Chapter 3  
Case of Public Interest or Concern

Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (FACV 12 of 2016)

In July 2009, a political party raised the proposal that one member from each of the five geographical constituencies within the Legislative Council should resign in order to trigger by-elections in such constituencies in which the five resigning members would stand. The intention was to trigger what is called a de facto referendum in relation to the political manifesto pressing for universal suffrage and the abolition of functional constituencies.

On 25 January 2010, one member from each of the five constituencies did resign, triggering by-elections in the relevant constituencies. The five resigning members all took part and were re-elected in the by-elections. Voter turnout was, however, low and other major political parties did not take part in the elections. The cost of the by-elections was about $126 million.

What followed was intense debate and discussion within the community as to the appropriateness of members resigning from the Legislative Council in order to trigger by-elections in which the resigning members intended to stand.

Subsequently, the Government introduced the Legislative Council (Amendment) Bill 2012. The Bill was eventually passed in the Legislative Council on 1 June 2012 and s 39(2A) of the Legislative Council Ordinance came into force.

Section 39(2A) bars a legislator who resigns from the Legislative Council from standing in the by-election within 6 months of resignation.

Consequent on the passing of s 39(2A), the Applicant applied for judicial review on the basis that the provision was unconstitutional. The application for judicial review was dismissed by the Court of First Instance and the Applicant appealed to the Court of Appeal. Although the Court of Appeal dismissed the Applicant’s appeal, Hon Poon JA stated that it does not mean that the court will abdicate its constitutional role in judicially reviewing a statute passed by the legislature whenever questions of political nature are involved. The court will ensure that the legislature acts lawfully within its sphere provided that there are justifiable grounds to interfere as a matter of law.

With the assistance of legal aid, the Applicant took his case to the Court of Final Appeal (“CFA”) and obtained leave to appeal on the following question of great general or public importance:

 

“Is section 39(2A) of the Legislative Council Ordinance inconsistent with Article 26 of the Basic Law of the Hong Kong Special Administrative Region and/or Article 21 of the Hong Kong Bill of Rights, and therefore unconstitutional?”

  

In the unanimous decision of CFA, it was affirmed that the determination of constitutionality is a question of law for the courts to determine. The general approach in cases involving challenges to legislation or other measures said to have contravened constitutionally guaranteed rights is set out in the recent CFA decision in Hysan Development Co. Ltd. v Town Planning Board:

 

“This Court has recognised that certain constitutionally guaranteed rights, such as the prohibition against torture and cruel, inhuman or degrading treatment or punishment, are absolute and that in such cases, there is no room for any proportionality analysis.

Where the guaranteed right is not absolute, the law may validly create restrictions limiting such rights. It is for the Court to determine the permissible extent of those restrictions and it does so by a process referred to as a proportionality analysis.”

  

The proportionality analysis involves four steps: (i) whether the intrusive measure pursues a legitimate aim; (ii) if so, whether it is rationally connected with advancing that aim; (iii) whether the measure is no more than necessary for that purpose; and (iv) whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.

There are three aspects to consider:
(i)   the nature of the right in question and the degree to which it has been encroached on;
(ii)   the identification of the relevant decision-maker (in the case of legislation, this will be the Legislature); and
(iii)   relevance of the margin of appreciation.

The term “margin of appreciation” refers to that area of discretion which the Court will accord to a decision‑maker, or, in the case of legislation, to the legislature. It reflects the separate constitutional and institutional responsibilities of the judiciary and other organs of government.

CFA agreed with the Respondent’s proposition that political decisions or legislative provisions reflecting political judgments are often precisely those areas where the courts are likely to afford a large margin of appreciation. Where electoral laws involve political or policy considerations, a wider margin of appreciation ought to be accorded, as the Courts are generally not equipped to determine political questions.

It was unanimously held by CFA that section 39(2A) fell within the range of reasonable options open to the Legislature to adopt in order to deal with the perceived mischief of the undermining of the electoral system by legislators resigning in order to cause a by-election in which they would stand. The encroachment on the constitutional right to stand for election was a relatively small one, as it only applied to by-elections and the bar was solely against the resigning member who was perfectly entitled to stay in office as a legislator if he or she had wanted to. Even then, the bar was only for six months.

Thus, CFA found section 39(2A) to be proportionate and constitutionally valid. The appeal was dismissed accordingly.

 

HKSAR v
FONG KWOK SHAN CHRISTINE
(FACC No. 2 of 2017)

This legally-aided Court of Final Appeal (“CFA”) case concerned the challenge of the validity of two Administrative Instructions regulating admittance to and conduct within the Legislative Council (“LegCo”) precincts on the basis that they infringed the right to freedom of expression.

The Applicant in this case had strongly opposed a project for extending the South-East New Territories landfill. She and several others put on demonstrations in the public gallery at two meetings of the LegCo’s Public Works Subcommittee when the project was discussed.

On the first occasion, she removed her jacket so that the characters 保衛將軍澳 (“Defend Tseung Kwan O”) were displayed on the T-shirt that she was wearing. She also handed to another protester a paper poster depicting a Nazi Swastika with the characters 毒氣集中營 – 堆填區 (“Poison Gas Concentration Camp – Landfill”) which the other protester displayed in the public gallery above the conference room. This led to a commotion as security guards sought to seize the sign, leading to one guard sustaining bruises on her left wrist. The incident caused the Subcommittee’s meeting to be prematurely adjourned.

On the second occasion, the Applicant and several others in the public gallery shouted slogans and were warned by the Subcommittee’s Chairman that they would be driven out if they did not stop. As they ignored the warnings and linked arms to resist ejectment, the meeting was adjourned and reconvened in a different conference room about an hour later with the public excluded from attendance.

The Applicant was later convicted of contravening section 12(1) of the Administrative Instructions for Regulating Admittance and Conduct of Person, which provides that “No person shall, in a press or public gallery, display any sign, message or banner”. She was also convicted of contravening section 11 which requires persons entering or within the precincts of LegCo to behave in an orderly manner.

Leave was granted by the Appeal Committee of the CFA on whether sections 11 and 12(1) were inconsistent with the principle of freedom of expression protected by Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance Cap. 383 (“BOR”) and so rendered them unconstitutional.

Upon hearing arguments submitted by the parties, CFA rejected the Applicant’s argument that section 11 is invalid because it lacks legal certainty. When properly interpreted in the light of its context and purpose, it makes it clear what precisely a person must avoid doing. Section 11 does not simply penalise a failure to “behave in an orderly manner” without more. The orderly behaviour is demanded only of persons who enter or are within the precincts of the LegCo complex. The section also requires compliance with any directions given by an officer of the LegCo “for the purpose of keeping order”. The section is therefore self-evidently concerned with keeping order in those precincts.

Secondly, CFA rejected the Applicant’s argument that the words of section 12 amounted to a blanket prohibition on the display of any sign, message or banner and thus were far too broad a restriction on the right to free expression. When properly interpreted, the section was aimed only at displays which entail the risk of disorder in public galleries and which may disturb LegCo sittings and the rights of others observing the proceedings. CFA held that the restriction on the right to freedom of expression imposed by section 12 is proportionate and constitutionally valid.

Although CFA rejected the Applicant’s arguments, it also rejected the Respondent’s argument that the Applicant’s right to freedom of expression was excluded by virtue of LegCo having the right under the law of property to deny admittance to members of the public. CFA clarified that the proper approach is to focus on the guaranteed right instead of on property interests, and to examine whether the restrictions imposed on its exercise is constitutionally valid under Article 16 of BOR and by applying the principle of proportionality.

Further, the Respondent’s argument that the Court should not intervene with the internal processes of the LegCo was also rejected by CFA. CFA held that the principle did not apply because the regulation of the admittance and conduct of strangers who wish to enter the LegCo complex falls outside the category of managing LegCo’s internal processes. In any case, the non-intervention principle would have to give way as the Court was duty-bound to examine the validity of sections 11 and 12(1) in so far as they impose restrictions on the exercise of a constitutional right.

As the Applicant’s arguments were rejected by CFA, the appeal was therefore dismissed.
 
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