|
HCAL 183/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 183 OF 2013
____________
|
BETWEEN
|
| |
LAI MAN LOK |
Applicant |
|
and
|
| |
DIRECTOR OF HOME AFFAIRS |
Respondent |
____________
| Before: Hon Chow J in Court |
| Date of Hearing: 18 January 2017 |
| Date of Judgment: 23 May 2017 |
___________________
J U D G M E N T
___________________
INTRODUCTION
1. By his Originating Summons dated 22 April 2014, the Applicant applied for judicial review of the decision of the Director of Home Affairs (“the Director”) made on 1 October 2013 –
“directing, permitting, allowing or acquiescing to the security personnel of the HKCEC[1] and/or other unidentifiable persons to remove the Applicant by using force against him at the Ceremony[2] at the Square[3], on the ground that the Applicant entered a wrong viewing area” (“the Decision”),
leave to make the application having been granted by Au J on 22 April 2015 on the grounds as set out in the Applicant’s Amended Form 86 dated 10 April 2015.
2. Two main issues arise for determination in this judgment:-
(1) whether there was violation of the Applicant’s right to the freedom of the person; and
(2) whether there was violation of the Applicant’s rights to the freedom of expression, assembly and demonstration.
BAsic FACTS
3. At the hearing on 18 January 2017, the parties submitted a statement of agreed facts prepared for the purpose of the present application. The following narrative is based on that statement.
4. A flat raising ceremony (“the Ceremony”) to celebrate the founding of the People’s Republic of China was held on 1 October 2013 at the seafront promenade of the Hong Kong Convention and Exhibition Centre (“HKCEC”) near the Golden Bauhinia Statue (“the Venue”). Since 1997, a flat raising ceremony has been held at the Venue on the anniversary of the establishment of the HKSAR on 1 July and on the National Day on 1 October each year.
5. The Venue consisted of public roadways and several parcels of land allocated and/or leased to various Government Departments and private entities, but the Home Affairs Department (“HAD”) obtained permission so that it would have exclusive use of the Venue on 1 October 2013 for 12 hours from 0000 hours to 1200 hours and for the purpose of the Ceremony.
6. Four separate viewing areas were demarcated, viz: the “Invited Guest Area”, the “Uniformed Groups Area”, the “Community Groups Viewing Area” and the “Public Viewing Area”.
7. On 1 October 2013, the Applicant went to the Venue. He and his colleagues from Scholarism (including Mr Joshua Wong) joined the queue at the junction of` Convention Avenue and Expo Drive East. They specifically indicated to the HAD staff present that they were only planning to silently raise high the hand gesture of “universal nomination” during the playing of the National Anthem and it was on that basis that the HAD staff allowed them into the Venue.
8. The Applicant and Mr Joshua Wong somehow went to the Community Groups Viewing Area. While Mr Joshua Wong was being interviewed by the Television Broadcasts news reporter, the Applicant and Mr Joshua Wong were told by the HAD staff and security personnel that they should return to the Public Viewing Area. They also offered to escort the Applicant and Mr Joshua Wong back to the Public Viewing Area.
9. The Applicant did not return to the Public Viewing Area.
10. The HAD staff and security personnel tried to remove the Applicant from the Community Groups Viewing Area and to bring him to the Public Viewing Area by dragging and hauling with force. They managed to remove the Applicant to the edge of the Community Groups Viewing Area but failed to remove him to the Public Viewing Area. The Applicant remained in the edge of the Community Groups Viewing Area when the Ceremony began.
11. During the playing of the National Anthem, the Applicant made the hand gesture he had planned to make.
12. The entire episode lasted around 30 minutes.
13. The Applicant has confirmed in his 3rd affirmation (at paragraph 29) that his purpose for attending the Ceremony was to “raise high the hand gesture of ‘universal nomination’ silently during national anthem” and that “[t]here [was] no purpose for [them] to reach the purported Community Groups Viewing Area at all”.
14. At the hearing on 18 January 2017, I was informed by Mr Jeffrey Tam (appearing for the Applicant) and Mr Victor Dawes SC (appearing, together with Mr Anthony Chan, for the Director) that there was one factual matter which the parties could not reach agreement on, namely, whether the force used by the HAD staff and security personnel in trying to remove the Applicant from the Community Groups Viewing Area and to bring him to the Public Viewing Area was “reasonable”. For the purpose of resolving that issue, I was invited to view two video clips of the incident recorded by United Social Press (as contained in a DVD disc produced as an exhibit to the Applicant’s 2nd affirmation) and formed my own conclusion based on those video clips. This I have done. I shall come back to the issue of whether the force used was reasonable later in this judgment.
GROUNDS OF JUDICIAL REVIEW
15. As can be seen from the draft Amended Form 86, four grounds are advanced in support of the present application for judicial review, namely:-
(1) The Decision did not satisfy the “prescribed by law” requirement under Article 39(2) of the Basic Law (“BL”).
(2) The Decision violated the Applicant’s right to the freedom of the person as guaranteed by BL 28.
(3) The Decision violated the Applicant’s rights to the freedom of expression, peaceful assembly and demonstration guaranteed by (i) BL 27, (ii) Article 16 of the Hong Kong Bill of Rights (“BOR”)/Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), and (iii) BOR 17/ICCPR 21.
(4) The Decision was Wednesbury unreasonable. As indicated in paragraph 63 of the skeleton submissions of Mr Tam dated 9 January 2017, this ground is no longer relied upon by the Applicant in the present application.
16. There are, as I see it, effectively only two grounds of review. This is because the first ground, which is based on BL 39(2), does not give rise to any independent ground of review. BL 39(2) states as follows:-
“The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law…”
17. It is clear that BL 39(2) does not confer any substantive right or freedom on Hong Kong residents. Rather, it provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless such restriction satisfies the “prescribed by law” requirement. In other words, before BL 39(2) can have application in any given case, one must first identify some particular right or freedom which has been, or is sought to be, restricted.
18. Accordingly, the two questions which require determination in this judgment are:-
(1) whether there was violation of the Applicant’s right to the freedom of the person; and
(2) whether there was violation of the Applicant’s rights to the freedom of expression, peaceful assembly and demonstration.
THE DIRECTOR WAS ENTITLED AT COMMON LAW TO USE REASONABLE FORCE TO REMOVE THE APPLICANT FROM THE COMMUNITY GROUPS VIEWING AREA
19. As explained by Mr Wong Kiu Fong, Chief Liaison Officer in the Special Duties Team of the HAD, the Venue was divided into four separate viewing areas:
(1) The “Invited Guests Area” was a restricted-access seating area for guests with prior invitations only.
(2) The “Uniformed Groups Area” was a restricted-access standing zone for invited members of 11 uniformed groups subsidized by the Home Affairs Bureau as well as members of the Auxiliary Medical Services and the Civil Aid Services.
(3) The “Community Groups Viewing Area” was also a restricted-access standing zone for community groups invited by the District Offices. A total of 800 guests, drawn from schools, women associations and elderly service centres, were invited.
(4) The “Public Viewing Area” was a standing zone for members of the general public who had not received any prior invitations but who wished to attend the Ceremony. The area had a capacity for 1,000 people.
20. The four viewing areas were distinct and separated from one another. In particular, the routes leading to the Community Groups Viewing Area and the Public Viewing Area were different and separated by mill barriers. The Public Viewing Area also had a different entrance point (at the junction of Convention Avenue and Expo Drive East) separate from that leading to the Community Groups Viewing Area.
21. Irrespective of how the Applicant and Mr Joshua Wong managed to get into the Community Groups Viewing Area in the morning on 1 October 2013 and whether, at the time of entry, they knew they had no right or permission to enter and remain in the Community Groups Viewing Area, it is not in dispute that, shortly before the commencement of the Ceremony: (i) they were told by the HAD staff and security personnel to leave the Community Groups Viewing Area and return to the Public Viewing Area, and (ii) they refused to do so.
22. It is, in my view, clear that the Applicant and Mr Joshua Wong knew, prior to force being used by the HAD staff and security personnel to seek to remove them from the Community Groups Viewing Area, that they had no right or permission to remain in the Community Groups Viewing Area, and they refused to leave the Community Groups Viewing Area voluntarily despite being asked to do so. In short, the Applicant was in the position of a “trespasser”.
...
| 
