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Leung Kwok Hung And Others v Hksar

Judgment Cited authorities 50 Cited in Precedent Map Related
Vincent
Judgment Date08 July 2005
Citation[2005] 3 HKLRD 164; (2005) 8 HKCFAR 229
Judgement NumberFACC2/2005
CourtCourt of Final Appeal (Hong Kong)
Subject MatterFinal Appeal (Criminal)
FACC000001/2005 LEUNG KWOK HUNG AND OTHERS v. HKSAR

Judgment Summary (English Version)

Judgment Summary (Chinese Version)

FACC Nos. 1 & 2 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 1 & 2 OF 2005 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 16 OF 2003)

_____________________

Between:

LEUNG KWOK HUNG

1st Appellant
FUNG KA KEUNG , CHRISTOPHER 2nd Appellant
LO WAI MING

3rd Appellant

and

HONG KONG SPECIAL ADMINISTRATIVE REGION

Respondent

_____________________

Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Dates of Hearing: 3, 5-6 & 10 May 2005

Date of Judgment: 8 July 2005

_____________________

J U D G M E N T

_____________________

Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ:

1. The freedom of peaceful assembly is a fundamental right. It is closely associated with the fundamental right of the freedom of speech. The freedom of speech and the freedom of peaceful assembly are precious and lie at the foundation of a democratic society.

2. These freedoms are of cardinal importance for the stability and progress of society for a number of inter-related reasons. The resolution of conflicts, tensions and problems through open dialogue and debate is of the essence of a democratic society. These freedoms enable such dialogue and debate to take place and ensure their vigour. A democratic society is one where the market place of ideas must thrive. These freedoms enable citizens to voice criticisms, air grievances and seek redress. This is relevant not only to institutions exercising powers of government but also to organizations outside the public sector which in modern times have tremendous influence over the lives of citizens. Minority views may be disagreeable, unpopular, distasteful or even offensive to others. But tolerance is a hallmark of a pluralistic society. Through the exercise of these freedoms minority views can be properly ventilated.

3. A peaceful assembly may consist of a procession, as it did in the present case. A procession is an effective means of communication because it involves an expression of the views of the participants as they move from one place to another. A procession has been aptly called an assembly in motion. The message the participants are seeking to communicate may have a wide exposure. A procession is a potent method of expression and is a common phenomenon in democratic societies including Hong Kong.

4. This appeal concerns a challenge to the constitutionality of the statutory scheme for the regulation of public processions contained in the Public Order Ordinance, Cap. 245 (“the Ordinance”). The focus of the challenge is on the contention that the statutory discretion conferred on the Commissioner of Police (“the Commissioner”) to restrict the right of peaceful assembly for the purpose of “public order (ordre public)” is too wide and uncertain to satisfy the requirements of constitutionality.

The convictions

5. On 25 November 2002, the Chief Magistrate (Mr Patrick Li) convicted the 1st appellant of the offence of holding an unauthorized assembly and the 2nd and 3rd appellants of the offence of assisting the holding of such unauthorized assembly. These were offences under s. 17A(3)(b)(i) of the Ordinance. The offences were in respect of a public procession on 10 February 2002. Each appellant was bound over on his own recognizance for $500 for a period of three months.

The facts

6. The facts can be shortly stated. In the late morning of Sunday 10 February 2002, a number of persons gathered at Chater Garden for a procession to protest against the conviction of an activist for assault and obstruction of a public officer. The 2nd appellant, using a loudhailer, called on the participants to get ready. Police officers were at the scene since there was a demonstration concerning the right of abode at Chater Garden at that time. The 1st appellant, a well known activist, was the person in charge of the procession. A police officer invited him to go through the statutory notification procedure. He refused and was warned by the police officer of the consequences of his failure to comply before the procession started.

7. The procession comprising some 40 people then set off from Chater Garden in the direction of Police Headquarters at Arsenal Street proceeding along Queensway. Ignoring police advice to use the pedestrian pavement, they used the left traffic lane of the road. As the procession proceeded, others joined in so that the number swelled to about 96 persons.

8. On arrival outside Police Headquarters, again ignoring police advice not to use the North Gate where space was limited, the participants proceeded to that Gate. They stayed on the pavement there for about an hour when speeches were made. The procession was at all times peaceful.

Court of Appeal

9. The appellants appealed to the Court of First Instance which directed the appeal to be heard by the Court of Appeal. The Court of Appeal (Ma CJHC and Yeung JA, Stock JA dissenting) upheld the convictions: HKSAR v. Leung Kwok Hung & Others [2004] 3 HKLRD 729.

Leave to Appeal

10. The Appeal Committee granted leave to appeal, certifying the following question of law: Is the scheme which the Ordinance lays down for notification and control of public processions constitutional?

Representation

11. In considering this important appeal, the Court is indebted to Mr Martin Lee SC for the 2nd and 3rd appellants and Mr Gerard McCoy SC for the respondent, the Government, and their respective teams for their research and presentations which were of considerable assistance. The Court also wishes to thank the 1st appellant, who appeared in person, for his written submissions and his measured address.

The Basic Law

12. It is necessary, first, to set out the relevant constitutional provisions. Article 27 of the Basic Law in so far as relevant provides :

“Hong Kong residents shall have freedom of speech …; freedom of association, of procession and of demonstration …”

As has been discussed, the freedom of assembly is closely associated with the freedom of speech. It is also closely related to and indeed overlaps with the freedoms of association, procession and demonstration. The freedom of assembly is of course a right to peaceful assembly. Obviously, the scope of the right does not extend to an assembly which is not peaceful.

13. Article 39 of the Basic Law in so far as relevant 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. In accordance with Article 39, the Hong Kong Bill of Rights Ordinance Cap.383 (“BORO”) incorporates the provisions of the International Covenant on Civil and Political Rights (“the ICCPR”) as applied to Hong Kong. However, it should be noted that although Article 20 of the ICCPR has been applied to Hong Kong, it has not been incorporated into BORO. Article 20 provides :

“1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

BORO

15. Article 17 of BORO which corresponds to Article 21 of the ICCPR guarantees the right of peaceful assembly as follows :

“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.”

The approach

16. As has been emphasized at the outset of this judgment, the freedom of peaceful assembly is a fundamental constitutional right. It is well established in our jurisprudence that the courts must give such a fundamental right a generous interpretation so as to give individuals its full measure. Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 at 28-9. On the other hand, restrictions on such a fundamental right must be narrowly interpreted. Gurung Kesh Bahadur v. Director of Immigration (2002) 5 HKCFAR 480 at para.24. Plainly, the burden is on the Government to justify any restriction. This approach to constitutional review involving fundamental rights, which has been adopted by the Court, is consistent with that followed in many jurisdictions. Needless to say, in a society governed by the rule of law, the courts must be vigilant in the protection of fundamental rights and must rigorously examine any restriction that may be placed on them.

The constitutional requirements for restriction

17. The exercise of the right of peaceful assembly, whether under the Basic Law or under BORO, may be subject to restrictions provided two requirements are satisfied :

(1) The restriction must be prescribed by law (“the ‘prescribed by law’ requirement”).

(2) The restriction must be 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 (“the necessity requirement”). It will be convenient to refer to the specified purposes as “the legitimate purposes”.

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