Hong Kong Special Administrative Region v Ng Kung Siu and Lee Kin Yun

CourtCourt of Appeal (Hong Kong)
Date15 December 1999
Hong Kong Special Administrative Region, Court of Appeal.
Court of Final Appeal.

(Power V-P; Mayo and Stuart-Moore JJA)

(Li CJ; Litton, Ching and Bokhary PJJ and Sir Anthony Mason NPJ)

Hong Kong Special Administrative Region
and
Ng Kung Siu and Lee Kin Yun1

Human rights Freedom of expression Flag desecration Guarantees of right to freedom of expression Basic Law of Hong Kong Special Administrative Region (Basic Law), Articles 39 and 27 International Covenant on Civil and Political Rights, 1966 (ICCPR), Article 19 National laws criminalizing flag desecration Whether inconsistent with guarantee of freedom of expression Whether restriction on freedom of expression necessary for protection of public order Whether restriction justified under Article 19(3) of ICCPR Whether national laws unconstitutional

Relationship of international law and municipal law National laws criminalizing flag desecration Basic Law ICCPR Basic Law applying ICCPR to Hong Kong Special Administrative Region Guarantees of right to freedom of expression Whether restriction in national laws justifiable Whether national laws violating Basic Law Whether national laws unconstitutional

States Sovereignty Transfer of sovereignty People's Republic of China resuming sovereignty over Hong Kong on 1 July 1997 New constitutional order National and regional flags and emblems Symbols of People's Republic of China and Hong Kong Special Administrative Region Whether interests in protecting flags legitimate The law of the Hong Kong Special Administrative Region

Summary: The facts:On 1 January 1998 the defendants, Mr Ng and Mr Lee, participated in a peaceful demonstration in the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China (PRC), at which they displayed defaced national and regional flags. On 18 May 1998 they were convicted of having desecrated both the national and regional flags by publicly and wilfully defiling them, contrary to Section 7 of the National Flag and National Emblem Ordinance and Section 7 of the Regional Flag and Regional Emblem Ordinance (the Flag Ordinances).2 The defendants appealed, claiming that the Flag Ordinances were inconsistent with the guarantees of freedom of expression in the Basic Law of the HKSAR.

On 1 July 1997 the PRC had resumed sovereignty over Hong Kong and the Basic Law of the HKSAR (the Basic Law) had come into operation. Article 39 of the Basic Law3, which applied the International Covenant on Civil and Political Rights, 1966 (the ICCPR) to the HKSAR, together with Article 27 of the Basic Law,4 guaranteed freedom of expression in the HKSAR. The Hong Kong Bill of Rights, which embodied the substantive provisions of the ICCPR, replicated Article 19 of the ICCPR5 in its Article 16. Article 19 of the ICCPR provided for the right to freedom of expression. Article 19(3) permitted certain restrictions that were provided by law and necessary for the protection of public order (ordre public).

Held (by the Court of Appeal):The appeal was allowed and the convictions quashed.

Although the flag was a powerful national and regional symbol to be accorded due respect, the PRC had given its assent to the Basic Law which gave effect in the HKSAR to the ICCPR. As Section 7 in each Flag Ordinance was inconsistent with Article 19 of the ICCPR and thus contravened Section 39 of the Basic Law, the Court had to concentrate upon whether the Flag Ordinances were necessary under the terms of Article 19(3) of the ICCPR. The legislation could not be justified as necessary for the protection of public order. Abuse of the flag could be punished by other offences and it was unlikely that the desecration of a national or regional flag would result in serious civil disturbance. Indeed, the right to freedom of expression in the United States of America included the right to burn the national flag, and defacing the national flag was not criminalized in any of the leading common law jurisdictions (pp. 5756).

The HKSAR appealed.

Held (by the Court of Final Appeal):The appeal was allowed and the convictions restored.

(1) The national flag was the unique symbol of the PRC and its sovereignty, representing its dignity, unity and territorial integrity. The regional flag was the unique symbol of the HKSAR as an inalienable part of the PRC under the principle of one country, two systems. As such the interests that the PRC and the HKSAR had in protecting their flags were legitimate (pp. 577 and 592).

(2) Freedom of expression, of which flag desecration was a form, was a fundamental freedom in a democratic society. It lay at the heart of civil society and of Hong Kong's system and way of life, and its constitutional guarantee was to be given a generous interpretation by the courts but it was not an absolute right. That the individual had duties to other individuals and to his community was recognized in the Preamble and Article 19(3) of the ICCPR (pp. 5878).

(3) The concept of public order was wider than the common law notion of law and order. It was an imprecise and elusive concept which included what was necessary for the protection of the general welfare or for the interests of the collectivity as a whole. The concept also remained a function of time, place and circumstances. Given that Hong Kong had a new constitutional order, circumstances were such that the legitimate societal and community interests in the protection of the flags did fall within the concept of public order (ordre public) contained in Article 19(3) of the ICCPR. As unique symbols of the PRC and the HKSAR, as an inalienable part of the PRC under the principle of one country, two systems, these legitimate interests formed part of the general welfare and interests of the collectivity as a whole (pp. 5912).

(4) The Flag Ordinances placed only a limited restriction on the freedom of expression in that they left a person free to express the same message using other modes. As a limited restriction on the guaranteed right to freedom of expression, the criminalization of flag desecration was necessary for the protection of public order. It was proportionate to the aims sought to be achieved. That the flags be protected was important given the early stage of Hong Kong's new constitutional order and the part that they would play in the implementation of the one country, two systems principle and in the reinforcement of national unity and territorial integrity. As such Sections 7 of the Flag Ordinances were constitutional and did not contravene the Basic Law (pp. 588, 5923).

Per Bokhary PJ (concurring): (1) As Article 27 of the Basic Law made no express provision for any restriction on any of the rights that it conferred, its guarantee of freedom of expression was even more powerful than that contained in Article 16 of the Bill of Rights, which did make such express provision (p. 596).

(2) The Flag Ordinances were not irreconcilable with the freedom of expression guaranteed by the Constitution as they were specific, did not affect the substance of the expression, and touched upon the mode of expression only to the extent of keeping flags and emblems impartially beyond politics and strife (pp. 597601).

The text of the judgments delivered in the Court of Final Appeal commences at p. 577. The text of the judgment of the Court of Appeal, delivered by Stuart-Moore JA, commences on the opposite page.

On 18 May 1998, the appellants (Dl and D2 respectively) were each convicted on two summonses, following a trial before Mr Tong Man in Western Magistrates' Court. On 8 December 1998, the matter was listed as an appeal before Beeson J. After hearing representations from both sides who agreed that this matter should be heard in the Court of Appeal and, in pursuance of s. 118(l)(d) of the Magistrates Ordinance (Cap.227), the Judge then directed that these appeals should be argued before this Court.

D2 was absent throughout the hearing of the appeals. It had not been possible to locate him for the purpose of serving him with a notice of hearing, and his present whereabouts are unknown. Nevertheless, we indicated at the commencement of the appeals that we thought it desirable to hear submissions on behalf of D1, and for the respondent, before deciding what course to adopt in relation to D2.

The first pair of summonses alleged against Dl and D2 in identical terms that they had desecrated the national flag by publicly and wilfully defiling it, contrary to s.7 of the National Flag and National Emblem Ordinance (No 116 of 1997) (now Cap. 1557). The second pair of summonses also alleged in identical terms that D1 and D2 had each desecrated the regional flag by publicly and wilfully defiling it, contrary to s.7 of the Regional Flag and Regional Emblem Ordinance (No 117 of 1997) (now Cap. 1558). Each offence was said to have occurred on 1 January 1998.

The learned Magistrate, having convicted both defendants, made an order that Dl and D2 should each be bound over to keep the peace in his own recognisance of $2,000 on each summons for a period of 12 months.

The appeals are solely directed at conviction.

There was no issue on the facts at trial. As the Magistrate rightly pointed out in his ruling on a submission of no case to answer, the entire summary of facts put forward by the prosecution was admitted by the defence under s.65C of the Criminal Procedure Ordinance (Cap.221). The questions calling for his decision related purely to the legal issues that were raised. However, there was really only one central question calling for the Magistrate's decision, namely whether the National Flag and National Emblem Ordinance (No 116 of 1997) (now Cap. 1557) and the Regional Flag and Regional Emblem Ordinance (No 117 of 1997) (now Cap. 1558), which we shall call the Flag Ordinances, were inconsistent with the guarantees of freedom of expression in the Basic Law.

The facts revealed that the incidents which are the subject of these proceedings, arose out of a small demonstration of a few hundred people...

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