Constitutional Law II Comprehensive Notes
Table of Contents
Constitutional Law II Comprehensive Notes 课堂笔记第二部分 .............................................................. 1
Seminar 7: Introduction to Constitutional Rights and Restrictions ...................................................................... 2
Readings: .................................................................................................................................................................................... 2
1.
Gurung Kesh Bahadur v. Director of Immigration, .......................................................................................................... 2
2.
Leung Kwok Hung and Others v. Hong Kong SAR, ........................................................................................................... 5
3.
Hysan Development v Town Planning Board ................................................................................................................... 7
4.
Simon Young, “Restricting Basic Rights in Hong Kong”.................................................................................................. 10
Discussion Questions: .............................................................................................................................................................. 12
Seminar 8: Assembly Freedom ........................................................................................................................ 13
Readings: .................................................................................................................................................................................. 13
3 categories of Human Rights: ................................................................................................................................................. 13
Yeung May Wan and Others v. Hong Kong SAR ....................................................................................................................... 14
Leung Kwok Hung and Others v. Hong Kong SAR ..................................................................................................................... 15
order public v. public order: ..................................................................................................................................................... 15
Cheung Tak Wing v Director of Administration ........................................................................................................................ 17
Kwok Wing Hang v Chief Executive in Council [2020 ............................................................................................................... 20
Yap Po Jen, Chapter 23 ............................................................................................................................................................. 21
Discussion Questions................................................................................................................................................................ 22
Seminar 9: Expression Freedom ...................................................................................................................... 23
Readings: .................................................................................................................................................................................. 23
Ch.21 of Law of the HK Constitution ........................................................................................................................................ 23
Hong Kong SAR v. Ng Kung Siu ................................................................................................................................................. 24
HKSAR v. Koo Sze Yiu ................................................................................................................................................................ 25
HKSAR v Christine Fong ............................................................................................................................................................ 26
Secretary of Justice v Ocean Technology ................................................................................................................................. 28
Chee Fei Ming v Director of Food and Environmental Hygiene ............................................................................................... 28
Discussion Questions: .............................................................................................................................................................. 33
Seminar 10: Right of Equality .......................................................................................................................... 36
Readings: .................................................................................................................................................................................. 36
Ch.28: Right to Equality and Non-Discrimination ..................................................................................................................... 36
W v Registrar of Marriage ........................................................................................................................................................ 38
Leung Chun Kwong v Secretary for Civil Service ...................................................................................................................... 43
MK ............................................................................................................................................................................................ 43
Ng Hon Lam (check DOJ) .......................................................................................................................................................... 44
Sham Tsz Kit 2022 check DOJ ................................................................................................................................................... 45
Discussion Questions: .............................................................................................................................................................. 45
Seminar 11: Exclusive BL rights ....................................................................................................................... 48
Readings: .................................................................................................................................................................................. 48
Catholic Diocese of Hong Kong v Secretary for Justice ............................................................................................................ 48
Kong Yunming v Director of Social Welfare 2013 .................................................................................................................... 49
Discussion Questions: .............................................................................................................................................................. 51
1
Seminar 7: Introduction to Constitutional Rights and Restrictions
BORO: certain rights overlapping in BL/BORO, eg, free speech, right exclusive in BORO/BL: right of social welfare…
rights protected in BL but the right is broader in the BORO (eg, right of privacy in BL: only privacy of one’s
communication (text messages…) but in BORO: right is broader as applies to general privacy and bodiliy autonomy.
What’s the difference?
No right is absolute  subject to restriction  what is the test the court use?  proportionality test. The test has
evolved over years. But it’s not mentioned in BL/BORO, it’s judge-made.
NSL? NSL apply parallel to BL (still unsettled debate)  is NSL subject to BL? or parallel? Or is NSL on the same
constitutional level as BL? in Substance, NSL will not be struck out.
No argument in Court that NSL is constitutional.
Ng ka ling 1 and 2: unusual: even strike down NPCSC? Ng Ka Ling gives the court some leeway to trunk BL? in theory
yes (precedential hook)
Readings:
1. Gurung Kesh Bahadur v. Director of Immigration, (2002) 5 HKCFAR 480 “Test look at the nature”
Case title
Rule


Gurung Kesh Bahadur v. Director of Immigration
Any application of s.11(10) to NPR HK residents would contravene
their rights under BL31 and therefore be unconstitutional and
invalid. But s.11(10) itself not unconstitutional (applicable to
persons who were nont NPR with an unexpired limit of stay).
A generous approach should be adopted to the interpretation of
the rights and freedoms while restrictions to them should be
narrowly interpreted <Na Ka Ling>
BL31, BL39, s.11(10) of Cap 115 (Immigration Ord)
BL31: Hong Kong residents shall have freedom of movement within the
Hong Kong Special Administrative Region and freedom of emigration to
other countries and regions. They shall have freedom to travel and to
enter or leave the Region. Unless restrained by law, holders of valid travel
documents shall be free to leave the Region without special authorization.
BL 39: The provisions of the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural
Rights, and international labour conventions as applied to Hong Kong
shall remain in force and shall be implemented through the laws of the
Hong Kong Special Administrative Region.
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.
# “ICCPR .. as applied in HK” meaning:
1) BoR and any statutes codifying ICCPR
2) ICCPR rights and freedoms that UK initially signed on to, including
reservations
3) ICCPR – impose only min standards, more rights can be developed by
the courts. (ie, should adapt to the changing social circumstances and
develop over time) (weakness: danger of undemocracy?)
2
BL relatively new as a constitution.  must look into the intention of BL
not just the literal interp/originalism. Cuz HK has a newer law, Courts kind
of reluctant to develop judge-made law。
s.11(10) of the Immigration Ordinance: Any permission given to a person
to land ore remain in Hong Kong shall, if in force on the day that person
departs from HK, expire immediately after his departure.
Facts
Issue
Held
Reasoning
P is a Nepalese who was granted a limit of stay in HK until Jan 1999. P left
HK for Nepal in Oct 97, returned in Nov but was refused permission to
land despite his former limit of stay. P was then prosecuted but acquitted
for offences under s.11(10) of Cap 115. DoI made removal order against P.
DoI succeeded in CFI but lost in CA. CA held that DoI’s rejection of
permission to land and the removal order infringed P’s rights under BL31.
DoI then appealed to CFA
Work visa still valid when he left/returned HK: when returned, he was
rejected to enter under s.11 of Cap 115 – once P left HK, his permission to
remain automatically expired.  if that’s the law, you have no right to
travel.
Whether the application of s.11(10) to P, a NPR who travelled outside of
HK within his unexpired period of limit of stay, was inconsistent with his
freedom to travel and enter HK guaranteed by BL31.
Ie, Whether s.11 of Cap 115 is constitutional?
Director’s appeal dismissed.
DoI’s submissions:
 (1) rights in BL31 subject to BL39. BL39(2) sets out 2 requirements,
(i) [prescribed by law] (ii) restriction shall not contravene ICCPR as
applied to HK, (ii) irrelevant in the present case (right to
travel/enter is exclusive BL right not conferred by ICCPR) while
(i) satisfied, since the restriction is imposed by s.11 of the
immigration ordinance, ie, by law.
 (2) proportionality principle shall apply, which gives immigration
officer discretion to consider whether there exists sufficient state
interest that requires the refusal of permission to enter even
though the person concerned was an NPR who would otherwise
be able to return but for s.11(10).
CFA: both submissions rejected:
 BL31, which provides HK residents right to travel and enter,
should be generously interpreted while BL39(2), which considers
restrictions to rights of HK residents, should be narrowly
interpreted. (Ng Ka Ling )
 BL39(2) did not imply that “rights found only in BL might be freely
qualified/limited simply by restrictions which were prescribed by
law” – this is not the intention of BL that rights only found in BL
(exclusive BL rights) can be rejected by domestic legislation and
hence less secure compared to rights in BoR. (§29)
# otherwise, constitutional rights weaker than statutory rights
Under HK law, BORO can be used to strike down legislation.
At this time, proportionality test not invented/used for BL rights in
HK yet (the test has been used for BORO rights before handover)
 today, if looking at law in these cases, you can argue that
proportionality test applicable (case law evolve over time)
3








Further
info/comment

§25: ICCPR as applied to HK as incorporated by BoR only provides
for minimum standards for rights which are internationally
recognized. BL can provide for rights additional to such minimum
standards.
Restriction of rights listed only on BL depends on the subjectmatter and nature of the rights in the issue (481D). This is related
to the proper interpretation of BL and was a matter for the courts
to decide. (§28) # ie, test is to look at the nature/ subject matter
Regarding DoI’s 2nd submission: restriction in the present case is
not “prescribed by law” as defined in BL 39(2) since immigration
officials’ discretion to refuse entry to HK was “based on general
discretionary powers” for immigration control under the
Immigration Ordinance, there’s no suitable statutory scheme for
the purpose of prescribing restrictions on the constitutional
rights of NPR HK residents to travel/enter HK.
Any application of s.11(10) to NPR HK residents would contravene
their rights under BL31 and therefore be unconstitutional and
invalid. (§38)
But s.11(10) itself not unconstitutional (applicable to persons who
were nont NPR with an unexpired limit of stay).
Policy argument:
1. What if NPR citizen left HK for 2 hr golf trip in Shenzhen? 
lose right of entry upon departure §36?
2. §42:ordinance already contains power to curtail period of NPR’s
permanent limit of stay/for his removal and deportation for
immigration violation– ie, no need to read s.11 in such a broad
way that may bring unexpected result to a wide range of
residents.
On Exclusive BL rights – art39(2) has no application since the right
to travel is an exclusive BL right, but note that right to leave HK is
also a BORO right.  but this doesn’t mean that the only
requirement is that the restriction is prescribed by law.  validity
of restriction depends on nature of rights and interpretation of
BL (§28) cuz otherwise, exclusive BL rights would be less secure
than BORO rights (§29).
 In the exam:
1) If you prefer more liberal approach  argue
for proportionality test (extend the test to
other exclusive BL rights
2) If argue for govt/conservative: argue for
nature/subject matter test cuz it’s more
conservative

The reason that CFA reluctant to develop a test of permissible
restriction in this case is because that the purpose of such test is
to strike a balance between individual/govt, but in this case, it’s a
complete restriction on the right. In other words, the right to
travel/enter HK is completely extinguished in this case. Under
such circumstances, there’s no need to come up with an official
test but only needs to refer to the nature/subject-matter of the
rights in the issues.
4
proportionality not found in BL, but judge-made law  法官行使自由裁量权来决定 p test 是否适用, Js
making policy choices, because the constitution is not clear and Js have discretion (Young, “turn on… matter
of the court”)
Oftentimes, also internal dispute in courts, but the right can take shape and evolve in times, in Ng Ka Ling
case, BL is a living instrument, when CFA doesn’t want to develop a right  turn to originalism, otherwise
depends on Court’s discretion.
★3 categories of Human rights:
Right provided by:
1) both Basic Law & BORO; e.g. freedom of speech & assembly; right to equality; right to leave HK (parallel
BL rights)
a. Restrictions on Parallel BL Rights
i. The restriction must be “prescribed by law”
Accessible to the citizen and formulated with sufficient precision.
See Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381
ii. The restriction must be “necessary” in the interests of national security, public order
(ordre public), rights of others etc. .
(read Article 39 of Basic Law with Article 17 of BORO)
Proportionality test.
2) only the Basic Law; e.g. right to travel;
3) only the BORO; e.g. right to a fair hearing by an independent adjudicatory body; general right of privacy
-- overlap and distinct. The question is: how to decide that restriction is justified?
2. Leung Kwok Hung and Others v. Hong Kong SAR, (2005) 8 HKCFAR 229 (excerpts)
Case
Leung Kwok Hung and Others v. Hong Kong SAR
Rule
BL27 or art.17 of BoR, s.17A(3)(b)(i) of the Public Order Ordinance
(Cap 245).
 Cap 245:
s.14(1) conferred on the Commissioner discretion to object
to the public procession being held for national
security/public safety/public order concern
notification requirement
constitutional requirement
Issue
Whether the statutory scheme for regulating public processions was
contrary to the right to freedom of assembly in art.27 of the BL; art.
21 of ICCPR and art.17 of the BoR, which corresponds to art.21 of
ICCPR.
Facts
The focus of the challenge was on the contention that the discretion
for the purpose of ‘public order (ordre public)’ was too wide and
uncertain and so did not come under permissible restrictions
requirements of : (a) ‘prescribed by law’, as per art.39(2) of BL,
art.17 of BoR and art.21 of ICCPR; and (b) “necessity”, as per art. 17
of BoR and art. 21 of ICCPR.
D1 refused to go through the statutory notification procedure under
Cap 245, s.17A (3)(b) (i) despite a warning from the police. S.13A of
Cap 245 provided that the Commissioner of the Police had to be
notified before such procession could take place. Under s.14(1), the
Commissioner then had a discretion to object to the procession if
considering it’s “necessary in the interest of national security or
public safety, public order (ordre public) or the protection of the
rights and freedom of others”
5
Held
Reasoning
Further information
1st appellant was convicted the offence of holding an unauthorized
assembly and 2nd/3rd appellants for assisting the holding of such
unauthorized assembly under s.17A (3)(b)(i) of Cap 245.
Appeal dismissed since the offences arose out of the holding of a
public procession w/o complying w/ the statutory notification
requirement
§1: freedom of peaceful assembly a fundamental constitutional
right  must be given a generous interpretation to give individuals
its full measure and restrictions on it must be narrowly interpreted <
Ng Ka Lin>
§2: positive duty on Govt to take reasonable and appropriate
measures to enable lawful assembly.
§3: “prescribed by law”  legal certainty
§4: “necessity requirement”  proportionality test (exhaustive list
provided by art.21 of ICCPR)
CFA proportionality test §36:
 A) the restriction must be rationally connected with one or
more of the legitimate purposes
 B) the means used to impair the right of peaceful assembly
must be no more than was necessary to accomplish the
legitimate purpose in question
# frame in 2 stage but actually incorporate 3 stages (A
incorporates stage 1&2)
Appellants’ argument: concept of “public order” too wide and
uncertain
CFA: necessary to distinguish b.t. the use of the concept at the
constitutional level and statuary level.
 Constitutional level: BL39 (2) requires restrictions of rights
to comply with provisions of ICCPR (HK),
 Statutory level: Commissioner’s discretion didn’t give
adequate indication of the scope of that power since the
concept was taken from ICCPR which is more executivebased: constitutional norm usually expressed in a relatively
abstract way (§6). Hence the Commissioner’s discretion in
relation to “the purpose of public order” in s.14(1), 14(5),
and 15(2) held unconstitutional. But the court then exercise
remedial interpretation (§8), sever “public order (in the law
and order sense)” from ‘public order (ordre public)”
P30 details on necessity req and proportionality test:
§34: wide use of proportionality test principle across common law
jurisdictions: “ the use of a proportionality principle in examining
whether a restriction of a fundamental right is necessary in
democratic society”
§35: “by applying a proportionality test for considering any
restriction on the right of peaceful assembly, a proper balance is
struck between the interests of society on the one hand and the
individual’s right of peaceful assembly on the other” Ie, the proper
application of such test will better balance the individual/social
interest and conflict.
There must be a clear indication of the limit of governmental right --§35 continued “in formulating the terms of the proportionality test
in the HK context, it is of critical importance to bear in mind that the
legitimate purpose for restriction of this right have been set out in
the relevant constitutional text. It must be emphasized that the
6
legitimate purpose specified in art.21 of the ICCPR are the only
legitimate purposes. This list is exhaustive. There cannot be a
restriction for any other purpose.”
3. Hysan Development v Town Planning Board, (2016) 19 HKCFAR 372
Case
Hysan Development v Town Planning Board
Rule
BL6 and BL105 (私有财产权的保护)
# exclusive BL right (but the test now extends to most parallel BL& BORO
rights using)
 In accordance with law
 Article 6 states: “The Hong Kong Special Administrative Region shall
protect the right of private ownership of property in accordance with
law” [13]
 Article 105 … is in the following terms: “The Hong Kong Special
Administrative Region shall, in accordance with law, protect the right
of individuals and legal persons to the acquisition, use, disposal and
inheritance of property and their right to compensation for lawful
deprivation of their property.” [14]
 “The proposition is therefore that the words “in accordance with
law” limit the protection conferred by Articles 6 and 105 exclusively
to a requirement that property rights be protected by legally certain
and accessible laws.” [20]
Issue
Main issues before CFA:
(i)
Are BL6 and BL105 engaged with landowners complain about
planning restrictions imposed by the TPB on the use of their
land? (1st question)
-- Yes
(ii)
If so, must the restrictions be subjected to a proportionality
analysis? (2nd question)
(iii)
If so, what standards or tests should the Court apply in
conducting a proportionality assessment in a case like the
present? (3rd question)
Fact
Appellant owns properties on various sites in Causeway Bay and Wanchai.
They objected to planning restrictions imposed on their sites under 2 draft
Outline Zoning Plans (OZPs) gazette by the Town Planning Board (TPB). In the
courts below, appellants succeeded in having TPB’s decision quashed but did
not succeed in their claim that the planning restrictions were
disproportionate and thus were unconstitutional infringement of their
property rights inconsistent with BL6 and BL105. Appellants then appealed to
CFA.
Held
Reasoning
1st question: courts below said BL6&105 not engaged. CFA: engaged. CFA:
interference with the owners’ protected rights occurs when the new
restrictions take effect derogating form those rights and thus engaging BL6
and BL105.”
2nd question: CFA: private property rights protected by BL6 and BL 105 not
absolute, Court to decide the extent of restriction by using a proportionality
test.
Govt’s argument: “in accordance w/ law”  only restriction is “in accordance
w/ law”
Court: #§32: considers that the the govt’s claim “involves the unwarranted
insertion of the word ‘only’ before the phrase in question” the phrase shall
be understood as adding another protection of legal certainty, not the only
7
protection. Ie, “in accordance with law” is one restriction, but not necessarily
the only restriction.
§52:
(i)
(ii)
(iii)
(iv)
Whether the intrusive measure pursues a legitimate aim
If so, whether it is rationally connected with advancing that aim
Whether they represent a proportionate means of achieving that
end. (no more than necessary)
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. In
particular, whether pursuit of the societal interest results in an
unaccepted harsh burden of the individual §135. (added esp. for
the present case by CFA) [policy perspective]
“The fourth step therefore requires the Court to examine
the overall impact of the impugned measure and to decide
whether a fair balance has been struck between the general
interest and the individual rights intruded upon, the
requirement of such a fair balance being inherent in the
protection of fundamental rights.” §76
# hysan more progressive cuz in theory allows the court to look at
the harshness of the law ( some scholars argue that this is only
theoretical, not what happened in reality)
# govt’s burden to prove all 4 stages. If any of the 4 failed 
failed to pass proportionality test.
“4th step therefore requires the Court to decide whether the impugned law or
govt decision, despite having satisfied first 3 reqs, operates on particular
individuals with such oppressive unfairness that it can’t be regarded as a
proportionate means of achieving the legitimate aim in question. “
# but stage 4: HK courts don’t really strike down law using stage 4 (if yes, the
law most likely
3rd question:
3.1 : how to apply the 3rd step (no more than necessary)?
1. Margin of discretion accorded to government
2. Reasonable necessity v manifest standard:
“The content and features of the impugned measure, the identity and
constitutional role of its originator and any special competence possessed by
such person, are likely to be highly relevant to deciding how wide the margin
of discretion should be.” [114]
“The location of the standard in the spectrum of reasonableness depends on
many factors relating principally to the significance and degree of
interference with the right; the identity of the decision-maker; and the nature
and features of the encroaching measure relevant to setting the margin of
discretion.” [140]
“The difference between the two standards is one of degree… [141]
Reasonable necessity v manifest standard: 2 main standards:
In Exam: lay out both argument clearly and put forward your preferred
argument (good argument as long as it’s coherent)
# facial mask case (standard you chose will affect the outcome, often the
test determines the result  policy choices of the court
8
# Nov28: question: in general, courts apply proportionality test.
(i)
Whether the impugned measure is “no more than necessary” to
achieve the legitimate aim (for which standard Hysan advocated)
– test of reasonable but not strict necessity. If this standard
chose, court has a right to say
“If assessment of the proportionality of the measure calls for the
application of purely legal principles and an assessment which
the Court is the expert to make, the primary decision-maker
having no special competence or expertise, it is likely that the
margin of discretion will have little role to play and that the Court
will simply adopt a standard of reasonable necessity.” [115]
When this standard applies, the government must show that the
restriction impairs the constitutional right as little as reasonably
possible to achieve the legislative objective [121].”
(ii)
Whether the measure is “manifestly w/o reasonable
foundation” (for which standard TPB argued) manifest test, when
applied, basically dissolve proportionality test.
The Manifest standard is applicable where “where the decisionmaker is likely to be better placed than the Court to assess what
is needed in the public interest. The Court may for instance, be
satisfied that he had special access to information; special
expertise in its assessment; or an overview enabling him to assess
competing and possibly prior claims for scarce resources. The
Court might also refrain from intervening because the measure
reflects a predictive or judgmental decision which it was the
institutional role of the decision-maker to take and as to which
no single “right answer” exists.” [116]
National Security [117]; Resource Allocation [118]; Mandatory
Life Imprisonment [118].
When the manifest standard applies, the Court will only interfere
if the government’s option is clearly beyond the spectrum of
reasonable options. [120].
★ The two standards only 2 ends on the spectrum, no clear
cut (so the facts could fall in between the two)
# prof. said the standard you apply will affect the result, so choosing the
standard  choosing the result
Prof. said Hysan itself not a case of liberal interp. it’s about billionaire v.
govt. govt tries to regulate billionaires’ lands forces govt to make sure
that land development must be proportionate to the landowner’s
interest.  later extended.
So many choices Court face: 1 proportionality, 2… 3. Bifurcate standard
(reasonable necessity/manifest test)
Absolute right: right against cruel punishment
For (i): CFA satisfied that a significantly less intrusive and equally effective
measure is available.
For (ii): related to the concept “margin of appreciation” in Euro
jurisprudence, also widely used in other common law juri, applicable in HK as
found in precedents. – this standard is factual based.
CFA: “any planning restrictions should be subject to constitutional review
applying the ‘manifestly w/o reasonable foundation’ standard”
9
4. Simon Young, “Restricting Basic Rights in Hong Kong”, (2004) 34 Hong Kong Law Journal 109
Argument
Conclusion
Roadmap
3
approaches
Young argues that “these rights [ rights found in BL but not in ICCPR] and
their possible restrictions should have an autonomous interpretation and
not have to conform to the minimum standards in the ICCPR”
3rd approach is criticized for unable to offer a clear picture of when and how
BL rights will be restricted. This uncertainty not surprising – BL still in its
infancy.
Except issues on right of abode, Bahadur was the first case before CFA on
the question of restriction on BL. with further development, CFA will
develop a series of consistent principles for determining permissible
restrictions.
1. CFA’s decision in Bahadur the most important to date on judicial
approach to the constitutional protect of human rights in HK post
97.  explains relation b.t. BL and BORO
2. Question: which BL rights will be constricted by the standard and
restrictions in ICCPR (HK) – Young’s argument: contrary to the
obiter in Bahadur, only sensible approach is to treat all BL rights as
autonomous ones having the potential to bloom beyond the
minimum standards of the ICCPR
3. (pp113) significance of the case – Bahadur involved a right found in
BL but not in BORO
4. Restrictions on Rights and art.39:
Issue is whether such statutory restriction is justifiable
BL39: 《公民权利和政治权利国际公约》、《经济、社会与文化
权利的国际公约》和国际劳工公约适用于香港的有关规定继续
有效，通过香港特别行政区的法律予以实施。
香港居民享有的权利和自由，除依法规定外不得限制，此种限
制不得与本条第一款规定抵触。
…
4.1 entrenched ICCPR – used to monitor restrictions on rights &
freedoms but has no legal effect in providing for enforceable
rights and freedom （即 ICCPR 起一个限制的作用，其本身并
不是 sources of rights/law?）
5. BORO:
5.1. 和 ICCPR 相比： provide for enforceable rights and freedom
(❖p115)
5.2. De facto entrenched status (not de jure as not mentioned
in BL)
5.3. two-fold constitutional significance:
5.3.1 vehicle for incorporating the ICCPR (HK) into domestic law
5.3.2 confers rights and freedoms that can be enjoyed by HK
residents (ie, 2 safeguards the rights)  so if restriction
infringes BORO/ICCPR  also infringed BL39
“it is only through the vehicle of art.39 that a breach of the BOR
becomes a breach of the BL”
6. Bahadur: rights found in BL (31) but not in BOR.
1st approach: Art. 39 as a general limitations clause (proposed by Govt)
a. CFA rejected general argument, instead proposed generous
interpretation.
# cuz otherwise, legislation prevails ICCPR (HK)
2nd approach: Overlapping Rights (adopted by Court)
10
a. only BL rights that overlap with rights in the ICCPR (HK) can be
restricted using the 1st approach. Otherwise autonomous restriction
analysis.
b. Core: classification of BL rights: right may be provided for (i) both BL
and the BOR, or (ii) only in BL not BOR, or (iii) only BOR not BL.  2
categories of BL rights: 1) exclusive BL rights ---- rights exclusive to BL
(rights only in BL not in BOR [as in the present case]) 2) parallel BL
rights ---- both in BL/BOR
B(i). CFA made important argument: “The question of whether
rights found only in BL can be restricted and if so the test for
judging permissible restrictions would depend on the nature and
subject matter of the right in issue. This would turn on the proper
interpretation of the BL and is ultimately a matter for the courts” 
autonomous approach
c. Author’s criticism:
a. Flawed classification exercise – uncertain definition. CFA seems
to use ICCPR/BoR interchangeably  wrong cuz art.39 specified
ref to ICCPR not BOR (otherwise the danger to confer a
restriction on previously exclusive BL rights without having to
amend the constitution)
b. Unjustified importation of reservation ---- the 2nd approach
permits allows restrictions on parallel BL rights if the restriction is
prescribed by law and not in contravention of the ICCPR as
applied to HK.  this approach imports all of the UK reservation
on ICCPR rights&freedom to parallel rights in BL  such
important is w/o justification and couldn’t be the intention of BL.
c. ICCPR provides only minimum standards of protection
3rd approach: all BL rights as Autonomous Rights (preferred by author)
a. Provides that permissible restrictions on all BL rights are matters of
interpretation and “depend on the nature/subject matter of the
rights in issue”
b. Divorce BL from ICCPR reservations made by UK for HK
Argument
1. Fair balance test in the 4th step is unwarranted and unsound in principle cuz 3rd
and 4th stages serve different purposes and has a tendency to turn the test into
one of secondary importance such that the courts may not apply the test as
rigorously as they should.
2. Distinction should be drawn b.t. a legislative encroachment and an
executive/discretionary encroachment.
11
5.
Conclusio
n
Roadmap
3. Secondary importance of 4th stage only justified when consideration of the test
would have already been exhausted in the first three stages.
4. After Hysan’s development of the principle of margin of discretion in the
proportionality analysis, now little difference b.t. the proportionality test and
the traditional Wednesbury rationality test in common law judicial review.
1. Hysan ---- 4th stage is welcomed but shouldn’t relate to a residual consideration.
2. Distinction b.t. restriction of a fundamental right by legislative provision and an
exercise of discretionary power.  fair balance test crucial for discretion when
legislative scheme is not challenged.  in these cases, legislative scheme passes
first 3 stages of the test /= fair balance has been satisfied.
3. Balance b.t. individual interests and public interests:
4. Hysan provides that proportionality inevitably involves a value judgement.
2. The Hysan Case:
3. The Fair Balance Test:
(a) The Canadian Cases
(b) The ECHR Property Cases
(c) ❖Legislative Encroachment vs. Executive/Discretionary Encroachment
4. Application of the Fair Balance Test after Hysan
5. A Bifurcate System: Human Rights and Non-Human Rights Judicial Review
6. The Argument in Favour of Bifurcation
7. Conclusion
Johannes Chan, “Proportionality After Hysan: Fair Balance, Manifestly without Reasonable Foundation and
Wednesbury Unreasonableness”, (2019) 49 Hong Kong Law Journal 265
Discussion Questions:
1. What is the constitutional status of the Bill of Rights Ordinance in Hong Kong? Is it merely a statute?
2. What does “ICCPR...as applied to Hong Kong” in Article 39 of the Basic Law refer to? What are the three possible
views? What is Simon Young’s view?
3. In Leung Kwok Hung, what test did the CFA lay down in deciding when a constitutional right may be restricted?

Proportionality test, reasonable necessity standard. §4
4. In Hysan, what is the 4th step the CFA added to the proportionality test?
5. In Hysan, why did the lower courts not want to apply the proportionality test at all?
What test did the lower courts want to apply?
 P 38
5. Why did the CFA in Hysan disagree with the CA? See Paragraph [32]. Why is this ironic?
Ironic cuz Court reluctant to insert “only” but Court adds the 4th stage of proportionality test. So Courts add
one more layer to protect individuals’ property rights (besides the legal certainty).
In accordance with law == prescribed by law (in substance)
7. What are the factors the CFA in Hysan take into account when deciding how the 3rd step is applied?
8. What specific types of cases did the CFA in Hysan use to illustrate circumstances it would defer to the HKSAR
government when applying the proportionality test?
9. Give me another example for deference, raised in Part A of your course, which the CFA in Hysan did not mention.
10. Even though proportionality review was applied in Hysan, what did the CFA do to reduce the burden of proof on
the HKSAR government? Is this consistent with the factors the CFA emphasize? (see Question 7)
12
11. In paragraph 78 of Hysan, the CFA argued that the fourth step is “unlikely” to change the result reached by the
three-step test. Johannes Chan argued in his essay that Step 3 and Step 4 are distinct and different aspects of the
proportionality test. Who do you agree with and why?
12. Johannes Chan on Page 274 of his essay argues that a distinction must be drawn between a “legislative
encroachment” of fundamental rights and a restriction imposed by “executive discretion”. As an example of the
former, Chan referred to restrictions on spousal benefits for same-sex couples. Was that a “legislative”
encroachment? Or is Johannes Chan actually distinguishing between rule-based encroachments and discretionary
restrictions?
Prof said he doesn’t think there’s must of a difference, whether it’s a LegCo law or governmental regulation that
takes away your property, the effect on individuals is the same no matter the branch of govt referred to (prof
doesn’t think there’s a clear distinction). He said it’s the same, the wording is identical and the impact on individual
is the same.
13. Do you agree with Johannes Chan that the Step 4 analysis plays a more distinct role for discretionary restrictions
than rule- based ones
Seminar 8: Assembly Freedom
Readings:
Yap Po Jen, Chapter 23, in Johannes Chan and CL Lim, Law of the Hong Kong Constitution (3rd edition, 2021), (not
included in DM)
2. Yeung May Wan and Others v. Hong Kong SAR, (2005) 8 HKCFAR 137
3. Leung Kwok Hung and Others v. Hong Kong SAR, (2005) 8 HKCFAR 229
4. Cheung Tak Wing v Director of Administration, [2020] HKCA 124
5. Kwok Wing Hang v Chief Executive in Council [2020] HKCFA 42 (excerpts)
3 categories of Human Rights:
a. Parallel BL & BORO rights:
Restriction: 1) “prescribed by law” 2) “necessary”  satisfy the 4-stage proportionality test. For the 3rd stage
of the proportionality test: court decide whether to apply 1) reasonable necessity test or 2) manifest test. Standard
determines the outcome closer to reasonable necessity, harder on the part of the government to discharge the
burden of proof. (Manifest test/reasonable necessity can also just be independent tests that court uses to determine
the restriction [w/o involving proportionality test]
Exceptions: right to marriage (Court didn’t use proportionality test)  proportionality test is the usual
approach but not absolute. Right against cruel punishment – absolute right.
b. Exclusive BL rights: right to travel
c. Exclusive BORO [greater spectrum of privacy rights] rights: right to a fair hearing by an independent
adjudicatory body…
Prof. reviewed questions: for free speech/assembly/equality  court clarified law of proportionality test. (Court
also applies proportionality test in presumption of innocence) Prof. said if it’s a BORO right  Court will most likely
apply proportionality test. ???
Sometimes when the court hasn’t clarified  depends on the counsel to argue (in exam, if the case law is unclear,
argue for the position you represent)
Eg: right of abode – unclear, right to marriage – unclear, so doesn’t mean BORO right  proportionality test.
Proportionality test is judicial convention, which means that it’s changing and developing.
13
Wednesbury unreasonable: is also a potential option. HK: arguably using this under manifest standard (in substance
no difference b.t.. W and manifest standard)


Case
Key
Rule
Issue
Fact
Reasoning
Freedom of Assembly: [notice this is not an official term, just useful to summarize]
BL27:
Yeung May Wan and Others v. Hong Kong SAR, (2005) 8 HKCFAR 137
法轮功集会
Public place obstruction does not consist of mere obstruction but of unreasonable
obstruction in the sense that the public could not reasonably be expected to tolerate
it. (Otherwise the freedoms of assembly, procession , and demonstration would be
unacceptably curtailed).
a. The basis upon which the public place obstruction convictions were quashed.
b. When was an arrest lawful
c. Whether an unlawful arrest meant that officers were not acting “in the due
execution of their duty” on the wilful obstruction and assault charges
Ds were a group of about 16 ppl who gathered outside the office of CPG for peaceful
demonstration. The police then arrived and the demonstrators resisted and were
arrested after repetitive police warnings for obstruction. Ds were convicted under
obstruction of a public place against s.4A of the Summary Offences Ordinance
(Cap228), s.4(28)… CA quashed the conviction on the public place obstruction but
upheld those on the wilful obstruction and assault charges. Ds then appealed to CFA
Obstruction is reasonable, so the arrest is illegal.
Strong political consideration.
!! proportionality test hasn’t invented at this moment yet. §1:…
Govt argues that they rely on legislation: s.4(28) of the Summary Offences Ordinance
…[add the slide, law only req “may”]
CFA: §44. test of reasonableness, (precursor of proportionality test)  law only applies
to unreasonable obstruction.
Held
Appeal allowed. Regarding the issues:
Public place obstruction charges
a. Quashing of the public place obstruction charges was correct
b. Ds would only be guilty of such offence if they caused the obstruction w/o
lawful excuse. Burden of proof on the prosecution. “A person who created an
obstruction was not acting without lawful excuse if his conduct involved a
reasonable use of the public place” §2. Reasonableness: question of fact.
Arrest
c. §3. S.50(1) must be construed consistently with BL28, hence needs to meet the
req of reasonable suspicion of guilt. Thus, there must be objectively reasonable
grounds for that suspicion.
§7: nothing indicated that the arresting officers might reasonabley suspect that
Ds’ obstruction amounted to an unreasonable use of the highway and
therefore to have been w/o lawful excuse (esp. considering their constitutional
right to demonstrate).  unlawful arrest for obstruction contrary to s.4(28).
 police’s actions not performing their due diligence.
Delay of trial: 14 mons  unacceptable under the principle of “justice w/o delay”
Further
1. HK courts learning to live with CHN
information
https://carnegieendowment.org/hkjournal/archive/2010_fall/2.htm
2. Freedom of assembly overview
https://clic.org.hk/en/topics/FreedomOfAssemblyProcessionDemonstration/all
3. CityU Rule of Law under OCTS
14
Case
Key
Rule
Issue
Leung Kwok Hung and Others v. Hong Kong SAR, (2005) 8 HKCFAR 229
Whether it is a statutory req to notify the Commissioner of Police (CP) of a
proposed public procession consisting of more than 30 ppl in a public place.
Whether CP has a statutory discretion to restrict the right of peaceful assembly by
objecting to it or by imposing conditions.
Whether the statutory scheme for regulating public processions was contrary to
the right to freedom of assembly in BL27, art.21 of the ICCPR, and art.17 of the
Hong Kong Bill of Rights.
Focus of challenge: discretion for the purpose of “public order (ordre public)” was
too wide and uncertain and so didn’t come under permissible restrictions (legal
certainty) of (a) “prescribed by law” as per art.39(2) of BL, art.17 of the Hong Kong
BoR and art.21 of the ICCPR and (b) “necessity” as per art.17 of HK BoR and art.21
of ICCPR.
Argue that order public is not prescribed by law –
1st time when proportionality test was used for constitutional
rights. But CFA didn’t address the proportionality issue cuz it’s not challenged by
Fact
Reasoning
the appellant.
Appellants failed to give prior notice of a public assembly consisting of more than
30 pp. They were invited to give notification by the police but refused to do so.
Appellants were charged under POO for holding/assisting in the holding of an
unauthorized assembly. They were convicted in Nov 2002 and then appealed in
Dec that yr. Appeal was dismissed by CA, they then appealed to CFA.
1. Prior notification is required to enable the Police to fulfil their positive
duty on the part of the government to take reasonable and appropriate
measures to enable lawful assemblies and peaceful demonstrations.
2. Appellant’s argument:
CP's statutory discretion to restrict the right of peaceful assembly by
objecting to a notified public procession or by imposing conditions for the
purpose of “public order (ordre public)” was too wide and uncertain to
satisfy the requirements of constitutionality
CFA:
Generous interpretation as per Ng Ka Ling, and narrowly interpreted as
per Gurung Kesh Bahadur (§16)
a. “public order (ordre public)” is specified in the International Covenant
on Civil and Political Rights (ICCPR) as a legitimate purpose for the
restriction of the right of peaceful assembly. The CFA accepted the
concept of “public order (ordre public)” as a constitutional norm.”
b. But “CP’s discretion to restrict the right of peaceful assembly for the
purpose of “public order (ordre public)” does not satisfy the
constitutional requirement of “prescribed by law” which mandates
the principle of legal certainty”
c. Remedial interp: “severance of “public order” in the law and order
sense from “public order (ordre public)” in the relevant statutory provisions. After
severance, CP’s discretion to restrict the right in relation to “public order” in the
law and order sense under the relevant provisions was held to be constitutional”
sever: cut away the unconstitutional parts.
order public v. public order:
order public is a wider concept compared to the latter, concerns public safety…
eg, vaccine safety. Eg: order public concern may not entail law: copy
rights/pattens…
15
according to the government: the Police has power to ban assembly, but order
public is not invented by the government, but comes from BORO. If saying order
public not prescribed by law  BORO not prescribed by law?
CFA: order public is problematic because the def is given to police, and police is a
branch of the executive (a non-independent branch of the govt), not judiciary.
Major concern is that [diff considerations apply at a statutory level…. See the
slides] order public is no longer part of HK law. (order public no longer used in
POO, but still exist in BORO)
Prof. said judiciary needs to make sure govt act within the bounds of discretion,
discretion is always given to the govt.
CFA proportionality test: §33. 35…
Public Obligations on Govt:
CFA:
Min inconvenience..
prior notification necessary: may cause problems to the public, need to make sure
hospitals… are stand by for the event  good reasons for notification. The only
problem is that if the police can use the discretion to always stop the assembly…
(but a separate problem regarding prior notification)
provide demonstrators with access to public space of significance?
Duty to protect members of the assemblies from hostile audience? (prof. said
need to consider the purpose of the rule/law, and consider the policy)
Hypo: answer the question why is this req serving a legitimate aim? Need to go
further than the pure law and consider policy arguments and other
considerations.
Held
CFA dismissed the appeal. CFA found that the offences for which the appellants
were convicted did not relate to the statutory provisions conferring on CP the
discretion to object or to impose conditions on a public procession where he
considered it reasonably necessary in the interests of “public order (ordre
public)”. Hence, the CFA by a majority of four to one (with Mr Justice
Bokhary PJ dissenting) dismissed the appeal and upheld the convictions.
Dissenting opinion: §11. Mr Justice Bokhary PJ found that CP’s entitlement to prior
notification of public meetings and processions to be constitutional. But, in
his view, this entitlement should not be enforceable by the criminal sanctions
in section 17A. He also found CP’s powers of prior restraint and the related
criminal sanctions to be unconstitutional. Accordingly, in his view, the
appeal should have been allowed. Mr Justice Bokhary PJ’s view is a minority view
and is obiter dictum and not ratio decidendi.
Bokhary: national security, public safety… all not prescribed by law and everything
is vague and should be abandoned…? Others said LKH only challenged “order
public” and the police, when exercising discretion, need to satisfy proportionality
test. (in 05, staged-proportionality first used for constitutional rights)
Bokhary: police has right of prior restraint, ie, stop the assembly before it taking
place. [check the slides]  problematic cuz police have other means to stop them.
All powers of prior restraint are unconstitutional. (police can take action during
the restraint, not before the restraint)
But counter argument could be that JR is too late. Judicial Review: too late (2 yrs
later).
16
Prof. said Bokhary’s argument is extraordinary when 1) tho the nofication req is
constitutional, but he quashed LKH’s conviction cuz notification req was so
intertwined with the criminal penalty prescribed by law (prof. said didn’t
understand this logic) [slides, said #4 is not logical but 5 is] [prof. said he thinks the
two can separate]
2) But he will create exception for mere nonfiction which is a
spontaneous demonstration. (ie, notification required, but the police
can’t say no. it’s just a mere notification request, and the exception
is that no notification required for spontaneous demonstration)
Argument is that sometimes, if sth so important happened in HK, then
ppl should be allowed to demonstrate immediately w/o waiting for
notification. Prof. said this interesting, cuz all these are interp and not
written in law. So B is making policy trying to balance the interest of
society and he thought the government should pass a totally new
ordinance.
Prior restraints? [add the slides] exception for spontaneous demonstration?
Statutory legitimate grounds for intervention: [slides] national security… freedom
of others… CFA actually held in obiter that this ground is unconstitutional too (find
out in the CFA obiter) (ie, rights and freedoms of others not prescribed by law in
obiter???)
: LKH were still fined cuz the focus is failure of notification. In HK, if you notify, the
police can stop (semi-license), according to B: too intertwine with the criminal
penalties that can’t stand independently §215 [5 on the slides]…
Prof. said: dissenting judgement can be ignored during the exam when dealing
with problem question. But if essay question, you can explore and give some
consideration to the dissenting judgement. Have to learn the counter argument
and the test  how to apply the test to the fact is debatable.
Further
information
J Brabyn on LKH cases
Case
Key
Cheung Tak Wing v Director of Administration, [2020] HKCA 124
Rule
Issue
Fact
Burden of proof switched?????
At the CA, the main issues in dispute are:
(a) whether the Scheme is prescribed by law (“Prescribed by Law Issue”);
(b) whether the Scheme is tainted with illegality, i.e. by reason of the error of fact
or error of law (“Illegality Issue”);
(c) whether the Scheme is proportionate (“Proportionality Issue”).
The Applicant, a Hong Kong permanent resident, submitted an application for
permission to use the Forecourt for a public meeting on 19 September 2014 from
9:00 am to 7:00 pm. His application was rejected by the Director (“Decision”),
as the proposed date of the event was on a weekday. The Application brought a
judicial review challenging the constitutionality and lawfulness of the Scheme
(relying, specifically, on breaches of the rights to freedom of expression and
assembly under Basic Law (“BL”) Art. 27 and Hong Kong Bill of Rights (“BOR”) Arts.
16 and 17)
CFI ruled the scheme as unconstitutional for reasons such as “The Scheme did not
satisfy the proportionality test and was unconstitutional for being inconsistent
with BL 27, BOR 16 and BOR 17.”
17
Reasoning
The director then appealed to CA
Necessity test: intervention of proper functioning of the government?
CA; solo demonstration not covered by Prohibition. Solo demonstrator is not a
“meeting”…. [slides] CA: save the law by saying that cuz one person is not covered
by the legislation. (whereas CFI just struck down the law)
Hypo: prof. ask what if just 2 ppl? CA said stage 3 of p test not satisfied?
CFI focusing on typical application on stage 3: has the govt chosen the reasonable
necessary option
CA: flip the side: demonstrator has alternatives to demonstrate: why can’t
you just go to other places for such demonstration. Under the traditional step 3:
burden on the govt, now CA asks why the demonstrator not go for the easy
alternative. CA determined that when govt decided to let you demonstrate or not,
govt needs to apply proportionality test when exercising this discretion §119...
[although we come to the conclusion that the permission… check the slides]
Court’s policy argument: even if the particular action is problematic, the director
has to apply proportionality, so you can challenge the decision on proportionality,
but CFI can’t strike down the whole law.
Hypo: if a group of ppl wants to demonstrate at Hennessy Road, once you switch
the test, what you need to prove is diff and the govt can ask “why H road not
other places?”  if you change the test, you change the dynamics, and it would
lead to different policy outcomes. For the normal test, burden of proof on the
govt to provide reasonable basis that you are not allowed to demonstrate on H
road.
Prof. said you can’t resolve conflicts in constitutional law.
Prescribed by Law Issue
7. A restriction is prescribed by law if it is (a) imposed with proper legal authority;
(b)
accessible; and (c) formulated with sufficient precision, clarity and safeguards to
protect individual against abuse by way of arbitrary interference of his rights
(paras. 47 - 50). In this case there was no issue on the accessibility and the focus
was on the other two issues. (para. 53)
8. On the issue of proper legal authority, CA held that the proprietary right of the
Government in respect of the Forecourt and its duty as occupier provided proper
legal authority for implementing the Scheme and thus no further statutory
backing is needed for the Scheme. This criterion is thus satisfied. (para. 52)
9. On the issue of sufficient precision, CA, by referring to the terms set out in the
administrative guidelines for enforcing the Scheme, held that on the evidence
there are sufficient safeguards against arbitrary inference with the exercise of
rights to freedom of expression and assembly. This criterion is also satisfied and
hence the Scheme is prescribed by law. (paras. 54 – 57)
Illegality Issue
10.The Scheme could be tainted with illegality by reason of the error of fact or
error
of law or both.
11.On the issue of error of fact, CA held that, on the evidence, the Applicant has
no
basis to suggest that the Director erred in managing the Forecourt on the basis
that the Government had ownership of the land. On the contrary, CA found that
the Director’s legal authority for formulating the Scheme stemmed from such
18
ownership. (paras. 58 - 61)
12.As for the issue of error of law, CA held that the Court of Final Appeal (“CFA”)
judgement in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 (“Fong
Kwok Shan”) did not say that the Government’s property ownership is irrelevant.
Further, the Director, as the manager of the CGO on behalf of the Government,
had a duty to ensure activities in the Forecourt would not hamper business
operations at the CGO and the safety and security of those visiting or working
there. (paras. 62, 64)
13.Thus, it was not an error of law for the Director to start from the premise that
as
landowner the Government could set conditions for public to use the Forecourt.
Nevertheless, such conditions must be subject to the proportionality analysis,
which will be elaborated below. (paras. 62, 63 – 65)
Proportionality Issue
14.CA held that the present case does not involve any competing constitutional
rights
insofar as the Forecourt is concerned (para. 93). Following Fong Kwok Shan, the
property rights guaranteed by BL 6 and BL 105 are not engaged in respect of
Government properties. (paras. 79 – 85) Nor is the right to inviolability of other
premises under BL 29 engaged, as it only applies to CGO, which is a workplace of
the civil servants and Government ministers, but not the Forecourt. (paras. 87, 91
– 92)
Held
15. Following Fong Kwok Shan, CA held that the applicable standard of scrutiny is
“no more than necessary”. Applying the 4-step proportionality analysis, Steps 1, 2
and 4 are satisfied:
Step 1: There are legitimate aims for the implementation of the Scheme (paras.
103 – 106, 111);
Step 2: The Scheme is rationally connected with the legitimate aims (paras. 112
– 115); and
Step 4: A fair balance has been struck between the societal benefits of the
encroaching measure on the one hand and the inroads made into the
guaranteed right on the other. (paras. 139 – 141)
16.The major issue before the Court is Step 3 – whether the Scheme is no more
than
necessary to achieve the legitimate aims. CA held that, the proportionality of
the Scheme should be assessed together with other alternative avenues for
demonstration and petitions at or in the vicinity of the CGO. Having assessed
the extent of the restriction and balancing the same against the potential risks of
disruption to the operation of the CGO during the working days, CA held that the
Scheme is no more than necessary to achieve the legitimate aims. (paras. 119,
124,
138)
By the judgement of 14 February 2020, the CA allowed the Director’s appeal
whereby it:
(a) affirmed that the Scheme satisfied the prescribed by law requirement.
(b) reversed the ruling that the Scheme was tainted with illegality by reason of
the error of law and upheld the CFI’s ruling that there was no error of fact;
and
(c) reversed the ruling on proportionality and held that the Scheme was
proportional.
Further
information
19
Case
Key
Rule
Issue
Fact
Kwok Wing Hang v Chief Executive in Council [2020] HKCFA 42 (excerpts)
蒙面
(1) whether, in the light of the BL, the CEIC was lawfully given
power by LegCo to make the PFCR under the ERO (i.e. the constitutionality issues),
and
(2) if the ERO is determined to be constitutional and the PFCR duly made
thereunder,
whether certain of the provisions of the PFCR are a proportionate restriction of
protected
rights (i.e. the proportionality issues). (Paras. 3-4 of the Judgment)
Face Covering Regulation [check the slides ]… unlawful, unauthored, lawful
Bans face-covering at all 3 occasions. Lower court said if it’s lawful, police
shouldn’t have the right to ban the mask.
Court: legitimate aim of the regulation 1) deter violence 2) facilitate law
enforcement/investigation/prosecution
Idea: difficult to draw a line between the 3 occasions because the assembly, due
to emotion, can be fluid.  Court: innocent bystander will have defence  hence
the law is proportionate  this only restrain ppl who intends to demonstrate.
And ppl in yrs demonstrate w/o mask
Counter-argument: demonstrators have strong reasons to wear a maks:
demonstrate against your comp (strike)/ conflict with the position of
demonstrator…
Lower Court’s rationale: exempt lawful assemblies from the regulation.
CFA: preferred to choose a policy more diff from the govt??
CFA: decision quite liberal. (lower court struck down the emergency… law) so the
Lower Court: unconstitutional cuz CE doesn’ have that power (only sub-legislation,
but ERO: regulation shall in effect [s.2(2)(g) ]
CFA: ERO must read tgr with BL: hence ERO can’t overturn LegCo legislation, since
it can’t overturn LegCo legislation, (BORO, in theory, can be overturned by CE by
s22g) but Court said no: BL39: any restriction must be prescribed by law and
proportionate, so if CE passed the legislation  Court still able to examine the
constitutionality, ERO can’t overturn legislation, but on the fact when applying
proportionality ERO is upholding it. ??? but it is less confrontational compared to
CFI (didn’t say ERO is unconstitutional, but in substance affirm lower court’s
decision CFA read ERO in a way that it can’t subvert BORO and when looking at
the regulation, but the ///////?  policy concern (CFA said the assembly status is
fluid  a more deterrent test is preferred).
Prof.: rights included in BORO not indentical to rights in BL, overlap but not
identical. According to Court: BORO rights actually all incorporated into BL, but
lower court only said govt can’t override absolute right (agasint torture…) but for
CFA: the entire BORO can’t be overturned (but not a clear-cut, just policy choice)
Counter argument: 2019: HK in a volatie situation, during such turmoil, govt can
use the regulation to maintain public order  you may argue that social condition
has changed.
20
Article
Yap Po Jen, Chapter 23, in Johannes Chan and CL Lim, Law of the Hong Kong
Constitution (3rd edition, 2021)
Central
Argument
Roadmap
1. intro
2. rationale for protecting freedom of assembly and association
3. public meetings and demonstrations
a. statutory regime of POO
b. landmark case-law developments
c. positive obligations on the Government
d. prior restraint and the statutory legitimate purpose of intervention
e. facial and “as applied” challenge
f. content-based and “time, space and manner” restrictions
a) all these time restrictions could be coercive licensing. Policy
argument: ???? [check the slides ]
g. public/private nature of the demonstration venue
4. freedom of association
a. what is an association
b. statutory regime of the Societies Ordinance
c. restrictions on the freedom of association
5. Trade Union Activities
a. Right to form and join trade unions
b. Right to protection from anti-union discrimination
c. Right to collective bargaining
d. Right to strike
e. Freedom of non-association
Exam: whether you want to hand write/ typing, there’s a software to try out  software blocks you from assessing
other online documents. For those type faster, you may want to use typing. Prof. said he prefers close reading of
cases and you have to read the whole text of cases lol
Q&A：
1: Cheung Tak Wing 2020 case diff stage 3 of proportionality: according to lecture, 2 proportionality test: 1) burden
of proof on govt 2) CTW: court implied burden of proof on D. What kind of proportionality test will be used in the
future?




Traditionally, burden of proof on govt every time to show how every stage is satisfied. But in this case, court
seems to be asking ‘why other available alternatives not good for you?”
CA decision. Counsels will have to deal with both. A lot of tension between diff cases. Until the CFA hand out
new ruling, you can argue both and put forward the preferred.
CA: never have the opportunity to apply the proportionality test, what the court probably do is that the 4stage proportionality test will apply. Still open question whether for stage 3: reasonable necessity /manifest
test.
Director: needs to apply the proportionality test when exercising discretion on a case-by-case situation.
Johannes criticized Court’s decision in Hysan. Prof. said proportionality test is less justified when t?????
legislation had… when discretion has been expressly given by the legislation to the executive – separation of
powers/different constitutional roles.
2: prof. said: Director’s decision can still be challenged and director’s decision is not final. – case by case analysis.
Same for Leung Kwok Hung: on the fact, if your assembly is rejected you can still do a case-by-case challenge.
3: whether freedom of assembly always subjects to the test of necessity after LKH:
Today, after the change of CTW, how they apply the 3rd stage is going to be different. But LKH laid out the test in
2015,  unlikely to invent a new test. Unclear about this question but how they apply eventually will be open to
litigation.
21
CTW: Court is saying that the law itself is proportionate cuz satisfied a diff version of stage, but you can still challenge
on a case-by-case basis. (Sometimes Court reluctant to strike down the law completely but willing to challenge case
by case).
Discussion Questions
1. In Leung Kwok Hung, what normative arguments did the CFA give for protecting the freedom of assembly?


Cherish competitive ideas, minority rights, there should be toleration… possession is often a means for
speech to be articulated in a public square.
Form of collective action for ppl to bring their arguments tgr and get noticed by the public/government…
2. In Yeung May Wan, what was the legislation that was violated by the accused? What were the elements of the
crime?
3. In Yeung May Wan, how did the CFA reconcile the constitutional right to free assembly with the terms of the penal
legislation?
4. Why did the CFA in Yeung May Wan quash the convictions of the accused?
5. Why was the Public Order Ordinance (POO) not applicable in Yeung May Wan?

“Since the number of demonstrators was small, there was no need under the Public Order
Ordinance to notify the police in advance or to comply with procedural requirements which are only
applicable to assemblies involving more than 50 persons or processions involving more than 30
persons.”
6. What test did the CFA in Leung apply to determine whether a restriction on free assembly is justified?

Proportionality test,
7. What is the “prescribed by law” requirement?
8. Why was the “public order/ order public” requirement in the POO not “prescribed by law”?
9. What is the proportionality test laid down in Leung? How is the test different after Hysan?

§36 sets out the test in Leung
10. What positive obligations should be placed on the government with regard to the right to free assembly?
11. According to the CFA in Leung, what other statutory ground for intervention by the Commissioner of Police
under the Public Order Ordinance is arguably unconstitutional?
12. Why did Justice Bokhary dissent in Leung?
13. Can Yeung and Leung be reconciled?

“It was also pointed out that citizens have a right to use reasonable force to resist an unlawful arrest
and detention. In this case and in the related case of Leung Kwok Hung v HKSAR, 56 the CFA stressed
the importance of the constitutional right to freedom of peaceful assembly and demonstration
which is guaranteed by the Basic Law, the Hong Kong Bill of Rights and the ICCPR. The decision in the
Falun Gong case testifies to the equality of all before the law, so that Falun Gong members, though
persecuted in the mainland, are accorded the right to demonstrate directly in front of the Liaison
Office of the Central Government in Hong Kong. The landmark decision epitomises the vibrancy of
the life of the law and the spirit of human rights in Hong Kong and reveal the deeper meaning of
OCTS.” – CityU OCTS
22
14. According to the CA in Cheung Tak Wing, do lone protestors need to seek permission to protest at the Forecourt?
15. Why did the CA rule in Cheung Tak Wing that the restriction was “no more than necessary”?
16. After CA Cheung Tak Wing, can the government have a blanket ban on demonstrations of more than one person
at the Forecourt on weekdays, even if LegCo is not in session?
17. In Kwok Wing Hang, why did the CFA state that the Regulations made under the Emergency Regulations
Ordinance cannot override the Bill of Rights Ordinance?
18. Why did the CFA in Kwok Wing Hang uphold the ban on facial covering at lawful public assemblies?
Seminar 9: Expression Freedom
Readings:
1. Yap Po Jen, Chapter 21, in Johannes Chan and CL Lim (ed), Law of the Hong Kong Constitution (3rd edition, 2021)
(not included in DM)
2. Hong Kong SAR v. Ng Kung Siu, (1999) 2 HKCFAR 442
3. HKSAR v. Koo Sze Yiu, (2014) 17 HKCFAR 811
4. HKSAR v Christine Fong, (2017) 20 HKCFAR 425
5. Secretary of Justice v Ocean Technology, [2008] HKEC 2114 [but see HKSAR v Wong Yuk Man, (2012) 15 HKCFAR
712 at para 6.]
6. Chee Fei Ming v Director of Food and Environmental Hygiene, [2020] 1 HKLRD 373
7. Po Jen Yap, “Collateral Challenges in Criminal Proceedings: Mayday for Citizens Radio” (2009) Hong Kong Law
Journal 189
Article
Ch.21 of Law of the HK Constitution
Important
Arguments
“Freedom of expression is a fundamental freedom in a democratic society” <
HKSAR v Ng Kung Siu >
F of expression protected under BL27, BORO art.16
F of expression: not an absolute right, restrictions must pass the
proportionality test
Roadmap
1. Freedom of expression
2. Rationale for protecting f of expression
< R v Secretary for the Home Department > :
1. Promotes self-fulfilment of individuals in society
2. Competition of the market provides the best test of truth
3. Lifeblood of democracy, prevent abuse of power, expose
errors in govt, facilitate administration of justice
3. Flag desecration
<Ng Kung Siu > , CFA concluded that there were legitimate societal and
community interests in keeping the symbols of nationhood and
sovereignty  upholding national unity
Criminal prohibition against flag desecration was a limited restriction
of the freedom of expression as it banned only one mode of expression
and didn’t interfere with a person’s freedom to express the same
message through other ways  passed the test of necessity
CFA doing this to avoid invalidating of a PRC law  otherwise
introduce another NPCSC interpretation. [still in the constitution crisis,
check slides ‘NKS’ why law necessary…] prof. said Court was at a
sensitive moment. 2) the Court here claimed that they were applying
23
4.
5.
6.
7.
8.
9.
10.
11.
12.
Case
Key
Rule
Issue
Fact
the Flag Ord, but in reality, also a PRC law  HK no power to strike
down national law that is part of BL. and that question is not for the
court to decide  should ask NPCSC for ref. This is also 1st ICCPR case
of HK after handover, if they strike down the law  in theory need to
send the case to BJ, the court also doesn’t want to send the first ICCPR
case to BJ as well. (HK govt also didn’t ask to)  policy options.
Contempt of court
Scandalising most concerning: viewed as public wrong for merely
undermining the general public’s confidence in the administration of
justice (not interfering the admin of justice itself)
Relev factors: size of audience, duration of influence…
Defamation
< Cheng v Tse Wai Chun >
Regulation of members in professional bodies
Media content-based regulation in HK
Regulation of radio broadcast
< Justice v Ocean Technology >
CA: D may not challenge the constitutionality of the licensing
procedure provided under the Ord by way of defence in a criminal
proceeding brought against him under the said statute (should instead
resort to judicial review) 775- not very sure about this ❖
Public display of message
< Fong Kwok Shan Christine > :
Restrictions on the disclosure of confidential information
Hate propaganda
Forced expression
Hong Kong SAR v. Ng Kung Siu, (1999) 2 HKCFAR 442
BL 27: free speech
Whether s.7 of each ordinance (as a restriction to the freedom of expression)
was contrary to art.19 of the ICCPR hence BL39.
< Kwok Hay Kwong> [check the slides ]  free speech helpful in holding govt
accountable
Ds convicted of desecrating national and regional flag Constitutionality of ss 7
of National/Regional Emblem Ordinances (national law enacted by local
legislation)
Ng then successfully appealed to CA. CA held that ss 7 contravened the
freedom of expression guaranteed under art.19 of ICCPR and hence BL39. The
government appealed to CFA.
Reasoning
§2. Freedom of expression was a fundamental freedom in a democratic
society… guarantee. §3 but not absolute… BL39(3) recognizes restrictions
subject to 1) prescribed by law 2) necessity test
BL39(2) [check the slides ] Court could have used BORO s. to strike down
legislation pre-97  removed by BJ, but Court said they can do this using BL39.
(Court can use BORO to strike down any legislation (s.3(2) BORO )
Class Hypo: in reasonable nessesity test: govt can do 7 tho the quarantine min
is 5, court will still accept this, but not accept 20 (doesn’t have to choose the
real min but has to near the min)
 reasonable necessity “no more than necessary’
24
§5. Concept of public order, range [add this later]
§6. New constitutional order after the handover  legitimate societal interests
in protecting national flag
§8: necessary restriction: 1) legislative intention 2) only limited restriction 
band one mode of expressing (desecration of the flag) but didn’t interfere w/
the person’s freedom to express… by other modes.
Proportionate, and the implementation of OCTS was of fundamental
importance.
pp.446: flag is unique as a national symbol
pp.447: at national/regional level: legitimate interest in protecting the
national/regional flag
arts17,18 of PRC Law: regulate the display/use of national law.
BL18: application of national law, BL18(3) Annex III
1997 Jul 1: PRC Law on national flag added to Annex III  national flag
ordinance.
Regional flag: BL10(1)(2), The Regional Flag Ordinance
Freedom of speech – BL27, freedom of expression – art.19 ICCPR (incorporated
into BL by BL39)/BORO art.16
Held
Further
information/Reflections
Case
Key
Rule
Issue
Fact
pp.455: extent of restriction.
pp.456: not a wide restriction of freedom of expression, but limited:
pp457: restriction justified?
 Not an absolute right, individuals have duty to community/other
individuals.
 Restriction need to be necessary: 1) for respect of the rights or
reputation of others 2) for the protection of national security or of
public order or of public health or morals.
Concept of public order (not limited to law/order) < Oriental Press Group >
pp.458: not absolute or precise…
pp.459: Siracusa Principle
pp.460: necessary?
 Proportionality, aim of the legislation: protect national flag as a unique
symbol of the nation/ regional flag as well.  limited restriction  test
of necessity past.
pp.467: test: reconcilability: legislation & constitution
Hong Kong at early stage (2 yrs after handover [check the slides])
Both ss7 consistent with the freedom of expression guaranteed under art.19 of
the ICCPR (art.16 of BORO) as applied under BL39.
Check 理论与实践相关内容，2 ruling… , DoJ
HKSAR v. Koo Sze Yiu, (2014) 17 HKCFAR 811
Flag desecration, human rights
Whether s.7 of the REREO was unconstitutional in the light of the guarantee of
the freedom of expression contained in art.16(2) of BORO
Ds attempted to set fire to regional flag at public procession; convicted of
attempting to desecrate
regional flag
25
Reasoning
Held
§5(pp37): 1st question: infringed right to be the right to hold opinions w/o
interference  §7: restated Ng Kung Siu cases basically.
§9: 2nd question: developments regarding “time/place/circumstances” §12,
§13: applicant really attempting to re-argue the same points considered by
Court in Ng Kung Siu,  unarguable.
Dismissed the applications for leave with costs
→no basis to suggest that the societal interest in protecting the regional flag
had changed since the decision in Ng Kung Siu so as to make it remotely
arguable that this interest could no longer be regarded as coming within ordre
public
→the reference to "time, place and circumstances" in Ng Kung Siu was a
reference to a part of the legal test to determine whether or not the concept of
ordre public applies. It was not a general invitation to revisit the validity of
decisions of the Court from time to time.  umbrella movement happening at
the time. (no mention of occupy central in the judgment tho, but every J is
aware of it)
Further
information/Reflections
Case
Key
Rule
Issue
Fact
Reasoning
HKSAR v Christine Fong, (2017) 20 HKCFAR 425
BL27, 39, art.16 of BORO
(i) Whether the right to freedom of expression was engaged (the
“rights not applicable” argument); §20 –Govt
(ii) Whether the court should refrain from interfering with the internal
regulation of the admittance and conduct of persons within LegCo (the
“non-intervention” argument); §22 – Govt
(iii) Whether AI s. 11 was invalid as it was legally uncertain and did not
constitute a restriction “prescribed by law” (the “prescribed by law”
argument) §19 -- Advocate
(iv) Whether AI s. 12(1) was unjustifiably wide in banning all forms of
display of sign, message or banner regardless of its purpose, nature,
manner and its impact on the public order in LegCo (the “blanket
prohibition” argument). §18, -- Advocate
- Appellant displayed t-shirt, poster & chanted slogan in public gallery
of LegCo during subcommittee meeting
- Convicted for displaying sign and message in public gallery and failed
to behave orderly in LegCo → Administrative Instructions.
Issue(i):
1. govt: similar to priv property, hence proportionality test
inapplicable when it’s government premises to which the
general public has not been given free access. §24
2. CFA at §29: rejected govt argument for 1) subjugate
fundamental constitutional rights to property interests
BL is supreme, everything is subject to BL, to say your common law
right (property interest) can intrude constitutional right  flip the
hierarchy.
 fundamental rights not trumped by property rights. 2) failed to
recognize that proposed location of a demonstration  intrinsic
dimension of the right so exclusion was a restriction §44 hence
subject to proportionality test. (But special weight may be given to
private property. - rationale to give account to property rights:
private property with huge public functions  private village ect… how
to ensure that certain private bodies can still act consistently with
26
constitutional rights) §58, 69) §36, §38 sum of hardline/intermediate
line tests. §39: fundamental rights
§48: list the locations where freedom of expression shall be
excluded. (CFA said better to understand as ‘restricted’)
Conclusion: §70
Issue (ii): §71CFA: the CFA considered that regulation of the admittance and conduct
of strangers who wish to enter the precincts of LegCo fall outside the
category of managing LegCo’s internal processes so that the nonintervention principle does not apply. §72-74, citing Leung Kwok Hung,
and even if it fell within the internal management category  the
principle of non-intervention itself is subject to constitutional
requirements §74. (Court also duty-bound to examine so long the
provisions set restrictions to constitutional rights§75)
Issue (iii): §76- (pp71)
CFA: The CFA considered that when AI s. 11 is properly construed in the
light of its context and purpose, it is impossible to say that it lacks legal
certainty. The CFA emphasized that s. 11 does not simply penalize a
failure to “behave in an orderly manner” without more. It penalizes
only persons, who enter or are within the precincts of LegCo, and fail
to “behave in an orderly manner” §80 (purpose is to keep order). The
section also requires compliance with any direction given by a LegCo
officer “for the purpose of keeping order”. The CFA held that the
section is self-evidently concerned with keeping order in those
precincts. Moreover, the CFA pointed out that the clear purpose of AI
s. 11 is to set a standard of orderly behaviour on the part of visitors
congruent with LegCo’s institutional and social importance§82. §91:
nothing uncertain about s.11.
Prof. interp: [total prohibition?] slides: 3 ors: cut+paste the every
clause . Have 1st adopted a creative reading of the law  flies against
the literal reading of the rules. Sometimes courts can do 2 things: 1)
law is disproportionate 2) in this case, law past stage 3 cuz the law only
bans you if you wearing this t-shirt to behave certain conduct
Issue (iv): appellant argued that AI s. 12 is unjustifiably wide. (blanket
prohibition argument) §101The CFA disagreed and held that AI s. 12 does not simply make “all
forms of display of any ‘sign, message or banner’ a criminal offence”.
On the contrary, AI s. 12 only makes display of “sign, message or
banner” in a press or public gallery a criminal offence §103, limited
scope. The prohibitions are aimed at displays which would entail the
risk of disorder in public galleries and which may disturb LegCo sittings
and the rights of others observing the proceedings §105, (purposive
construction)
§114: ordre public v. public order (former is wider concept)
§115: rationally connected with aim (yes)
§116: necessity test:
Held
Appeal dismissed. The CFA considered that AI s. 12 has a limited scope,
applying only to persons who are in a press or public gallery. It targets
intrusive behaviour to protect good order during a LegCo meeting.
Moreover, the Appellant was not prohibited from exercising her
freedom of expression in other venues. AI s. 12 is a proportionate and
valid restriction on the right to freedom of expression.
27
Further information
Case
Key
Rule
Issue
Fact
Reasoning
Held
Secretary of Justice v Ocean Technology, [2008] HKEC 2114
BL27, art.16,BORO,
Whether the statutory licensing regime prescribed by the Telecom Ord
is unconstitutional
- D broadcasted without a license → charged with offences contrary to
Telecommunications Ordinance
- D argued licensing scheme was unconstitutional so the offences were
unconstitutional (didn’t apply for the license while broadcasting, then
applied, then got rejected
§1, req for license not an impermissible restriction on freedom of
expression.  otherwise, risk of interfering with vital emergency
services and Civil Aviation Dep. also interferes rights of listeners §2.
§18: important to notice that the case is not about the
reasonableness of the govt decision, but whether the offences
constituted ss.8 and 20 of the Ordinance is unconstitutional
§ 22: deliberate omission of art.10 of the ECtHR in art.19 of the ICCPR.
(about req for licensing)
§61: Magistrate has no jurisdiction to consider the constitutional
challenge to the licensing scheme of the Ord
§62: the Ord, when properly constructed, doesn’t allow D to impugn
the constitutionality by way of defence, can only do this through
judicial review.
§65: application is lawful
§67: while freedom of expression extends to the right to receive and
impart it, the licensing scheme itself can’t be viewed as impermissible
restriction societal justification <Red Lion Broadcasting >
< R v Wicks > §79:
Appeal allowed, case remitted to the Magistrate （发回重审）
→Whether D can raise unconstitutionality as defence depends on
statutory construction
→On the facts: constitutionality of the offence did not depend on
legality/validity of licensing regime; not an essential element of
offences created under the provisions →To challenge licensing
scheme, must bring separate judicial review action.
Further information
Case
Key
Rule
Issue
Fact
Chee Fei Ming v Director of Food and Environmental Hygiene
(a) Whether s.104A(1)(b) of the Ordinance satisfies the “prescribed by
law” test (“the Prescribed by Law Issue”); and
(b) Whether s.104A(1)(b) satisfies the proportionality requirement by
reason of the criterion based on content-screening (“the
Proportionality Issue”).
- X = Falun Gong (FLG) practitioners; “static demonstrations” at various
public locations, gathering in front of banners, placards or billboards.
28
- s.104A(1)(b) of the Public Health and Municipal Services Ordinance:
must first obtain written permission from the Director of Food and
Environmental Hygiene before displaying publicity materials on
Government land within the Director’s purview Contravention =
offence under s.104A(2)
- Director delegated power to the Lands Department which processed
applications for approval in accordance with a published Management
Scheme.
- Sites of the FLG static demonstrations were non-Management
Scheme designated spots, no application for permission made
- Department issued warning letters → ignored → enforcement action
to remove the materials
Reasoning
Even more obscure than LKH: no grounds provided. Even far vaguer
and more intrusive than LKH. But was good enough for CA: common
law/use JR to clarify. Both positions are logical, but just not the same
position as in LKH. In exam, can argue CFA position is the higher law,
but CA in CFM may also be valuable.
Issue (i):
5.Under the “prescribed by law” requirement, the law must be
adequately accessible and with sufficient precision. In this case there
was no issue on the accessibility and the focus was on the
foreseeability. (paras. 23-26)
Foreseeability and safeguards against arbitrary interference
6.The statutory scheme confers a discretion on the Director but such
provision by itself does not infringe the “prescribed by law”
requirement provided that the law indicates with sufficient clarity the
scope of any such discretion and the manner of its exercise and
provides adequate and effective safeguards against abuse. (para. 34)
“The law”: a holistic approach
7. When examining “the law”, the Court would adopt a holistic
approach and have regards not only to the statutory provision in
question but also the common law and even published policy and
guidelines: (para. 37)
(a) Common law is recognized to be a source of law in Hong Kong and
there are
ample authorities for taking common law into account in assessing in a
particular case whether the foreseeability requirement under
“prescribed by law” is satisfied. (para. 39)
(b)Further, the holistic approach also examines how the law is actually
administered, including the effectiveness of judicial supervision
through judicial review. (para. 44)
(c) So long as there is sufficient guidance in the published rules or
policies setting out the boundaries of an administrative discretion, it
would provide an adequate basis for working out the precise outcome
in a particular case by way of judicial review. (para. 45)
The degree of precision
8. Section 104A(1)(b) is concerned with a statutory power applicable to
a wide range of variables (including public spaces and a large variety of
potential users and purposes for which posters and bills may be
displayed or affixed and their locations). In such circumstances, it is
inevitable that the statutory provision has to be worded in a general
manner. (para. 58)
29
Certainty as to the scope of the discretion and the manner of its
exercise
9. The scope of the discretion is to be determined by reference to the
statutory objectives in accordance with the well- established principle
of Padfield1. As regards the manner of its exercise, it is to be guided by
the Management Scheme. (para. 59)
10. The statutory objects do set sufficient guide for proper control of
the exercise of discretion by the court to prevent arbitrary interference
with the display of banners or poster including such display for a static
demonstration of habitual regularity or permanence. (para. 65)
11. The interference with the right of demonstration is limited. In the
assessment of the constitutional compliance of a legal restriction on
the exercise of fundamental human rights, the extent of restriction can
be relevant. In the present case, the discretion would not affect the use
of banner or poster in a mobile demonstration. This is not a case where
the static demonstration at a regular location or site carries with it
symbolic meaning in the exercise of the right of demonstration. (para.
66)
12.Content-screening can only be permitted insofar as it is necessary
for the furtherance of the statutory objectives so the width of the
power could not be a reason for holding that the discretion is not
prescribed by law. (para. 67)
13.Management Scheme is the primary mode of control exercised by
the authority (delegating the power to the Director of Lands) under
Section 104A(1)(b ). At the same time, as the statute itself does not
limit its application to designated spots and has no provision for
eligibility criteria, the authority must have a residual power to grant
permission in cases falling outside the Management Scheme. However,
given the residual nature of such power, the authority would be
expected to exercise such power paying due regard to the policy
considerations embodied in the Management Scheme with necessary
modifications in respect of applications that do not fall within such
scheme. (para. 73)
14.With guidance from the Management Scheme and “the law” (under
the above holistic approach), and the possibility of the guidance from
courts by judicial review, the exercise of the residual discretion by the
authority on a case by case basis is not arbitrary.
The Proportionality Issue
15.The Applicants argued that there was no limitation under s. 104A on
the restriction of the rights of demonstration and freedom of
expression and it provided no guidance on what the decision maker
would take into account in deciding whether or not to grant approval.
They alleged that the decision maker would be at liberty to impose
conditions, including content-screening, on applications. (para. 86)
16. The CA rejected these arguments for the following reasons:
(a) Permission under 104A(1)(b) is only required if a demonstrator
occupies a spot on some permanent and habitually regular basis. (para.
87)
(b) Second, the discretion cannot be exercised in an arbitrary manner:
the exercise of residual discretion must be guided by the statutory
power and criteria set out in the Management Scheme. (para. 88)
17.In respect of the Applicants’ argument that the avoidance of
environmental nuisance is not a legitimate purpose for the restriction
of rights, the CA held that the objectives of the statutory power was
not restricted to avoidance of environmental nuisance, but also
included controlling to promote the orderly and proper use of public
30
Held
place which fell within the scope of public order (ordre public). (paras.
91-92)
18.In any event, there is no effective proportionality challenge by
reference to the content-based screening criteria set out in the
Management Scheme and the CA was satisfied that the criteria did not
entail political censorship. (para. 99)
19. For the above reasons the CA rejected the proportionality
challenge.
The Respondents appealed to the Court of Appeal (“CA”). In brief, the
Respondents appealed against the CFI’s ruling on the “prescribed by
law” point. The Applicants also cross-appealed on the proportionality
challenge. By the judgment of 16 December 2019, the CA allowed the
Respondents’ appeals and dismissed the Applicants’ cross appeals.
Further information
Article
“Collateral Challenges in Criminal Proceedings: Mayday for
Citizens Radio”
Central Argument
Conclusion
Roadmap
Evidence
The Court of Appeal in Secretary of Justice v Ocean Technology has
unfortunately cast a pall over the future of collateral challenges in
Hong Kong
criminal proceedings, contrary to the current trends and development
of the
English common law. It has conflated the criminal plea of a general
defence with
the constituent elements of a statutory offence; it has failed to
consider a key CFA
decision in Leung Kwok Hung and has misconstrued House of Lords
precedents
by examining whether the impugned statute authorised a collateral
attack when it
was the validity of the statute itself that was being challenged.
The Court of Appeal had unfortunately cast a pall over the future of
collateral challenges in Hong Kong criminal proceedings, contrary to
the current
trends and development of the English common law.22 It had
conflated
the criminal plea of a general defence with the constituent elements of
a
statutory offence; it had failed to consider a key CFA decision and had
misconstrued House of Lords precedents by examining whether the
impugned
statute authorised a collateral attack when it was the validity of the
statute
itself that was being challenged; and it had put the statutory cart
before the
constitutional horse by mischaracterising our constitutional rights. One
can only hope that the Court of Final Appeal can someday heed this
(possibly faint) distress signal and salvage the law from the current
wreck.
CFA’s 1st argument: First, the Court of Appeal argued that “validity of a
negative licensing decision is not … an essential ingredient of the
offence.”  Yap: wrongly conflated two
distinct legal concepts, the ingredients of an offence
31
with a defence to an offence. Certain defence still applicable despite
the ingredients of the offence have been proved. Eg, self-defence,
crime prevention, necessity… The accused argued that
unconstitutionality was one of such defence [actually persuasive]. 
hence irregular for CA to argue that this defence failed cuz elements of
defence can’t be found in the ingridients of the offence. Also, Quietlynn
application is peculiar for the legality of the license was an ingredient
of the offence in Quietlynn. Inconsistent understanding of CA.
CFA’s 2nd argument against collateral challenge: not open
to a defendant to raise by way of defence the legality of a licensing
decision
or scheme, as this would be “contrary to the clear policy of the
legislative
scheme as a whole  applies R v Wicks,  Yap: R v Wicks
distinguished cuz challenge the legality of the administrative order or
byelaw. However in Ocean, issue is whether to allow a defence
that impugned the constitutionality of the statute itself  how could
you use the statute itself to prove it’s constitutionality when the statue
is being challenged?
Reflections
CFA’s 3rd argument seemed to imply that there was no breach
of the Basic Law as no constitutional right was engaged at all.  CA
didn’t take a generous approach and failed to consider the CFA
decision in Leung Kwok Hung 
in Leung: First, the CFA did not forbid the accused from impugning the
constitutionality of the licensing procedure as provided under the POO
by way of defence when they were criminally charged under the said
Ordinance. Furthermore, the accused was partially successful in
challenging the
constitutionality of the powers vested in the Commissioner of Police to
ban
or restrict notified public processions even though in their case, they
had
not even notified the police in the first place. Finally, in deciding
whether
it was appropriate to determine the constitutionality of the notification
scheme, the CFA did not examine the statutory context of the POO to
see whether it was the legislative intention that the legality of a
notification decision or an aspect of the notification scheme was an
ingredient of
the offence. In other words, the CFA did not examine whether the
statute
in question authorised a collateral attack when it was the validity of the
statute itself that was being challenged. Instead, in determining
whether
the statutory provision was constitutional, the CFA discussed whether
the
restriction imposed by the notification scheme was “prescribed by law”
and “necessary” in a democratic society.
An absence of an element from the offence does not necessarily
prevent the accused from raising challenge against the offence. When
assessing the constitutionality of a provision, the court needs to take
an objective test, rather than interpreting the provision itself.
32
Discussion Questions:
1. Under the Bill of Rights Ordinance, what are the legitimate interests that would justify any governmental
restriction on the freedom of expression?

Art.16 of BORO: (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall
have the right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice. (3) The exercise of the rights provided for in paragraph (2) of
this article carries with it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary - (a) for respect of the
rights or reputations of others; or (b) for the protection of national security or of public order (ordre public),
or of public health or morals.”
2. In Ng Kung Siu, what was the legitimate ground the CFA relied on to justify the ban on flag desecration? Why did
the CFA determine that this law was necessary?


1) need to consider the legislature 2) only provide limited restriction, ban one mode of expressing
(desecration of national flag) but not others.
Public order: what was necessary for the protection of general welfare  here the restriction was for the
protection of public order… §6 HK now a new constitutional order post-handover. Hence, the legitimate
societal interests in protecting the national flag, and legitimate community interests in the protection of the
regional flag, were interests which were within the concept of public order.  formed part of the general
welfare and collective interest.
3. In Koo Sze Yiu, why did the CFA refuse to re-consider the correctness of Ng Kung Siu? What was occurring in Hong
Kong at the time of this CFA hearing?


§12(1), no need to revisit cuz 1) no basis to suggest that the societal interest in protecting the flag had
changed since NKS as so to make it arguable that the interest couldn’t fall in public order. 2) ref to “time,
place, and circumstances” only a ref to part of the legal test, not a general invitation to revisit the validity of
Court decisions from time to time.
Pp.41 “when Ds were protesting on Apr 1 2012, at the time the offence was said to be committed, they were
themselves urging the faithful implementation of OCTS”  suggesting that societal interest not changed as
they claimed.
4. What is the “rights not applicable” argument that the government was relying on in Christine Fong? Why did
the CFA reject this argument? What did the CFA say about the constitutional right to demonstrate/ speak in air
traffic control towers, judicial chambers, etc? What about the constitutional right to demonstrate in the private
property of others? How did the CFA limit the regulatory reach of the impugned Administrative Instructions
Section 12(3)? Does the CFA’s reading of Section 12(3) make textual sense?



govt: similar to priv property, hence proportionality test inapplicable when it’s government premises to
which the general public has not been given free access. §24
air traffic- list the locations where freedom of expression shall be excluded. (CFA said better to
understand as ‘restricted’)
apply proportionality w/ differences. Rather address this issue with proprotinoality rather than say that
no such right at all (prison analogy). But the constitution will apply with different rigor (more restrictions)
in the prison.
5. In Ocean Technology, the Court of Appeal examined the statutory context of the Telecommunications Ordinance
to decide whether the statute authorized a collateral challenge to the validity of the Ordinance. Were they really
applying the House of Lords decision in R v Wicks? Can Wicks be distinguished? Is Ocean Technology consistent with
CFA decision in Leung Kwok Hung?
33


Pp.98: R v Wick, §80: Nicholls identified 2 avenues: 1) impugned order was not authorized by the statute. 2)
invalid cuz the decision-making process was vitiated on public law grounds
o §81: Hoffman LJ: correct approach is statutory construction. J needs to rule upon the validity of the
act. Ultra vires defence (越权抗辩)  no general theory.
o § 82: in R v Wick : real question is the meaning of ‘enforcement notice’ in the relevant provision: 2
possible meanings: 1) notice not liable to be quashed on any of the standard ground in public law 2)
notice issued by the planning authority has not been quashed on appeal/judicial review  thinks
can be understood either way, but true construction is 2.
In both Wicks and Boddington, the House of Lords were considering whether to allow a criminal defence
that sought to challenge the
legality of the administrative order or byelaw, ie the accused were arguing
that the respective byelaw / administrative order was ultra vires the enabling
statute in question. Naturally one has to construe the statute, the order /
byelaw’s enabling legislation, to decide whether the statute authorised a
collateral challenge, to the order or subsidiary legislation in question, by
way of defence to a criminal charge. However, on our facts in Ocean Technology, the Court of Appeal was
considering whether to allow a defence
that impugned the constitutionality of the statute itself, ie whether the statute was ultra vires the Basic Law.
it was illogical for the courts
to examine the very instrument whose constitutionality or legality was being challenged to decide whether
that instrument authorised a collateral
attack on itself
Inconsistent with LKH cuz [check Yap’s article]
First, the CFA did not forbid the accused from impugning the
constitutionality of the licensing procedure as provided under the POO
by way of defence when they were criminally charged under the said Ordinance. Furthermore, the accused
was partially successful in challenging the
constitutionality of the powers vested in the Commissioner of Police to ban
or restrict notified public processions even though in their case, they had
not even notified the police in the first place. Finally, in deciding whether
it was appropriate to determine the constitutionality of the notification
scheme, the CFA did not examine the statutory context of the POO to
see whether it was the legislative intention that the legality of a notification decision or an aspect of the
notification scheme was an ingredient of
the offence the CFA discussed whether the
restriction imposed by the notification scheme was “prescribed by law”
and “necessary” in a democratic society. [constitutional argument succeeded, stood conviction only because
he …]
prof. said the CFA may realize this fault so since then they only apply “prescribed by law” and
proportionality. Prof. said he didn’t say it’s bad outcome, but the reasoning is not logical and shall apply the
proportionality test. Court must allow the defence of the accused.
6. In deciding whether a governmental rule is “prescribed by law”, the CA in Chee Fei Ming would now adopt a
“holistic approach”. What is this “holistic approach”? Is this consistent with Leung Kwok Hung?



Holistic approach: When examining “the law”, the Court would adopt a holistic approach and have regards
not only to the statutory provision in question but also the common law and even published policy and
guidelines: (para. 37)
[not sure] Even on the hypothetical question, the CA’s approach is in fact contrary
to its earlier decision in Chee Fei Ming v Director of Food and
Environmental Hygiene (No 2) [2016] 3 HKLRD 412:
(1) in that case, the applicant challenged the constitutionality of the
34
relevant authority’s power to remove materials displayed on
Government land without permission; and
(2) the applicant did not apply for such permission. However, the CA
granted the applicant leave to apply for judicial review mounting a “systemic challenge” stemming from the
“prescribed by law”
requirement in respect of the lack of certainty on the criteria for
permission under the statutory provision. The CA held at §§74-75
that the absence of such application cannot be a hurdle.
7. Does Article 20 of the National Security Law prohibit a shop from selling a pro-Hong Kong independence
memorabilia?

Yes, art.20(1):
“A person who organises, plans, commits or participates in
any of the following acts, whether or not by force or threat of force, with
a view to committing secession or undermining national unification shall
be guilty of an offence:
(1) separating the Hong Kong Special Administrative Region or any
other part of the People’s Republic of China from the People’s Republic
of China;”  not by force, separate HKSAR from PRC
8. Does Article 22(3) of the National Security Law prohibit criticism of any HKSAR government policy if the policy is
shelved or its implementation seriously affected as a result?

No, 以“武力，威胁使用武力或者其他非法手段” “旨在颠覆国家政权”
“A person who organises, plans, commits or participates in
any of the following acts by force or threat of force or other unlawful
means with a view to subverting the State power shall be guilty of an
offence”  criticism is not, as provided in < Ng K Siu… > check the slides for detail!!!
9. Is the intentional blocking of MTR train doors from closing considered “sabotage” under Article 24(3) of the
National Security Law, if one does so in pursuit of a political agenda?
Article 24 A person who organises, plans, commits, participates in
or threatens to commit any of the following terrorist activities causing or
intended to cause grave harm to the society with a view to coercing the
Central People’s Government, the Government of the Hong Kong Special
Administrative Region or an international organisation or intimidating the
public in order to pursue political agenda shall be guilty of an offence:
(1) serious violence against a person or persons;
(2) explosion, arson, or dissemination of poisonous or radioactive
substances, pathogens of infectious diseases or other substances;
(3) sabotage of means of transport, transport facilities, electric power
or gas facilities, or other combustible or explosible facilities;

Sabotage defined in Cambridge Dictionary:
1. the act of damaging or destroying equipment, weapons, or buildings in order to prevent the success of
an enemy or competitor:
2. the act of intentionally preventing the success of a plan or action:
“intentional blocking of MTR train doors from closing” with a political agenda may fall into the 2nd category?
10. Does Article 29 of the National Security Law require the offender to know that his or her sources of funding is
foreign in nature?
35

No, 直接或间接接受资助 “directly or indirectly receives instructions, control, funding or other kinds of
support from a foreign country or an institution, organisation or individual”
11. Do the hypothetical question. (on P3 of the DM)
Argue for the advocate  should take the reasonable necessity test instead of the manifest test.
Reasonable necessity
NSL： some ppl argue it’s only 4 crimes, but if you read the law, each crime is phrased broadly and potentially
problematic.
Art.20, NSL: potentially the law becomes a huge restriction on one’s right to free speech.
Art.24, terrorism: some of them, “sabotage”?  pressing the emergency buttom of MTR?
Art. 29: foreign collusion:
[NSL not in the exam]
Seminar 10: Right of Equality
Readings:
1. Kelley Loper, Chapter 28, Johannes Chan and CL Lim (ed), Law of the Hong Kong Constitution (3rd edition, 2021)
(not included in DM)
2. W v Registrar of Marriage, (2013) 16 HKCFAR 112
3. QT v Director of Immigration, [2018] HKCFA 28
4. Leung Chun Kwong v Secretary for Civil Service, [2019] HKCFA 19
5. MK v HKSAR, [2019] HKCFI 2518
6. Fok Chun Wa v Hospital Authority, (2012) 15 HKCFAR 409
7. Ng Hon Lam Edgar (No 2) v Hong Kong Housing Authority, [2021] HKCFI 1812
8. Sham Tsz Kit v Secretary for Justice, [2022] HKCA 1247
Article
Ch.28: Right to Equality and Non-Discrimination
Main Point
1)Equality and non-discrimination are equivalent concepts.
3) Discrimination occurs when unjustifiable classifications or distinctions are
made on the basis of certain identifying characteristics. If court identifies the
existence of a prima facie distinction  burden of proof shift to the
government
4) test of necessity, 4th stage required
5) unlike the proportionality test applied to other constitutional rights, the
courts will not first determine a violation of a right and then justify the
breach by balancing it w/ other interests. If a distinction can be justified 
right to equality wouldn’t have contravened in the 1st place.
S.2: Sources of A Constitutional Right to Equality
a) BL, BORO and ICCPR:
BL25: “all HK resident shall be equal before the law”
Arts.1, 22 of BORO == arts.2(1), 26 of the ICCPR
36
Art.22 of BORO: (broader than art.1 since not limited to rights provided for in
the Covenant, provides for an autonomous, free-standing right, 3 elements 1)
equality before the law, 2) equal protection of the law 3) protection from
non-discrimination on a proscribed ground.
BORO 22: other status: make the prohibition an open list. More consistent
with the framer’s intent to give BORO a wider reading so as to give effect to
the intention of the writing of “othe
list which could evolve with time.
Fok Chun Wa: NEP, residency status differentiation. The court decided to
draw a distinction on differentiation: things that goes to the heart of one’s
core-values  Court rarely find this acceptable cuz they are fundamental
societal values. On the other hand, courts give more leeway to the
government if not fundamental. [para77, add details from the slides]  Court
can’t apply proportionality test all the time [tho at the time Hysan not come
yet], cuz it’s heavy interference with the govt.  esp. when facing scarce
resources/limited fund.  no discrimination in this case.
b) anti-discrimination statutes: 4 ordinances, constitutional
equality guarantees less specific and more fluid compared to
statutory provisions  J applies a justification test.
★S.3: Concepts of Equality
Formal Equality: Equality is aimed at ensuring procedural fairness. “like
should be treated alike”
Limitations: formal equality doesn’t consider power imbalances b.t. groups
(gender, race…)
Substantial Equality: require states to take active measures to address actual
situations of disadvantages and marinalisation
HK values both.
S.4: Meaning of Discrimination, the justification test and the prohibited
grounds
a)meaning of discrimination: Courts adopt the formal principle of ‘equal
treatment’
<Yau Yuk Lung> : equality before the law was a fundamental human right and
was in essence the right not to be discriminated agasint.
CFA in <QT> : 3 forms of unfairness amount to unlawful discrimination: 1)
when like cases are not treated alike 2) when unlike cases are treated alike
when they should be treated differently in order to correct de facto
inequality 3) indirect discrimination “where the measure complained of
appears neutral on its face but is significantly prejudicial to the complainant
in its effect .
Justification test: refined by CFA in < Yau Yuk Lung > , later elaborated in <
QT>.Purpose: used to determine whether distinctions/legislative
classifications breach the equality guarantee.
3 steps test: pp1046 [add this later]
Special measures: justifiable distinctions are not discriminatory.
Prohibited grounds: starting point: non-exhaustive list in arts.1(1) and 22 of
HKBORO, including race, colour, sex, language, religion, political… rigor of test
based on “fundamental notions of dignity” and whether the matter falls
within the sphere of social and economic policy.
37
Danger of this approach: may shift the focus of analysis from the merits of
the justification to a technical categorization of the grounds of differential
treatment.
Conclusion
Framework of interpretation BL/BORO largely based on international
standards. Justifiable distinction can’t be characterized as a breach of the
right to equality and amounts to a special measure that is not an exception to
equality but part of the full realization of equality.
Case
Key
Rule
Issue
W v Registrar of Marriage, (2013) 16 HKCFAR
Fact
Reasoning
变性手术 结婚权
Whether Corbett principle, that procreative intercourse was an essential
constituent of marriage and therefore that biological factors (fixed at birth)
were the only appropriate criteria for assessing the sex of an individual for
the purpose of marriage.
W = post-operative male to female transsexual
Want to marry male partner but refused ∵ not a woman under s 40 of
Marriage Ordinance i) Misconstrued the MO
ii) MO provisions unconstitutional having regard to right to marry BL37
and/or BOR 19(2)
Goodwin, ECtHR: post-operative transsexuals entitled to marry in their
acquired gender.
§2. BL were living instruments intended to meet changing needs and
circumstances. < Ng Ka Ling >
§.3: in present day ulti-cultural HK, there had been significant changes such
that procreation was no longer regarded as essential to marriage. No
justification for regarding the ability to engage in procreative sexual
intercourse as an essential element of marriage.
§4. S.20(1)(d) and s.40 unconstitutional because they contain Corbett criteria
that is considered too restrictive in the present context.
§5: the provisions also unconstitutional for impairing the very essence of the
right to marry.  W has accepted irreversible surgery  prevent her from
marrying at all.
§7. Remedial interpretation: s.20(1)(d) of MCO and s.40 of MO must be read
and given effect to include a post-operative male-to-female transsexual
person into the words “woman” and “female”, consistent with BL37 and
art.19(2) of HKBORO,
§8: left open as to whether a transsexual who had undergone less extensive
treatment than full gender reassignment surgery might also qualify.
§10: right to marry a human right  deny of such right was to deny their
humanity.
Seems that all 3 arguments from W also works for MK (same-sex marriage)
[add more from the slides, §85-89-116]
Dissenting (§159-164):Courts should not always update the constitution.
meaning of the words “man” “woman” contended for by W was diff from
their ordinary meaning.  this is amounted to a radical change to the
traditional concept of marriage and a departure from the domestic law.
Marriage was considered an important social institution as the basis of
38
family, which was an essential unity of society. Unrealistic to consider
marriage entirely unconnected with procreation.
§14: SRS involves very extensive and irreversible changes to a person’s
physical state
Relevant statutory provisions:
(pp.23): §21. s.40 of MO: voluntary union for life of one man and one woman
to the exclusion of all others,
s.20(1)(d) of Matrimonial Causes Ordinances (MCO): marriage shall be void
on any of the following grounds only… that the parties are not respectively
male and female.
Question of Statutory Construction:
§25: question is who qualifies as a “woman” for the purpose of marriage.
§28-31: Corbett criteria. : essential features of the institution of marriage 
starting point in Hyde: marriage is essentially a relationship b.t. man and
woman”  heterosexual intercourse is a determining constituent of that
relationship cuz it’s the basis for procreation ( in line with Christian marriage
notion)
§35 (pp.26): biological factors as the only appropriate criteria, fixed at birth
§43: (pp29): Nullity of Marriage Act 1971: provided Court statutory powers
HK legislature’s rationale to adopt Corbett:
Pp30: §48: statutory intent is that the C criteria shall apply in HK as well. 
§49: if Court solely concerned statutory construction  no alternative but to
hold that W can’t be treated as a “woman” for the purpose of marriage.
Pp31: ordinary meaning of “woman”, in its legal definition,
Pp32: §54: Registrar: inseparable relationship b.t. consummation and a valid
marriage.
Court: §55: not accepting the existence of non-consummation as a ground for
avoiding a marriage.
Legislature:
Pp33
Constitutionality of MO/MCO:
Pp33
§58: BL37 and art.19(2) of BORO:
Also art.12 of ECHR
Nature of the constitutional right to marry:
§65: marriage subject to legal rules, but such rules must be consistent with
the constitutional right to marry and must not operate to impair the every
essence of that right < Goodwin >
39
Also recognized by HoL in < R (Baiai) >
[then reviewing the evolution of challenge against Corbett, all failed till
Goodwin, pp39.
Pp43: Registrar’s main argument: 1) legislative intention should be consistent
with Corbett, 2) no need to extend the meaning of ‘woman’ to include postoperative transsexuals with the absence showing a social consensus in
HK/international consensus. 3) different constitutional roles  court should
refrain from intervening such an issue and should leave it to the legislature.
§84: Court not persuaded: BL and BORO are living instruments intended to
meet changing needs and circumstances. Clear that significant changes which
call into question Corbett criteria.
§85: changes to the nature of marriage as a social institution. < Bellinger >
marriage has become a state into which and from which ppl choose to enter
and exit. Redefine marriage as a contract for which the parties elect but
which is regulated by the state.  procreation no longer a precondition for
entering a marital contract. §86.  in contemporary society, the institution
of marriage has evolved so that the importance of a Christian marriage has
much diminished.
§89: in present-day, multi-cultural HK: procreation no longer regarded an
essential to marriage.
Reconsider the Corbett criteria
Pp46
§91: medical advance and changed societal attitudes.
Pp48: Psychological and social factors as criteria :
§99: pseudo-type of femininity: failed to recognize the fundamental
importance of the individual’s psychological compulsion as a determinant of
her sexual identity.
Pp49: inadequacy of Corbett:
§103: Corbett too restrictive and Court needs to consider all the
circumstances: bio/psycho/social relevant to assessing the individual’s sexual
identity at the time of the proposed marriage not fixed at birth.
Relevant statutes unconstitutional for: (pp51)
§108: impairing the very essence of the right to marriage. §109: preclude W
from marrying a man  basically denying her right to marriage at all given
that she has accepted an irreversible SRS.
Consensus pp52:
§114: 1) different situation of HKSAR v ECtHR, 2) §§115-116: consensus
argument inimical in principle to fundamental rights.
Conclusion as to construction and constitutionality:
Pp54: §117: Registrar not misconstruing MO/MCO. But Corbett criteria
incomplete due to lack of consideration on psychological and social elements
of a person’s sexual identity §118.  provisions inconsistent with
constitutional right to marriage and hence unconstitutional.
40
Pp55: relief.
Pp62: Conclusion.
Held
Further
information
Case
Key
Rule
Issue
Fact
Reasoning
Pp74, QT v Director of Immigration, [2018] HKCFA 28
5. Given that same‐sex marriage or civil partnership is not legally recognized
in Hong Kong, whether this is an absolute bar to discrimination claim on
sexual orientation when the difference in treatment is based on marital
status in all contexts?
6. Whether immigration falls within the “core rights and obligations” unique
to a marriage (and thus no justification for the difference in treatment is
required)?
7. What is the standard of scrutiny to be applied by the Court and whether
the Director has justified the difference in treatment under the Policy?
1. The Applicant was a British female national who had entered into a civil
partnership in the United Kingdom with her same‐sex partner. The Applicant
challenged the Director’s decision of refusing to grant her a dependant visa
to stay in Hong Kong as the “spouse” of her same‐sex partner who had
been granted an employment visa to work in Hong Kong (“the Decision”).
The Director refused the Applicant ’ s dependant visa application on the
ground that under the dependant policy (“the Policy”), “spouse” meant
a party to a marriage between a man and a woman as recognized under the
Hong Kong law.
2. The Applicant’s challenge by way of judicial review was dismissed at the
Court of First Instance (“CFI”). The CFI held that the difference in treatment
was justified because the Applicant (who was considered as “unmarried”
since same‐sex marriage/civil partnership is not recognized in Hong Kong)
and married persons were in a different position. In the immigration context,
the Director was entitled to draw a bright line on the basis of marriage when
balancing the needs of (1) attracting foreign talents to Hong Kong and (2)
maintaining effective and stringent immigration control.
3. The Court of Appeal (“CA”) allowed the Applicant’s appeal and overturned
the CFI’s judgment. The CA held that it was open to the Applicant and her
partner to compare themselves to a married heterosexual couple in the
context of immigration, which fell outside the “core rights and obligations”
unique to a marriage. The CA also found that those same‐sex couples whose
relationship was legalized in the form of a civil partnership or same ‐sex
marriage could similarly prove their relationship like married heterosexual
couples and thus it was not rational to exclude them from the Policy by reason
of administrative workability and convenience. The Director failed to justify the
less favourable treatment to same‐sex couples under the Policy and thus it
amounted to indirect discrimination based on sexual orientation.
8. The CFA restated the principles that the Director has very wide powers of
immigration control under Article 154 of the Basic Law and section 11 of the
Immigration Ordinance (Cap. 115); however, when implementing the Policy,
the Director has to exercise the powers in accordance with the principle of
equality, and for the purpose for which they are given, as well as fairly and
rationally, reflecting the rule of law. (paragraphs 18‐19)
41
10. The CFA rejected the Director’s primary argument that differential
treatment between same‐sex civil partners and a married couple under the
Policy required no justification. The CFA observed that using the challenged
differentiating criterion of marriage as its own justification cannot be
permitted in view of the circularity in this argument. The CFA also observed
that the Director’s assertion that an obvious difference exists between
marriage and a civil partnership rests on shaky foundations and is untenable
as a basis for precluding scrutiny of the Policy’s justification. (paragraphs
38‐52)
11. The CFA rejected the CA’s approach that certain “core rights and
obligations” unique to marriage exist such that differential treatment
between married couples and unmarried couples (including same‐sex
couples) in those areas required no justification. The CFA considered such
approach circular, subjective and gave rise to fruitless debate as to what
would or would not fall within the “core”. The CFA however made it clear
that a person’s marital status may be relevant as a condition for the
allocation of rights and privileges, and the real question was whether the
difference in treatment based on marital status could be justified as fair and
rational. (paragraphs 62‐76) overruled CFI’s core right test.
12. The Director’s second argument based on policy justification, i.e. that the
Policy was justified because it served the legitimate aims of encouraging
talents to work in Hong Kong and at the same time maintaining strict
immigration control by drawing a bright line based on marital status which
was legally certain, administratively workable and convenient, was also
rejected by the CFA. While it was accepted that these were legitimate aims,
the CFA agreed with the CA that the Policy was not rationally connected to
the said legitimate aims. The Policy was counter‐productive in attracting
foreign talents (who could be straight or gay) as the ability to bring in
dependants was an important issue for persons deciding whether to move to
Hong Kong. Nor did the Policy promote the legitimate aim of strict
immigration control by excluding persons who were bona fide same‐sex
dependants of the sponsors granted with employment visas. The Director’s
aim of facilitating administrative workability and convenience by drawing a
bright line was also considered irrational, as the Applicant and her same‐sex
partner could just conveniently produce their civil partnership certificate.
(paragraphs 90‐99)
13. The CFA found that the appropriate standard of review would be case‐
specific and in the present case would be the standard of reasonable
necessity. However, the CFA considered it unnecessary to consider whether
the Policy went beyond reasonable necessity as it had found that the Policy
was not rationally connected to the Director’s legitimate aims. (paragraphs
100‐109)
Govt didn’t argue that protecting the marriage ( if they have done so, may be
diff result)
CA’s decision: pp83:
Held
§18: policy not justified. CFA shall apply the standard of reasonable necessity
as part of the justification standard.
§9: CFA: difference in treatment to the prejudice of a particular group req
justification and could not rest on a categorical assertion.  CA’s approach
should not be followed. Circular and gave rise ot a subjective…
42
§10: correct approach: whether the difference in treatment could be
justified, not the treatment itself.
§11: justification test: same as proportionality test. Must be shown that
a)diff in treatment must pursue a legitimate aim… (on pp77)
Director’s 1st argument: pp93 whether justification is required.
CFA’s rejection: 1)Circularity pp94, 2)pp95, consider similarity/diff in vacuum.
3) pp97: §54, fact-specific grounds needed to be considered. 4) CA
3) CA and the need for justification (pp100), core rights and
obligatinos…
Conclusion: pp113
Further
information
Case
Leung Chun Kwong v Secretary for Civil Service, [2019] HKCFA 19， check
DOJ
Case
MK
Reasoning
§14,pp152: BL37 refers to heterosexual marriage.
§16,pp155: W,
§17, pp157: BL37 only protects heterosexual marriage?
§20, pp160: not capable of bearing, W: Corbett principle: there have to be
strong reasons for the Court to depart from the previous construction. “a firm
line has to be drawn b.t. giving an updated interpretation to a constitutional
provision to meet the needs of changing circumstances/ making a new policy
on a social issue (latter not a matter of the court) – here same-sex marriage
was unknown when BL enacted (= right never exist).
§23: Court can’t use the technique of updating interpretation to
introduce/make a new policy on a social issue.
§29,167: distinguished the AUS case, legislature already passed the law to
protect same-sex marriage at the time.
Basically the dissenting argument in W was adopted here.
Lex specialis: can the concept of marriag evolve (accordin to CFA in W, yes)
BL 37 drafted to prohibit same-sex marriage?  unclear. No express bans as
found in other jurisdictions.
Cayman can be distinguished cuz it expressly said opposite sex.
Held
Further
information
Case
Key
Rule
Issue
Fact
Reasoning
Pp185, Fok Chun Wa
Obstetric service
§54, 207: starting point is Yau Yuk Lung,
§62-68, margin of appreciation, pp211
43
§71, 214: in the area where limited public funds are involved, the courts have
recognized that lines have had to be drawn by the executive or the
legislature.
§76, 217: unless the solution or alternative in question is manifestly beyond
the spectrum of reasonableness, the court will not interfere.
§77: Court will intervene when there has been any disregard for core-values
related to personal or human characteristics (such as race, color…)
【2 categories of differentiation 】for cat 1: core values  reasonable
necessity test, for cat 2, if limited public funds are involved  manifest test.
Otherwise normal proportionality test, and for stage 3: consider other factors
such as national security…
BL25: sometimes Court held this as a core value. In Fok, residency is not such
a core val. Hence court only intervenes when manifest standard is violated.
Jeffrey Ma yrs: protection of a traditional marriage is a legitimate aim  but
you must actually promote heterosexual marriage before this can be justified.
 QT/LCW: didn’t promote heter marriage.  CFA: failed stage 2.
But Andrew Cheung asks: whether offend, challenge, question… [check the
slides] BL37: ie, if extending financial benefits to same-sex couples, would you
confuse the traditional value of marriage?
CFA rebuts: circular. The test is only whether the denial of homo marriage will
promote heter marriage.
岑子杰案： Sham Tsz Kit: BL 37 gives a preference for heterosexual
marriage. [slide 33]: alternative argument: if apply QT, if not marriage, art 37
doesn’t apply. The only thing apply is equality  logical position but not the
position of CFA. Cheung is now the CJ and will lead the court.
But in Ng: whether same-sex couple can inherit  Courts only applying
traditional test (2 kinds of tests: 1 traditional 2 overall) inheritance: Courts:
denying inherent right will not promote heterosexual marriage.  lower
courts applying traditional test. But, conferring the right to inherit (homo) will
confuse/challenge the uniqueness/societal understanding of marriage?  2
diff visions of what equality would mean and what should apply.
There’s a clash b.t. Cheung’s test in LCK and in QT: but courts have changed. If
you are arguing in exam/practice. Have to present both arguments in your
argumentation. [need to check recording]
If you know the overrule test is now held in assendency (A Cheung CJ now).
but in exam, can just say: these are the two tests (AC’s test – preference is
given to heterosexual marriage in BL37)
Case
Ng Hon Lam (check DOJ)
44
Case
Sham Tsz Kit 2022 check DOJ
Discussion Questions:
Before class questions:
1) Ratio citizen case: the applicant is saying that the law is unconstitutional. But the court said you have to
show that it’s one of the ingredients of the offence. For eg, if I have an intention to kill and I killed sb, the
offence of murder is established, but I might have a self-defense, and if successful I’ll be acquitted. But selfdefense is not an ingredient of an offence, so all the applicant is arguing is hat even tho the ingredients are
satisfied I can’t be convicted cuz the law is unconstitutional.
2) BORO: only applies to state action (so can’t sue your friend for discrimination) but sometimes against private
individuals: demonstrate in a mall privately owned. But most often only applies to state action. But for
equality, tho BORO and BL only apply to state actions, there are separate statutes apply to private
individuals (sex discrimination ord applies to companies…)  can always make legislation applicable to
private actions.
1. What is the justification test the CFA uses to determine whether the constitutional right to equality has been
violated?
2. In W, why did the majority judges not consider the Corbett criteria determinative of Art 37? Why did the CFA
reject the “consensus” argument? What was the dissent’s view? Can one argue that the applicant’s right to equality
was infringed? What would be the difference if the right of equality was argued instead? What relief/remedy did the
CFA issue in W? In view of the above discussion, and in view of Paragraphs [108]-[109], what are the implications of
W for a similar challenge on same-sex marriage?
3. In QT, what were the aims of the visa policy? Why did the CFA say they fail the “rational connection” test? What
was the “core/non-core right of marriage” test that the CA applied? Why did the CFA overrule this test?


Aim: §14, 90: aim at encouraging such talented persons to join the workforce “by giving them the choice of
bringing in their dependants to live w/ them in HK” 2 aims of the govt: 1) attract foreign talents
2)immigration control
Rational connection: The Policy was counter‐productive in attracting foreign talents (who could be straight
or gay) as the ability to bring in dependants was an important issue for persons deciding whether to move to
Hong Kong. Nor did the Policy promote the legitimate aim of strict immigration control by excluding persons
who were bona fide same‐sex dependants of the sponsors granted with employment visas.
o Pp78: §14: no rational connection, (also pp108)

45

Core/non-core test:
o §62, pp100: CA: core rights and obligations unique… that treatments required no justification cuz the
diff b.t. married/unmarried self-obvious.
o §66: CFA: this approach failed. This test filled with circularity and subjective debate. Real question is
instead: Why should the benefit be reserved uniquely for married couples? Fair and rational reason
for drawing that distinction? Differences in treatment to the prejudice of a particular group require
justification and cannot rest on a categorical assertion.
o Correct approach: pp105, §83: examine every alleged case of discrimination to see if the difference
in treatment can be justified.
o Justification test: pp106, §84
4. In Leung Chun Kwong, what did the CFA say about the role “prevailing views of the community on marriage” play
in determining the legitimate aim or justifying differential treatment? What was the legitimate aim of the laws
herein? Why did the laws fail the “rational connection” test?



Govt this time argues for protection of institution of marriage,
CFA found that the protection of the institution of marriage in Hong Kong, being heterosexual and
monogamous, was a legitimate aim. To that extent, the local legal landscape and societal circumstances
were relevant to the issue of justification. The real question was whether the difference in treatment was
rationally connected to the said legitimate aim. (paragraphs 58-62) That said, the prevailing views of
community on marriage were not relevant to the justification issue since reliance on the absence of a
majority consensus as a reason for rejecting minority’s claim was inimical in principle to fundamental rights.
(paragraphs 55-57)
CFA：stage 2 failed cuz ppl wont’ be encouraged to enter into heterosexual marriage due to the exclusion of
other forms of marriage/certain rights specific to heterosexual marriage groups/differential treatment. ???
[only thing CFA asks is whether heterosexual marriage is promoted by differential treatment of homosexual]
 not, so stage 2 fails.
5. In MK, contrast the CFI’s view on when Art 37 BL can be updated with the CFA’s ruling in W. Comment on the CFI’s
use of the Lex Specialis principle [para 32] to discard all the CFA and overseas precedents on equality?


CFI: court can’t use the technique of updating to introduce new social policy
Lex Specialis pp169, rationale is to keep the coherency and consistency of interpretation. And in §40, the
Court points out that because that because there’s not marriage protection clause, in those relevant
overseas precedents those courts didn’t have to consider the impact that a marriage protection clause
would have. I think this is problematic cuz it almost makes the argument that marriage protection clause
seems to add further restraints to the right of marriage while it was supposed to provide more protection to
citizens’ rights and freedom of marriage.
Was Art 37 BL intended to protect heterosexual marriage to the exclusion of same- sex marriage per se, or was it
intended to prohibit forced marriages, where women were historically forced to marry men chosen by their
families? If it is the latter, will Lex Specialis still apply?

To prohibit forced marriages, because if the Court was right in saying that by the time the legislation was
enacted, same-sex marriage was unknown, how could the law prohibit sth that unknown to them. no.
6. In Fok Chun Wa, the CFA spelt out two categories of discrimination. What are they? What are the differences?
Should courts always defer to the legislature when there are resource allocation concerns? What did the CFA in Fok
Chun Wa say?


2 categories of discrimination: def and differences
o
Resource allocation: §4, 186. where the allocation of public funds and limited financial resources are
concerned, such as in healthcare, the courts are not equipped to make the necessary judgements in
allocating funds… Court would consider the clarity of the line.
46
§76, 217: unless the solution or alternative in question is manifestly beyond the spectrum of reasonableness,
the court will not interfere.
§77: Court will intervene when there has been any disregard for core-values related to personal or human
characteristics (such as race, color…)
7. In Edgar Ng (No 2), why did the CFI conclude that the Housing Policy fail Stage 2 and Stage 3 of the Proportionality
Analysis?




§47: The fact that heterosexual marriage is constitutionally recognised and protected by BL 37 does not
mean that it is permissible to discriminate against same-sex couples based on their sexual orientation in
relation to matters where same-sex couples and opposite-sex couples are in a comparable or analogous
position.
(2) The suggestion that due or significant weight ought to be given to HA’s own policy view on what is
significant and distinctive between types of married couples for public housing purposes is, in my view,
contrary to principle. It is a question of law for the court, not HA, to decide whether two persons or groups
of persons are in relevantly similar or analogous situation for the purpose of a discrimination claim, having
regard to the relevant context of the subject matter of differential treatment
8. In Sham Tsz Kit, the Court of Appeal endorsed the Privy Council’s decision from the Cayman Islands. How is Section
14(1) of the Cayman Island Bill of Rights different from Article 37 of the Basic Law? Does this textual difference affect
the application of the Les Specialis rule?


“41. There, the principal issue was whether the Bill of Rights (which forms Part 1 of the Cayman Islands
Constitution) provides for a right for the appellants, a same-sex couple, to marry when section 14 (1) of the
Bill of Rights provides for the right to marry a person of the opposite sex in these terms: “Government shall
respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to
marry a person of the opposite sex and found a family”. The applicants relied on general provisions in the Bill
of Rights, namely, section 9 (right to respect private and family life), section 10 (right to freedom of
conscience) and section 16 (right against discriminatory treatment) in support of their cases.” --- section
14(1) did not use exclusionary words such as “only” before “a person of the opposite sex” to deny same-sex
couples the right to marry
CA: §43: 43. On appeal, the Court of Appeal held that in the scheme of the Bill of Rights section 14 is the
provision which governs the right to marry as a lex specialis, and which does not cover same-sex marriage.
47


Hence, the general rights could not be interpreted to include a right for same-sex couples to marry for which
the lex specialis in section 14 did not provide.
Pp257, lex specialis shall prevail other general provisions.
o Pp260,
§35-36,
9. In Sham Tsz Kit, the Court of Appeal ruled that the absence of any alternative means of legal recognition for samesex partnerships (short of marriage) was not a violation of the right of equality. What were its reasons? Is this ruling
consistent with the CFA’s ruling in Leung Chun Kwong?

Inconsistent with LCK, LCK provides that you only apply equality [check the recording],
Seminar 11: Exclusive BL rights
Readings:
1. Article 141(3) BL: Catholic Diocese of Hong Kong v Secretary for Justice, (2011) 14 HKCFAR 754
2. Article 36 BL: Kong Yunming v Director of Social Welfare, (2013) 16 HKCFAR 950
3. Article 41 BL: Ghulam Rbani v Secretary for Justice, (2014) 17 HKCFAR 138
Case
Catholic Diocese of Hong Kong v Secretary for Justice
Key
Rule
Issue
Fact
Right of schools to run according to previous practice, 基督教学校
Reasoning
- Education (Amendment) Ordinance 2004: all schools are now required to
include non- SSB managers in its management committee to sit alongside a
maximum of 60% SSB- appointed managers.
- Govt: oversee how subsidized school runs
- Applicant: dilution of its absolute control of school management by the new
statutory requirements
- The applicant claimed that the BL preserves its right to run its schools
according to previous practice, and legislative reforms were inconsistent with
inter alia BL 141(3)
1. BL136(1): “… on the basis of the previous educational system”
Appellant: Govt acted beyond the constitutional limits
CFA: no inconsistency since 1) edu system before 97 included powers
given to the Director of Education, such external powers always
existed before the 04 amendments 2) policy not new, first formulated
in 1991, it’s a policy elaborated/developed as part of that very
system. 3) BL136(1) spec. authorises the Govt to “formulate policies
on the development and improvement of education”  allows future
changes to the existing system.
2. BL 141(3) pp23, :, religious freedom, “Religious organisations may,
according to their previous practice, continue to run seminaries and
other schools, hospitals and welfare institutions and to provide other
social services”
A: claim constitutional protection for “previous practice”
CFA: §65 pp21: first consider what constitutional rights are engaged.
Appellant has failed the first step of identifying the protected
constitutional right and disagreed with the appellant’s interpretation
of the words “according to their previous practice”: 1) if A’s claim
could be established  dysfunctional since Govt won’t be able to
formulate policies on the development & improvement of edu to be
48
applied uniformly to all HK schools. No such intention from the
framers. 2) should be read in context of BL141 as a whole. Purposive
interp 【whenever see this purposive interp  know that courts will
start creative interp 】should mean that religious organizations
“may, according to their previous practice in so far as it involves the
exercise of their right to freedom of religious belief and religious
activity, continue to run ... schools (etc)” [pp24] # not a textual
reading of 141(3) (didn’t say that intervene only when religious belief
is affected) ie: Court is trying to pursue a certain policy goal.
Rationale: world will change  reasons to make sure curriculum to
keep up with the changing environment/society.
Other concerns: religious schools have immunity? (even hospital)? 
hospital could refuse to advance their equipment.
Need to make sure to keep up with the time.
But, sometimes no clear cut?  check the discussion question
(contraception…) overlapping areas: not easy to classify. Consider:
what if HK govt requires religious schools to teach evolution in
science classes?  answer is unclear. The present case is simple. But
there could be close cases.
Held
3) BL  means that §79: it is the religious dimension of their previous
practice that receives protection as part of the core constitutional
right to religious freedom as applicable to religious organizations.
Polices which have no religious content would not engage the
protections. 137(1) give a more limited protection than given by
BL141(3).
3. The appellant’s asserted authority to appoint 100% of a school’s
management committee is not a constitutional right protected by BL.
→CFA did not apply proportionality
→Read in words into BL141(3); Purposive interpretation
→context: core right of freedom of religious belief in BL141(1); other parts
are ancillary and support that core right
“may, according to their previous practice in so far as it involves the
exercise of their right to freedom of religious belief and religious activity,
continue to run... schools”. →Religious dimension of previous practice that
receives protection
→Policies which have no religious content would not engage the protections
Further
information
Case
Key
Rule
Issue
Fact
Reasoning
Kong Yunming v Director of Social Welfare 2013
Proportionality test pp30:
i)
identify the constitutional right engaged (i.e. BL 36 right in the
present case) (Catholic Diocese of Hong Kong v Secretary for
Justice (2011) 14 HKCFAR 754);
ii)
identify the legal or administrative measure said to restrict the
constitutional right (i.e. the imposition of the seven-year
residence requirement in the present case);
iii)
ask whether that restriction pursues a legitimate societal aim;
49
iv)
having identified that aim, ask whether the impugned restriction
is rationally connected with the accomplishment of that end;
v)
if such rational connection is established, the next question is
whether the means employed are proportionate or whether, on
the contrary, they make excessive inroads into the protected
right (HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574).
Pp44: Govt’s purpose in adopting 7 yrs rule:
Pp46: the OWP Scheme
Prof. said this is the 2nd most illogical decision of CFA. Said the reasoning is
wrong (he thinks the 1st illogical one is the radio case).
[add details from the slides]
Social welfare is resource allocation  competitive in nature. Court said the
test will be legitimate aim, rational connection, and manifestly w/o
foundation (no stage 4 cuz not invented yet, before Hysan).
Govt’s legitimate aim: sustainability (esp. given that HK is an ageing society).
Problem is when: Court deviated from the legitimate aim (strike down the
law using stage 2)
Prof. said: rational connection: need to be a HK PR before you get social
welfare. But court, after claiming this is the legitimate aim, said that
1) under HK law: OWP scheme’s main purpose is reunite. CFA said this
will deter new arrivers to come to HK (prof. said which is true, but the
aim is not about OWP, the law is about the sustainability of social
welfare system)  Govt said: aim is sustainability, but court said:
didn’t achieve the aim cuz “deter new arrivers”  no logical
connection bt the two. [legislative intention not just family reun but
also sustainability]
Held
CFA held that the Government has failed to show that the seven-year
residence requirement for the CSSA scheme is rationally connected to the
legitimate aim of curbing expenditure so as to ensure the sustainability of the
social security system. Even if there is any rational connection, the restriction
is wholly disproportionate and manifestly without reasonable foundation.
The CFA concluded that the seven-year residence requirement is an
unjustifiable contravention of the right to social welfare in accordance with
law conferred by BL 36 and declared that it is unconstitutional, restoring the
pre-existing one- year residence requirement.
Further
BG: HK govt adopted laissez-faire before the handover so social welfare has
information/reflections always been heavily regulated. This case is the first case involves social
welfare after the handover  significant meaning.
As for prof. Yap’s argument that the Director could exercise his discretion to
grant Kong subsidies so no need to strike down the whole law  §124-136:
Court argues that if Kong is disqualified, then the director’s threshold too
high to be met.
旨在维持低税政策： HK has been practicing Capitalism, free trade port, and
low-rate tax system long before the handover. After the handover, BL also
regulates that the previous system shall maintain unchanged for at least 50
yrs. BL 107 also provides that the HKSAR shall “follow the principle of keeping
expenditure within the limits of revenues in drawing up its budget, and
striving to achieve a fiscal balance…” It is under such context that the govt
maintains a tight control over the social welfare and endorsed the 7-yr rule in
2004 (after 2003 SARS, which imposed a great challenge on the public
medical system and the social welfare system).
Public policy concern: recall Chong Fung Yuen, after the CFA’s decision in
that case, there is a rapid influx of mainland women seeking to give birth in
50
public hospitals, which brings significant and far-reaching influence on the
social/medical/educational/ and housing sectors of the society. While the
decision was made based on the evaluation of the previous data, such
changes of the policy may indeed attract new arrivers and the subsequent
impact on the social welfare of HK would be uncertain. By striking down the
whole law and cancelling the director’s discretion power, this decision leaves
less room for govt to alter the social welfare policies when facing future
uncertainties such as economic downturns.
Separate Constitutional roles: this decision also did not fully address the diff
constitutional roles of LegCo and the judiciary. [check p292]
Social value: this decision also deviates from the culture that people also
need to perform certain obligations while enjoying the rights. In fact, many
other states such as Canada and Australia also require the applicants of social
welfare to stay in the country for at least 2 yrs or more.
Need to balance between social welfare and low-rate tax system  if
expenditure on social welfare exceeds the normal amount  can HK still
maintain a low-rate tax system? If not  loose its attraction? Can’t attract
more talents to HK?
Discussion Questions:
1. Do you agree with the CFA’s gloss on Art 141(3) in Catholic Diocese [para 78]? What is the consequence of this
reading of Art 141(3) BL? After Catholic Diocese, can the government insist on teaching contraception/ stem-cell
research / evolution in all public aided schools, including religious ones? On the other hand, in para [68], the Catholic
Church wanted the right to retain all pre-existing practices pre-dating the handover. What would be the
consequences?



Pp23: CFA: CA’s interpretation of BL141(3) ignores the phrase “according to the previous practice”.
o Pp24: §78: purposive interpretation should be “may, according to their previous practice in so far as
it involves the exercise of their right to freedom of religious belief and religious activity, continue to
run ... schools (etc)”  means that §79: it is the religious dimension of their previous practice that
receives protection as part of the core constitutional right to religious freedom as applicable to
religious organizations. Polices which have no religious content would not engage the protections.
o Consequence: govt interference in other sections of religious schools.
§68 ,pp22. Consequences: §69: any edu policy that the govt may wish to espouse can’t be imposed on any
school run by a religious org which had adopted an inconsistent previous practice.
Mere prohibition v mere compulsion of activities, which one more constitutional?  141 is about the ability
to continue to run your institution in a way you want. Prof. said that the classification of what religious is not
will fall apart on more disputable issues (contraception…). Prof. asks what if HK govt say that HK schools may
not teach creationism. Prof. said he doesn’t have easy answers. But there would also be issues that cuts the
distinctions. The question is if the school objected, what then? Also about hospitals (eg, abortion?) prof. said
the two areas can overlap (teaching and religious practice)
2. The CFA in Kong held that the only purpose of the OWP scheme is family reunion [61],[64]. Is it?

Pp49. Yes? [also to boost population growth given the ageing population?]
3. The CFA in Kong held that very few elderly people enter Hong Kong under the OWP scheme and very few receive
social welfare. [74]-[75]. Does this show that there is no rational connection between the restriction and the
legitimate purpose for the restriction? What was the government’s purpose here? What did the CFA think was the
government’s purpose?

§74, pp 53: 7 yr policy doesn’t affect all elderly CSSA recipients, but only new arrivals who are elderly 
only a small proportion of all new arrivals. (no floodgate concern)
51
o


Prof. said this is a misunderstanding of Govt’s position. HK govt is saying that we don’t want to give
mon to all ppl coming in HK for 7 yrs so we can save mon for the ageing population in HK
(misunderstanding of the HK govt’s position) Govt: focus is about providing $ to the elderly in HK
o How many ppl come in is a separate question other than how many ppl get $.
 OWP Population is irrelevant  Govt wants to make sure to save mon for the local
population.
 Prof. said: Govt said in 2001, if not giving  could save 764 M $  significant number, but
the case litigated in 2012 (10 yrs later)
 HK govt: safety net for vulnerable in HK. The focus has never been whether infants/elderly
from ML are collecting social welfare. (prof. said misunderstanding of CFA).
 director could exercise discretion to give Kong $. (prof. said Court should not strike
down the entirely law, but just to rely on legislation to give Kong $)
 Prof. said there’s distinction between OWP scheme and social welfare. OWP is about
entering HK, not about collecting $. The later is about to make sure that HK residents
receive mon. the 7 yr rule is rationally connected to the govt’s goal
Govt’s purpose: societal aim in adopting the seven-year residence requirement was to ensure the
sustainability of the social security system by cutting expenditure, and the need was justified by three
factors, namely: (i) the policy of accepting immigrants from the Mainland under the One-Way Permit
scheme; (ii) Hong Kong’s ageing population; and (iii) the rise in expenditure on the CSSA. The CFA held that
none of the three factors justified the seven-year residence requirement.
CFA rejected those concerns.
4. The CFA in Kong held that the restriction only saved less than $764 million HKD for the Hong Kong government
[para 95], and hence there was no rational connection between the restriction and the legitimate purpose for the
law. What is problematic about this argument, if any?


Prof. said this is problematic since the govt’s aim is sustainability of the social welfare, but the court is saying
that this will deter new arrivers  the two are different concerns. The govt’s argument not necessarily
disconnected from the legitimate aim.
o under HK law: OWP scheme’s main purpose is reunite. CFA said this will deter new arrivers to come
to HK (prof. said which is true, but the aim is not about OWP, the law is about the sustainability of
y, but court said: didn’t achieve the aim cuz
also sustainability]
 prof. said there’s a diff between the rules of coming in and rules of collecting money.
Case litigated in 2012 (more than ten yrs later) but the Govt’s estimation is about 10 yrs ago.
5. The CFA in Ghulam Rbani emphatically rejected the notion that the words “in accordance with law” in Art 41
permit the legislature, “simply by passing legislation”, to deprive non-residents of BL rights. [para 93]. As the CFA
reasoned, if that had been the BL’s intention, Art 41 would not have been included at all. But the CFA went on
further to state that “[t]he object of BL art. 41 is to extend [BL rights] to persons in Hong Kong who are not
residents”. Why is the second argument a non
Sequitur [illogical]? What would be the consequence of the CFA’s reading of Article 41 BL, if left unmitigated? (clue:
see Section 11 BORO)


S.11, BORO: Immigration legislation: As regards persons not having the right to enter and remain in Hong
Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure
from Hong Kong, or the application of any such legislation.
§93: pp76,
6. Section 11 BORO is only a statutory provision. Why did the CFA in Ghulam Rbani argue that this statutory provision
can qualify the scope of Article 41 BL, which is a constitutional clause? [para 94]. See Para [97]: “[I]n giving
constitutional status to the Hong Kong Bill of Rights Ordinance including s.11, BL art.39 gives constitutional status to
52
a specific exception to relevant provisions of the Hong Kong Bill of Rights in relation to persons not having the right
to enter and remain in Hong Kong and in respect of immigration legislation governing entry into, stay in and
departure from Hong Kong, or the application of such legislation”. What is problematic about this argument?
Order public is not unconstitutional per se, but when given to the police to interp, (being a none-independent
department of govt, should not be given this discretion)
In Chee Fei Ming, given to govt official, hence lower courts held not prescribed by law. But CFA changed the test.
Whenever purposive interp: read in the context of BL/
Prof. said won’t say that prescribed by law is not relevant. Cuz in the future, might be a concern (not addressed yet).
Where courts issue 2 tests, lay out/apply both tests.
For marriage: since A Cheung is the CJ now, mention both tests for marriage.
53