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Emergency Ordinance and Prohibition of Face Covering Regulation subject to Judicial Review? –

KWOK WING HANG AND OTHERS.VS.CHIEF EXECUTIVE IN COUNCIL AND ANOTHER.,INSTANCE, CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2945 OF 2019. – 18 November 2019.

The bench encompassing Judge Godfrey Lam and Judge Anderson Chow heard the matter on Emergency Regulations Ordinance, Cap 241, the Prohibition on Face Covering Regulation, Cap 241K, 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 and collectively pronounced the judgment that ordered for convening a further hearing for the parties to make submissions on the appropriate relief and costs.

The application in HCAL 2945/2019 is one made by 24 Members of the LegCo filed on October 5. The application in HCAL 2949/2019 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 and on 31 October, a conjoined hearing of these two matters took place before the Hon’ble  High Court Of The Hong Kong Special Administrative Region in the Court Of  First Instance.

Background of the case: The issue in the instant case is about the constitutionality and legality of the Emergency Regulations Ordinance, Cap 241 dating back to 1992 and the Prohibition on Face Covering Regulation, Cap 241K which is a pretty recent Regulation made by the Chief Executive in Council on 4 October 2019. The protest by the civilians against the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 initiated all-embracing violence and danger on the streets of Hong Kong. It did not stop even when the Bill was withdrawn by the Government in the Legislative Council of Hong Kong on 16 October. According to Government’s record, there were over 400 public order events that ended up in outbreaks of violence through blocking major thoroughfares, vandalizing Mass Transit Railway stations and facilities, government offices and selected shops, and hurling petrol bombs at police officers, vehicles and police stations. Having regard to this situation, the Security Bureau recommended to the Chief Executive in Council that there was an urgent need to introduce the Prohibition on Face Covering Regulation to facilitate police investigation and to deter violence and illegal acts of masked perpetrators. To restore law, order and public peace, the Chief Executive in Council executed the Emergency Regulations Ordinance, Cap 241 and the Prohibition on Face Covering Regulation, Cap 241K. This further aggravated the situation and led to the filing of a petition for Judicial Review to look into the matters of constitutionality and legality of the abovementioned Ordinance and Regulation, respectively. The Appellant’s argued by putting forward four grounds and considered those to be the basis for Judicial Review.

The four grounds are:

  1. Delegation of legislative power ground

  2. Implied repeal ground

  3. Prescribed by law ground

  4. Principle of legality ground: Ground 5A. section 3 proportionality ground; Ground 5B. section 5 proportionality ground.

The gist of the argument concerning each of the above-mentioned Grounds will substantiate the reasons for convening the meeting to a future date. Ms. Gladys Li, SC  and Mr. Johannes Chan, SC argued on behalf of the applicant’s by addressing Ground 1 and Grounds 2 to 5B respectively in HCAL 2945; Mr. Hectar Pun, SC addressed Grounds 3 and 5B on behalf of the applicant in HCAL 2949; and Mr. Benjamin Yu, SC argued on behalf of the respondents on all the grounds.

The argument put forward by the applicants regarding the first ground was that they focused o the powers and functions of the Legislative council. They believed that other bodies were entitled to legislate but they had power only to make subordinate legislation. The crux of the argument is highlighted in quotes, ” the ERO is so wide in its scope, the conferment of powers so complete, its conditions for invocation so uncertain and subjective, the regulations made there under-invested with such primacy, and the control by the LegCo so precarious, that we believe it is not compatible with the constitutional order laid down by the Basic Law having regard in particular to Arts 2, 8,17(2), 18, 48, 56, 62(5), 66 and 73(1) of the Basic Law.” HKSAR v Lam Kwong Wai and Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise were taken into consideration for remedial interpretation. The respondents rebutted by stating the decisions taken up by the Court in various other cases. Mr. Yu placed reliance on that and the “theme of continuity”. They come up with a defense that The ERO was enacted at a time when the LegCo consisted of the Governor and it was presided by him. Even by the 1950s, at the time when To Lam Sin and Li Bun were decided, there were members appointed by none other than the Governor. This had enabled a submission to be made in Ping Shek, that the Governor in Council was a body that “had, through its members, a controlling voice in the Legislature itself”.

“The respondents have stressed that the ERO is intended to deal with occasions of emergency or public danger and that regulations made there under are intended to be temporary measures necessitated by the exigencies of the situation. There may be overlap in the Executive Council in that Members of the LegCo may be appointed to serve on the Executive Council (Art 55), but it should be noted that under the Basic Law (Art 56), the Chief executive need only consult the Executive Council and is not obliged to accept its majority opinion provided the specific reasons are put on record.”

The court rejected the arguments put forward concerning ground two. The applicant’s approached by stating that derogation from the Bill of Rights can be made possible in exceptional circumstances like the case of national emergency and it can be done in those times only by an official proclamation of public emergency. They contended that section 2(1) of the ERO, which empowers the CEIC to make was inconsistent with section 5 of the HKBORO and, therefore, it was to be treated as having been automatically repealed. The Court concurred upon a phrase said in Syracusa Principles on the Limitation and Derogation Provisions in the ICCPR, at §39 to determine “The exceptional situation”. It also acknowledged the acceptance of the respondents and said that ERO was empowered to take actions that have an effect of restricting the rights protected by the Bill of Rights, provided the restriction was prescribed by law and compliant with the principle of proportionality.

Ground three which talks about “prescribed by law” aspect was also rejected by the Court. The applicant’s insisted that ERO violates the principle of legal certainty mandated by Art 39 of the Basic Law. The Court did not accept it for the reason that Legal certainty is not a notion existing in the abstract and a vacuum. The applicant’s relied on the cases of Leung Kwok Hung & Another v Chief Executive of the Hong Kong SAR and Dawood & Anor v Minister of Home Affairs & Others and it was readily distinguished by the Court. Furthermore, it emphasized that for the requirement of “prescribed by law”, the law does not necessarily mean only statute law. And the following was held:

“The ERO, as the source of power for making regulations, cannot be attacked on its own under the “prescribed by law” requirement. This is not to say that it can never be a matter of concern that executive authorities are given ill-defined powers to make laws that may restrict fundamental rights, but this seems to us to raise the analytically separate and different point in relation to delegation of legislative power, which we have dealt with under Ground 1 above.”

The fourth ground impugns the PFCR as being ultra vires the ERO. As to whether certain legislation is intended to override or constrain fundamental rights, the court acknowledged the principle of legality, supported by overseas authorities such as R v Secretary of state for the Home Department, and Coco v The Queen and A v Commissioner of Independent Commission. The applicant’s contended that Section 2(1) should not be construed to confer power to legislate wider than in those areas. The legislature must have had the restriction of the freedom of individuals in mind when enacting the ERO was the contention of the respondents.  The Court held,

“A tension can be detected between Ground 1 and Ground 4 as advanced by the applicants. Under Ground 1, the applicants submit that Section 2(1) of the ERO is of the widest scope, essentially conferring an unrestricted and unfettered legislative power. Ground 4, as we see it, is essentially an alternative ground, contending instead that Section 2(1) is to be read as not authorizing any regulation to be made that would restrict fundamental rights. Having upheld the applicant’s contention on Ground 1, we don’t need to deal with Ground 4.”

The Government relied on two important principles: 1. Legitimate aims;  2. Rational connection.  It produced an affidavit by Dr. Tsui Pui Wing Ephraem, a clinical psychologist, dated 23 October 2019 to explain how the wearing of facial covering affects a person’s psychology and emboldens the wearer to commit acts which he or she might otherwise not commit. Thereby, it tried establishing a rational nexus between the regulation and its object. The test here was “reasonable necessity”. The question is whether there is “a reasonable relationship of proportionality between the means employed and the aim sought to be realized as imbibed in James v the United Kingdom and whether some less onerous alternative would have been available without unreasonably impairing the objective as stated in the case, Lord Carlile of Berriew V Secretary of State for the Home Department.

For the above reasons, the Court concluded by quoting, “we consider that while the measures introduced by Section 3(1) of the PFCR are rationally connected to the pursuit of legitimate societal aims, sub-paragraphs (b), (c) and (d) of Section 3(1) go beyond what is reasonably necessary and therefore do not pass the proportionality test.”

It is quite clear that Section 5 engages the freedom of the person or right to liberty protected by Art 28 of the Basic Law and Art 5 of the Bill of Rights. The applicant’s brought certain other protected rights like the right to privacy (Art 14 of the Bill of Rights), the freedom of expression (Art 27 of the Basic Law and Art 16 of the Bill of Rights), and the freedom of movement (Art 31 of the Basic Law and Art 8 of the Bill of Rights). None of these rights are absolute and they are subjected to several restrictions within their ambit of freedom.

Per contra, the Government believes that the aim of Section 5 of the PFCR is to assist in law enforcement, investigation, and prosecution which itself is a legitimate aim. However, Mr. Pun argued that the Government’s aim of enacting Section 5 was merely to “verify a person’s identity”, which cannot by itself be legitimate. The court finds it to be a distorted way of reading the LegCo Brief. Mr. Yu argued that the measure adopted by Section 5 of the PFCR is rationally connected to the legitimate aim of law enforcement, investigation, and prosecution of violent protesters. The Court accepted that the measure adopted under Section 5 of the PFCR is rationally connected to the legitimate aim identified by the Government. But it concluded by stating, “Section 5 represents a more serious inroad into protected rights than is reasonably necessary, and therefore fails the proportionality test.”

This case considered the Jurisprudence of the World to conclude. They were also conscious of their constitution and fostered it from being diluted by the legal principles of other countries. The facial covering was prohibited but there were exceptions enlisted for the same.  The exceptions were professional or employment reasons, religious reasons, and preexisting medical or health reasons. However, the scope of reasonable excuse was not exhaustively defined and there was an evidential burden placed on the accused. The applicants in HCAL 2945 contended that, by necessary implication, police officers already had such power of investigating people and the imposition of this regulation was arbitrary. There’s a point to be noted here, there are instances where people have wholly legitimate reasons to wear facial covering at peaceful assemblies. Traditionally many assemblies, meetings or processions for different causes, such as LGBT, labor or migrant rights had taken place in different parts of Hong Kong throughout the year, and it went peacefully. It cannot be disputed that participants in such gatherings may have legitimate reasons for not wishing to be identified, or seen to be supporting such causes. Unarguably, when there’s a question of public emergency then nothing can stand in the way of blanketing the safety of the civilians.

Jumanah Kader

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