an unauthorized assembly on 10 February 2002 contrary to section 17A(3)(b)(i) of the POO. He was bound over on his own recognizance for $500 for a period of 3 months.
3. The same day, the 2nd and 3rd Appellants were also convicted at the Kowloon City Magistracy of the offence of assisting in the holding of an authorized assembly contrary to section 17A(3)(b)(i) of the POO. Each was similarly bound over on a recognizance of $500 for a period of 3 months.
4. The Appellants had all pleaded not guilty to these offences. The trial took place over the course of 10 days from September to November 2002. The presiding magistrate was the Chief Magistrate, Mr Patrick Li. The reasons for his decision to convict dated 25 November 2002 have been reported in [2002] 4 HKC 564.
5. The convictions arose from a demonstration that took place on the morning of 10 February 2002 (a Sunday). At about 11:00 am that day, a number of people gathered at Chater Garden to get ready for a procession. The 2nd Appellant used a loudhailer calling on all participants to gather. There was to be a demonstration apparently to protest against the conviction of a fellow activist for assault and obstruction on a police officer.
6. The police were already present at the scene since there was a right of abode demonstration also in Chater Garden at the time. One of the police officers on duty ascertained that the person in charge of the procession with which we are concerned, was the 1st Appellant. The 1st Appellant was then a well-known activist. He is now a member of the Legislative Council.
7. The 1st Appellant was asked to go through a notification procedure under the POO in order to get the necessary permission to hold the procession but he refused. He was warned for not making an application. At about 11:16 am, the procession comprising about 40 people set off from Chater Garden in the direction of the Police Headquarters at Arsenal House on Arsenal Street. They proceeded along Queensway and although the police asked them to use the pedestrian pavement, the demonstrators refused and used the left traffic lane of that road instead. The three Appellants (the 1st Appellant being in the April 5th Action Group, the 2nd and 3rd Appellants being part of the Hong Kong Federation of Students) were in the second row of the marchers. As the demonstrators marched along Queensway, others joined in so that eventually the numbers swelled to about 96 persons. They did eventually reach the Police Headquarters and demonstrated there for about an hour before dispersing. The Magistrate found the procession to have been peaceful at all times.
8. Nothing turns on the facts in this appeal. Instead the focus has been on the constitutionality of certain provisions in the POO. It is the first time that this Court has been faced with this important issue. In this appeal, the 1st Appellant was unrepresented and made submissions on his own behalf. Mr Michael Blanchflower SC and Mr Y L Cheung appeared for the 2nd and 3rd Appellants. Mr Gerard McCoy SC, Mr Gavin Shiu and Mr David Leung appeared for the Respondent.
9. Before going into the issues in this appeal, I would first like to identify the relevant provisions of the Basic Law, the International Covenant on Civil and Political Rights (“the ICCPR”) and the Bill of Rights dealing with the freedom of assembly and then outline the statutory scheme under the POO regarding public gatherings, meetings and processions. The constitutional challenge made by the Appellants is against sections 13, 13A, 14, 15, 16, 17A, 43, 44 and 44A of the Ordinance.
The freedom of assembly
10. Article 27 of the Basic Law (which is under Chapter III containing the fundamental rights of residents of Hong Kong) states in part that Hong Kong residents shall have the freedom of speech and of assembly.
11. The freedom of assembly (together with its limitations) is also contained in Article 21 of the ICCPR : -
“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.”
12. The provisions of the ICCPR apply in Hong Kong and the freedoms contained therein are guaranteed under the Basic Law. Article 39 reads :-
“The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
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.”
13. The freedom of assembly is also guaranteed under Article 17 of the Bill of Rights under the Hong Kong Bill of Rights Ordinance, Cap.383, which reproduces in identical terms Article 21 of the ICCPR.
14. This freedom is of course closely linked to the freedom of speech and demonstration (which are expressly guaranteed by Article 27 of the Basic Law) and of expression (which is a stated right in Article 19 of the ICCPR and Article 16 of the Bill of Rights). There is in the circumstances of the present case no real distinction between these freedoms. For convenience, I will only address the freedom of assembly as being the applicable right in this appeal.
15. The fundamental rights and freedoms guaranteed under the Basic Law must be given a purposive and generous meaning in order to give to Hong Kong residents the full measure of such rights and freedoms : - see Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4, at 28D-29B. As the Chief Justice remarked earlier in the judgment in that case, these freedoms lie at the heart of Hong Kong’s existence. Quite simply, the existence of such freedoms (including the freedom of assembly) make Hong Kong a truly free society. They are to be jealously guarded.
16. Although the fundamental freedoms are to be construed generously, they are not absolute. Notwithstanding that the freedom of assembly is expressed in unqualified terms in Article 27 of the Basic Law, Article 39 makes provisions for limits to be imposed on that right if the following conditions are met : -
(1) any restrictions must be “prescribed by law”; and
(2) any restrictions must also not contravene the ICCPR.
17. The term “prescribed by law” assumes considerable importance in this appeal and indeed constitutes the main point of controversy. I will deal further with this aspect below.
18. The relevant provision in the ICCPR is of course Article 21 (set out in paragraph 11 above). That Article provides that any restriction on the right of peaceful assembly must be : -
(1) in conformity with the law (this term repeats the concept of “prescribed by law” in Article 39 of the Basic Law); and
(2) “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”.
These limitations are reproduced word for word in Article 17 of the Bill of Rights.
19. It will presently be necessary to analyze in detail these limitations on the freedom of assembly, but I should stress at this point that any restrictions on fundamental freedoms are to be narrowly construed and the burden lies on the party seeking to restrict (usually the Government) to justify such restrictions : - see HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442, at 457B-C, reiterated by the Court of Final Appeal in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480, at 490D-E (paragraph 24).
20. Sometimes, particularly where the provision guaranteeing a right does not itself contain stated limitations, the courts have adopted the following test (in the form of three questions) in relation to any legislation that limits a fundamental freedom of right : -
(1) Can sensible and fair-minded people recognize that the objective of the legislation (that restricts the right) is sufficiently important to justify limiting a fundamental right?
(2) Are the measures designed to meet the legislative objective rationally connected to it?
(3) Are the means used to restrict the...
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