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Leung Kwok Hung v Secretary For Justice And Another

Judgment Cited authorities 44 Cited in Precedent Map Related
Vincent
Judgment Date18 November 2019
Neutral Citation[2019] HKCFI 2820
Judgement NumberHCAL2949/2019
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL2945A/2019 KWOK WING HANG AND OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER

HCAL 2945/2019

[2019] HKCFI 2820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2945 OF 2019

____________

IN THE MATTER of the Emergency Regulations Ordinance, Cap 241 and the Prohibition on Face Covering Regulation, Cap 241K

and
IN THE MATTER of Articles 17, 27, 28, 33, 39, 48, 56, 62, 66 and 73 of the Hong Kong Basic Law, and of section 5 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Articles 5, 14, 16 and 17 of the Hong Kong Bill of Rights

____________

BETWEEN
KWOK WING HANG 1st Applicant
CHEUNG CHIU HUNG 2nd Applicant
TO KUN SUN JAMES 3rd Applicant
LEUNG YIU CHUNG 4th Applicant
JOSEPH LEE KOK LONG 5th Applicant
MO, MAN CHING CLAUDIA 6th Applicant
WU CHI WAI 7th Applicant
CHAN CHI-CHUEN RAYMOND 8th Applicant
LEUNG KAI CHEONG KENNETH 9th Applicant
KWOK KA-KI 10th Applicant
WONG PIK WAN 11th Applicant
IP KIN-YUEN 12th Applicant
YEUNG ALVIN NGOK KIU 13th Applicant
ANDREW WAN SIU KIN 14th Applicant
CHU HOI DICK EDDIE 15th Applicant
LAM CHEUK-TING 16th Applicant
SHIU KA CHUN 17th Applicant
TANYA CHAN 18th Applicant
HUI CHI FUNG 19th Applicant
KWONG CHUN-YU 20th Applicant
TAM MAN HO JEREMY JANSEN 21st Applicant
FAN, GARY KWOK WAI 22nd Applicant
AU NOK HIN 23rd Applicant
CHARLES PETER MOK 24th Applicant

and
CHIEF EXECUTIVE IN COUNCIL Putative 1st Respondent
SECRETARY FOR JUSTICE Putative 2nd Respondent

____________

HCAL 2949/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2949 OF 2019

____________

IN THE MATTER of the Emergency Regulations Ordinance, Cap 241
and
IN THE MATTER of the Prohibition on Face Covering Regulation, Cap 241K

____________

BETWEEN
LEUNG KWOK HUNG (梁國雄) Applicant

and
SECRETARY FOR JUSTICE 1st Putative Respondent
CHIEF EXECUTIVE IN COUNCIL 2nd Putative Respondent

____________

(Heard together)

Before: Hon G Lam and Chow JJ in Court
Dates of Hearing: 31 October and 1 November 2019
Date of Judgment: 18 November 2019

__________________

J U D G M E N T

__________________

Table of contents
Paragraphs
A. Background
 1
B. The Applications and Grounds for Judicial Review
 10
C. The Emergency Regulations Ordinance
 14
D. The Prohibition on Face Covering Regulation
 21
E. Ground 1 — the delegation of legislative power ground
 35
(1) The parties’ contentions
 35
(2) Provisions of the Basic Law
 38
(3) The powers of the LegCo and the CEIC
 48
(4) Nature of the ERO and regulations made thereunder
 53
(5) The two Full Court’s decisions and the theme of continuity
 82
(6) Art 160 of the Basic Law
 94
(7) Arts 18(4) and 72(5) of the Basic Law
 95
(8) Conclusion 97
F. Ground 2 — the implied repeal ground
 98
G. Ground 3 — the prescribed by law ground
 110
H. Ground 4 — the principle of legality ground
 121
I. Ground 5A — the section 3 proportionality ground
 126
(1) The rights engaged
126
(2) Step (1): legitimate aims
130
(3) Step (2): rational connection
133
(4) Steps (3) and (4): no more than reasonably necessary and reasonable balance.
147
(a) Section 3(1)(a) of the PFCR
149
(b) Section 3(1)(b), (c) and (d) of the PFCR
152
(5) Conclusion
168
J. Ground 5B — the section 5 proportionality ground
169
(1) The rights engaged
169
(2) Step (1): legitimate aim
174
(3) Step (2): rational connection
180
(4) Steps (3) and (4): no more than reasonably necessary and reasonable balance.
185
(5) Conclusion
191
K. Conclusion and Disposition 193

The Court:

A. Background

1. These proceedings raise questions of the constitutionality and legality of the Emergency Regulations Ordinance (Cap 241) (“ERO”) and the Prohibition on Face Covering Regulation (Cap 241K) (“PFCR”) made thereunder.

2. The ERO is a law of some antiquity, dating back to 1922, but the PFCR is a very recent creature, made by the Chief Executive in Council (“CEIC”) on 4 October 2019 following months of protests and civil unrest and against the background of scenes of escalating violence and danger on the streets of Hong Kong not seen in half a century. The protests began in opposition to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“Bill”), which was proposed for the purpose of amending the Fugitive Offenders Ordinance (Cap 503) as well as the Mutual Legal Assistance on Criminal Matters Ordinance (Cap 525). The unrest has however continued notwithstanding the Government’s decision in June 2019 to suspend the legislative process for the Bill, the acknowledgement since 9 July that the Bill was “dead”, the announcement on 4 September that the Bill would be formally withdrawn, and the actual withdrawal of the Bill in the Legislative Council of Hong Kong (“LegCo”) on 16 October.

3. From 9 June to 4 October 2019, according to the Government’s records, over 400 “public order events” (referring to public assemblies or processions) arising out of the Bill and other matters had been held, with a significant number of them ending up in outbreaks of violence.

4. The degree of violence had escalated and, in particular, on 29 September and 1 October, gatherings took place in many districts in which certain protesters blocked major thoroughfares, vandalised Mass Transit Railway stations and facilities, government offices and selected shops, and hurled petrol bombs at police officers, vehicles and police stations.

5. The use of facial covering was not prohibited in Hong Kong before the PFCR. Having regard to the widespread and escalating danger posed by the situation, the Security Bureau recommended to the CEIC that there was an urgent need to introduce the PFCR to facilitate police investigation and to serve as a deterrent against the violent and illegal acts of masked perpetrators.

6. On 4 October 2019, the CEIC, at a special meeting of the Executive Council, formed the view that the violence and rampage had placed Hong Kong in a state of public danger and that it was necessary in the public interest for the PFCR to be made with a view to restoring law, order and public peace. Accordingly, the PFCR was made on that day pursuant to the ERO, was gazetted on the same day,[1] and came into operation about nine hours later at midnight on 5 October 2019.

7. Also on 4 October 2019, the Chief Executive, the Secretary for Justice and the Secretary for Security spoke at a press conference to explain the Government’s decision and the operation of the PFCR. The Government made clear that the power under the ERO was being invoked on the “public danger” ground only, not the “emergency” ground and that Hong Kong was not being proclaimed to be in a state of emergency.

8. The PFCR has led to a number of applications to the court for leave to apply for judicial review filed between 4 and 10 October 2019.

9. On 11 October 2019, the PFCR was considered by the House Committee of the LegCo and a subcommittee on the PFCR was appointed. At the LegCo meeting of 16 October 2019, the PFCR was laid on the table of the LegCo.

B. The Applications and Grounds for Judicial Review

10. The application in HCAL 2945/2019 (“HCAL 2945”) is one made by 24 Members of the LegCo, first lodged in draft on 5 October. The putative respondents are the CEIC and Secretary for Justice.[2] On 6 October, directions were given for an early “rolled‑up” hearing[3] of that application for leave and (if leave be granted) the judicial review itself. The application in HCAL 2949/2019 (“HCAL 2949”), filed on 8 October, is an application made by Mr Leung Kwok Hung, a former LegCo Member, with the same putative respondents. On 11 October, directions were given for a rolled‑up hearing of his application (but limited to two of the grounds thereof [4]) at the same time as HCAL 2945. The conjoined hearing of these two matters took place before us on 31 October and 1 November. We shall refer to the putative respondents below simply as the “respondents” or “Government”. Four recent applications by other applicants relating to the ERO and PFCR have been directed to await the outcome of these proceedings.[5]

11. In summary, the grounds that have been put forward[6] as the basis for judicial review and argued at the hearing may be broadly identified as follows:

(1) Ground 1 — The ERO is unconstitutional because it amounts to an impermissible grant or delegation of general legislative power by the legislature to the CEIC and contravenes the constitutional framework under the Basic Law. We shall refer to this as the “delegation of legislative power ground”.

(2) Ground 2 — The ERO was impliedly repealed in 1991 by s 3(2) of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”) either entirely or to the extent it is inconsistent with s 5 of that latter Ordinance; alternatively, it was impliedly repealed in 1997 by Art 4 of the ICCPR as applied through Art 39 of the Basic Law. We shall refer to this as the “implied repeal ground”.

(3) Ground 3 — The ERO, to the extent that...

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