The Hong Kong Court of Appeal (CA) has overturned the decision of the Court of First Instance (CFI) and mostly upheld a controversial face-mask ban despite the ongoing coronavirus pandemic. The ruling was welcomed by the HKSAR Government but criticised as “ridiculous" by opposition lawmakers who vowed to appeal to the city’s highest court—the Court of Final Appeal. A number of opposition leaders have since been arrested, including Auk Nok-hin, one of the twenty-four lawmakers to challenge the Government’s ban in court, throwing into doubt any further legal challenge. Unfortunately, Hong Kong appears to be following the same decline in the rule of law and rise of authoritarianism that has been seen across the world.

 THE PATH TO THE COURT OF APPEAL

Following months of protest against a now infamous extradition bill, which would have allowed extradition to mainland China, the city’s Chief Executive issued a ban on wearing face-masks at public gatherings. The Prohibition on Face Covering Regulation (PFCR) was immediately challenged by judicial review, the process wherein policy changes are subject to review by court.  The challenge was brought by 24 opposition lawmakers who argued that the ban was beyond the scope and power granted to the Chief Executive by law, and a disproportionate interference with a person’s liberty and privacy. Further, they challenged the constitutionality of the colonial era law used to issue the ban—the Emergency Regulation Ordinance (ERO). The CFI concurred and declared both the ERO and the PFCR unlawful. The Government appealed this decision.

THE COURT OF APPEAL’S JUDGMENT ON COLONIAL ERA LAWS IN HONG KONG

In its judgment, the CFI dismissed the colonial era cases that dealt with the ERO’s constitutionality, holding that the introduction of the Basic Law—Hong Kong’s mini-constitution—had set up a new constitutional order and, therefore, that such “pre- constitutional” cases were no longer relevant.[1] In contrast, the CA considered the pre-1997 constitutional order at length and concluded there is enough continuity with the present to justify applying those colonial era cases.

The CFI held that Article VII of the Letters Patent, which empowered the colonial era Governor to “make laws… by and with the advice and consent of” the Legislative Council (LegCo), made the pre-1997 LegCo “supreme”[2] in the same sense that the UK Parliament was supreme and, thereby, able to delegate its lawmaking powers to the Governor[3]. The CFI contrasted this with the Basic Law, which designated the post-1997 LegCo sole legislature with only limited powers to delegate.[4] Therefore, the constitutional order had changed.

In contrast, the CA reasoned that the debate over the ERO’s constitutionality in two colonial era cases—R v To Lam Sin(1952) 36 HKLR 1 and R v Li Bun & Others [1957] HKLR 89—showed the pre-1997 LegCo’s power to delegate was just as limited. In To Lam Sin, the accused had submitted that the ERO was beyond the powers granted to the LegCo because it delegated too much legislative power to the Governor. The court rejected this argument on two grounds: (1) that the LegCo’s power to delegate was “a full one, limited only by… the Letters Patent”[5] and (2) that the LegCo retained “close control” because it could amend or repeal any regulations made under the ERO by virtue of the Interpretation Ordinance, section 14[6]. In Li Bun, the ERO was again challenged for granting too much power to the Governor but the challenge also rejected because the ERO’s use was restricted to emergencies. Thus, it did not confer too much legislative power on the executive.

Applying To Lam Sin and Lin Bun, the CA held that the LegCo could delegate the making of emergency regulations. The CA was satisfied the LegCo retained close control, or at least as much control as the pre-1997 exercised.

The CA was also satisfied that Hong Kong was facing a time of public danger. It was not concerned by the absence of a statutory or common law definition of public danger, an omission which the CFI had thought troubling. The CA held that “whether such a state [of public danger] exists can be objectively gauged by the prevailing circumstances.”[7] Further, any executive decision to declare an occasion of public danger would be subject to the tests of Wednesbury reasonableness and good faith.[8]

COURT OF APPEAL JUDGMENT: PFCR

In its judgment, the CFI held that prohibiting face-masks at unlawful assemblies was legitimate but that the same could not be said of sections 3(1)(b), (c) and (d) of the PFCR, which prohibited face-masks at unauthorised assemblies, authorised public meetings and public processions respectively. An unauthorised assembly is defined by section 17A(2) of the Public Order Ordinance as a public gathering of 3 or more persons who refuse or wilfully neglect to obey an order from the Commissioner of Police.

The CA dealt with section 3(1)(b) of the PFCR by noting that the right of assembly was not absolute and restrictions to protect the rights of others are legitimate.[9] The CA cited Leung Kwok Hung v HKSAR, where the Court of Final Appeal had held the police could restrict peaceful assemblies for public order and safety. The CA did not doubt the ability of the Hong Kong Police Force or the judgment of individual officers to act proportionally when giving orders to public assemblies, which could potentially convert the assembly into an unauthorised assembly.

Further, given the use of so-called “black block” tactics by some protesters, the CA held it was necessary for the police to be able to make orders for the removal of face-masks at assemblies that had already become unauthorised due to protesters’ failure to follow police orders. The CA held that the defence of reasonable excuse under section 4 of the PFCR was sufficient protection where a person was unaware that an assembly had become unauthorised.

With regard to section 3(1)(c) and (d), however, the CA agreed with the CFI that it was not proportional to extend the PFCR to lawful, authorised public meetings and processions. Further, the CA agreed that the police’s power to forcibly remove a face-mask, conferred by section 5 of the PFCR, was too gross an interference with a person’s liberty and privacy because it inevitably involved bodily contact.[10]

COMMENT

The tactics of the Hong Kong Police Force have already infringed Hong Kongers’ right to assembly, supposedly guaranteed under Article 20 of the Universal Declaration of Human Rights. For example, a peaceful assembly of over 1 million Hong Kong citizens on 18 August 2019 was declared unauthorised by the Hong Kong Police Force following a minor incident in which a small group of protesters blocked a road and damaged some construction works. Similarly, during a march organised by Civil Human Rights Force on 1 January 2020, which also attracted over 1 million Hong Kongers, the police demanded protesters disperse and gave only 30 minutes to do so. After 30 minutes elapsed, the police began firing rounds of tear gas into the throngs of unarmed protesters. The police will now be able lawfully to detain any person wearing a face-mask at such a gathering. Given the professional and familial pressure on many people in Hong Kong not to be involved in any activity that could be construed as anti-Government or anti-China, the risk of prosecution for wearing a mask to remain anonymous at even a peaceful assembly will force many Hong Kongers to choose between political expression and personal safety.

While authoritarian governments around the world have recently used the coronavirus pandemic as an excuse to accrue more powers, Hungary and the Philippines being only the most egregious examples; the HKSAR Government’s decision to use colonial era laws to pass regulations with little legislative oversight in response to its citizens’ political expression reflects a similarly authoritarian, even colonial, ambition.

The CA gave weight to the supposed continuity between the pre- and post-1997 LegCo. However, both the CFI and the CA erred in failing to give weight to the political reality behind the pre-1997 LegCo. At the time of the decisions in R v To Lam Sin and R v Li Bun & Others, the pre-1997 LegCo consisted of fewer than 20 members, half of whom were appointed by the Governor and half of whom obtained their seats by virtue of holding another office. All members either directly or indirectly acquired their position via the Governor. Further, the pre-1997 LegCo could not pass legislation without the Governor’s consent, nor could it oust the London-appointed Governor. It is more accurate to describe the pre-1997 LegCo as the Governor’s cabinet and the Governor as a quasi-monarch.[11] A description more consistent with pre-1997 status as an imperial outpost. In contrast, the Basic Law was supposed to give the Chief Executive “no executive powers himself”.[12]

The effect of upholding the ERO in modern Hong Kong is to give the executive the powers of a colonial administrator. Hong Kongers bereft of universal suffrage and unable to select their Chief Executive, are still being treated as a colony of a superpower in clear breach of international law.[13]

***
Legal citations

[1] Kwok Wing Hang and Others v Chief Executive in Council and Another Leung Kwok Hung v Secretary for Justice and Another HCAL 2945/2019 and 2949/2019; [2019] HKCFI 2518, para. 88-90

[2] c.f. R v Burah (1878) 3 App Cas 889

[3] 1 ibid 1, para. 51

[4] ibid 1, para. 52

[5] per Howe CJ, R v To Lam Sin (1952) 36 HKLR 1 p. 14

[6] ibid

[7] Kwok Wing Hang and Others v Chief Executive in Council and Another Leung Kwok Hung v Secretary for Justice and Another CACV541/2019 and CACV542/2019 [2020] HKCA para. 133

[8] Padfield v Minister of Agriculture Fisheries and Food [1968] AC 99

[9] KSAR v Chow Nok Hang; Kudrevicius v Lithuania

[10] Gillan and Quinton v United Kingdom; contra Reyntjens v Belgium

[11] Norman Miners, The Government and Politics of Hong Kong (Hong Kong: Oxford University Press, 5th edition, 1998) at page 98.

[12] Leung Kwok Hung v CE of the HKSAR Unrep., HCAL 107/2005, [2006] HKEC 239 at para. 136. per Mr Justice Hartmann

[13] Declaration 5 of the UN Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)

Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.

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Cheuk studied law at Cardiff University. He is currently pursuing postgraduate legal studies. His research interests are human rights and the rule of law in Hong Kong.