Freedom of Assembly in Hong Kong

Freedom of assembly (“the freedom”) is a fundamental freedom for residents in a civilized and liberalized society. However, the freedom, like most rights, is not absolute and is subject to various restrictions. This article will study the extent to which the freedom can be enjoyed in Hong Kong by analyzing possible restrictions, especially those under the Public Order Ordinance which may be imposed on it.

B) Legal Framework

The freedom is a constitutionally guaranteed right in Hong Kong being protected by the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (“Basic Law”) [1] . However, the right also carries with it special duties and responsibilities [2] allowing restrictions to be imposed constitutionally.

Article 27 of Basic Law explicitly provides for the freedom of procession and demonstration, which means the freedom, for residents in Hong Kong. Moreover, Article 39 of Basic Law provides for the incorporation of rights and freedoms, including freedom of assembly [3] , in the International Covenant on Civil and Political Rights (“ICCPR”) to be applicable to Hong Kong as constitutional rights. Although Article 27 of Basic Law seems to provide an absolute freedom, it does not exclude the possibility for restrictions. [4] Whereas, Article 39(2) of Basic Law explicitly stated restrictions on the freedom, namely, those restrictions which are both prescribed by law and do not contravene provisions in ICCPR.

ICCPR is incorporated into Hong Kong’s domestic law under Hong Kong Bill of Rights Ordinance (“BORO”) [5] . Part II of BORO is the Hong Kong Bill of Rights (“BOR”) which incorporates almost word by word the provisions from ICCPR. Main provision under BOR protecting the freedom is Article 17 which actually incorporates Article 21 of ICCPR. Under Article 17 of BOR, the right to peaceful assembly is recognized. At the same time, it recognizes restrictions which can be imposed on the freedom provided that the restrictions are in conformity with the law and are necessary in a democratic society in interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others (“legitimate aims”). [6]

Basically, restrictions on the freedom need to satisfy two tests, namely the legality test and necessity test before qualifying as permitted restrictions. [7] The two tests are applied by Hong Kong courts and courts in other jurisdictions when restrictions to fundamental freedom are being considered.

Legality Test

The legality test is incorporated by the words “prescribed by law” and “in conformity with the law” under Article 39(2) of the Basic Law and Article 17 of the BOR (Article 21 of ICCPR) respectively.

“In conformity with the law” is believed to have the same meaning as “prescribed by law”. [8] There was comprehensive discussion as to the requirement of “prescribed by law” in Shum Kwok Sher v HKSAR [9] . In the case, the court applied Sunday Times v United Kingdom (No.1) [10] which established that “prescribed by law” meant that the law was sufficient precise and adequately accessible. Further, precision of law meant the citizens should be able to predict the consequences of their act from the sufficiently precise words used in the law; whereas adequately accessible meant the citizens were able to know what legal principles would apply on them under their circumstances. [11]

Whenever it involves discretionary power conferred on officials executing the statutory duty which intervene fundamental rights, reference should be drawn to Malone v United Kingdom which decided that as a matter of legality, the scope of the discretion must be clearly identified otherwise the legality test cannot be satisfied. [12] 13

Necessity Test

Article 17 of BOR (Article 21 of ICCPR) explicitly provides for six interests which are said to be necessary in a democratic society. Restrictions can be imposed on the freedom in order to protect these interests. The court in HKSAR v Ng Kung Siu & Another agreed the word “necessary” is to be interpreted in its ordinary meaning. [14] When applying the necessity test, proportionality and rationality will also be relevant. [15] 16

Proportionality and Rationality

In order for the restrictions to be necessary in a democratic society, the court needs to balance whether the restrictions imposed on the constitutionally guaranteed freedoms are proportionate to the legitimate aims as set out in the constitution. [17] Considering that, the restrictions permitted have to be rationally connected to the legitimate aims under the constitution and should be no more than is necessary. [18] In De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing & Others, the Privy Council suggested that for a restriction to be justified in a democratic society, the legislative objective should be sufficiently important, the measures used in restricting the rights are rationally connected to the legislative objective and the restrictions are no more than are necessary in order to achieve the objective. [19]

C) Public Order Ordinance [20] (“the Ordinance”)

Background

The Provisional Legislative Council enacted the Ordinance in 1997 replacing the former version in 1995 on the ground that amendments to the ordinance in 1995 contravened the Basic Law. [21]

Here, two differences between the two versions require much concern. Firstly, the 1997 version introduces “the interests of national security, public safety, public order (ordre public) or the protection of the rights and freedoms of others” replacing “the interests of public safety or public order”. Secondly, the 1997 version amended the notification system. [22]

The interests introduced by the 1997 version are in fact extracted from ICCPR. The reason for the adoption is simply because this can conform to Article 39 of Basic Law. However, this adoption renders the police with greater flexibility in controlling assembly than before. [23]

Under the 1995 version, once notification of public procession is made to the police, it is deemed to be authorized unless the Commissioner of Police issue a notice of prohibition to the organizers in accordance to S14 of the 1995 ordinance. [24] Whereas the 1997 version requires a seven days prior notification to the police before the date of public procession and also requires a notice of no-objection from the police in order for the procession to be deemed authorized (if the no-objection notice is not issued within a specific time, it would be deemed to be issued). [25] The 1995 version is believed to be more liberalized in the way that right to assembly is as of right [26] while the 1997 one would not be so by the need to make “application”. [27]

The tighter 1997 version was enacted at a time where there was political uncertainty in the society: the Mainland was feared by the experience of the Cultural Revolution and the “public involved governance” in Hong Kong which may threaten order in the society. [28] 29However, as criticized by Professor Yash Ghai, the amendments to the Ordinance are seen as a serious restriction on rights after the handover. [30]

D) Legal Implication of the Ordinance upon the freedom

Omission of “in conformity with the law” and “in a democratic society” [31]

The power of the police to restrict public gathering can be carried out whenever it is necessary in the interests of national security, public safety, public order or the protection of the rights and freedoms of others (“legitimate purposes”). The legitimate purposes widely used in the Ordinance are in fact very similar to that of the legitimate aims stated in Article 17 of BOR (Article 21 of ICCPR). However, the legitimate purposes are narrower than the legitimate aim in protecting the freedom by its exclusion of the expressions “in conformity with the law” and “in a democratic society”. [32]

As explained before, “in conformity with the law” is to be interpreted in the same way as “prescribed by law”. Both expressions relate to the constitutional requirement of legality. Without legality, the law could easily be carried out arbitrarily.

On the other hand, the freedom cannot be rightly exercised if the permitted restrictions do not follow standards of a democratic society. Although there is no concrete definition for “democratic society”, one may refer a society which respects human rights in the United Nations Charter and the Universal Declaration of Human Rights to be democratic. [33] In other words, excluding the expression “in a democratic society” would imply a failure to recognize those standards enhancing the freedom. A further elaboration of the expression “democratic society” was found in Handyside v United Kingdom [34] as pluralism, tolerance and broad mindedness. [35] The three elements pointed out in Handyside are important to the freedom as very often assembly activities would affect some other interests of the society, for instance public order. By accepting the principles of pluralism, tolerance and broad mindedness, some kinds of distortions caused by assembly activities can be justified. All restrictions to the freedom should follow standards in a democratic society otherwise arbitrary restrictions will exist at the cost of enjoyment of fundamental freedoms.

Prior Notification – aims not prescribed by law

Under ss.7 and 8, the Commissioner of Police (“CP”) has to be notified before public meetings can take place under certain situations whereas similar notification system is found in ss.13 and 13A concerning public processions.

The mechanism is accepted by the majority in the 2005 Leung Kwok Hung case. However, a deep examination reveals it to be seriously flawed. [36]

Before examining whether the notification requirement is constitutional, the aims for its existence should be identified. Although there is no express reason for such a requirement, the government argued in 2005 Leung Kwok Hung case that the requirement is for the police’s better allocation of resources such as to control traffic and minimize inconvenience caused. [37] However, these kinds of aims are not provided for by the ICCPR and thus are not permitted grounds of restrictions.

Prior Notification – Manner of Notification

Although the Ordinance allows the police to accept shorter notice [38] , it does not provide that they are allowed to dispense with the requirement. [39] In this way, the notification requirement will exclude the possibility of any lawful spontaneous assembly. Under the UK Public Order Act 1986, whenever it is not practicable to give advance notice, the notification requirement is simply inapplicable. [40] The problem here can be solved if the position given by Bokhary PJ is right where he said the Ordinance is actually read without requiring prior notification for spontaneous assembly. [41]

Prior Notification – No Objection Requirement

The requirement for obtaining no objection from the police before rendering the assembly lawful is a restraint to the freedom. Here, fundamental freedom is exercised subject to permission. Thus the right becomes a limited privilege controlled by the discretion of the authorities. [42] A similar permit requirement on assembly was consider in Mulundika v Zambia and the court decided that the relevant provision on permitting system was not in accord with the freedom. [43]

Moreover, the requirement is only applicable to public procession but not public meeting. The distinction makes it dubious as to whether there is a real necessity in imposing the restriction if it is not necessary for public meeting.

Prior Notification – Criminalizing Unnotified Assembly

S17A of the Ordinance makes it an offence for all unnotified assembly. This is disproportionate to peaceful assembly and conflicting the notion of freedom of peaceful assembly. Moreover, this is not proportionate to the aims for the notification requirement. [44] 45

On the other hand, there are other measures which could be used by the police for proper policing in cases of unnotified assembly. Ss18 and 19 of the Ordinance created offences for any assembly involving breach of the peace and riot. The two sections enable the police to interrupt unlawful assembly and thus protect legitimate aims in a society. S10 of the Police Force Ordinance provides that the police can take lawful measures on various occasions including preservation of public peace, prevention of injury to life and person, regulation of public meetings and assemblies, preservation of public order in processions and assemblies, traffic control etc.

These alternative measures already enable proper policing of assemblies, thus rendering the criminalizing of unnotified assembly unnecessary.

Prevention of and punishing unlawful assembly are not the same. [46] The freedom is protected by the constitution, every restriction especially those involving criminal sanction on the freedom should be imposed with great cautions and only in situations where there is a real necessity. The same position was put forward by the ECHR in Sener v Turkey [47] where it suggested that even though a State would need to protect its citizens from public order, its response should not be in excess. Thus, any criminal offence deriving from the exercise of fundamental freedoms should be narrowly defined.

Discretionary Power conferred on the Commissioner of Police (“CP”)

The Ordinance confers discretionary power upon CP to restrict the freedom. Under ss9 and 14, the CP can prohibit and object public meeting and procession respectively. While under ss6, 11 and 15, CP can control conduct of public gathering and specify route and time for public procession, impose conditions on public meeting and public procession.

S17 of the Ordinance confers great discretion to the police to prevent the holding of or varying the route of public gatherings, stop or disperse public gathering, issue orders when they consider necessary to carry out their duties and can even use force when exercising their duties. The above powers can be exercised by the police whenever there is: no notification; any contravention to the requirements laid down in s.11 or s.15 of the Ordinance; contravention of the conditions imposed by the police; or under s.17, a likely occurrence of the breach of the peace.

Discretionary Power – Legality

The Ordinance confers power on CP to prohibit/object and to impose conditions on assembly whenever it is necessary for the legitimate purposes. The legitimate purposes in the Ordinance are definable yet very wide in concept. The similar wordings between the legitimate purposes in the Ordinance and the legitimate aims in the ICCPR do not guarantee the constitutionality of the former. This is due to the difference between a constitution which provides permissible objectives and standards of tests to the restrictions and a statute which create powers in practice. Therefore words at statutory level must be defined clearly and in a narrower scope than those used at constitutional level otherwise arbitrary powers restricting fundamental freedom will be created actively. [48] The argument that statute is legally certain as long as not “hopeless vague” was also questioned by Bokhary PJ in the 2005 Leung Kwok Hung case [49] , supporting that a certain degree of certainty is necessary at statutory level.

There are many other authorities supporting the importance of legality at statutory level. In African National Congress (Border Branch) & Another v Chairman, Council of State of the Republic of Ciskei [50] , it was decided that the bases used under the scheme, which are very similar to the legitimate purposes, for prohibiting public gatherings were too wide and not constitutional. In an US Supreme Court, Shuttleworth v City of Birmingham [51] , Steward J pointed out that whenever the exercise of fundamental freedoms was subjected to a license, it would be unconstitutional if the standards used to guide the licensing authority were too wide, subjective and indefinite. [52]

Thus, if the discretionary power under the Ordinance conferred upon CP is too wide and unconstitutional, there will be undue restrictions on fundamental freedoms. The court plays an important role as a last resort to interpret the wordings of a statute when it is written in a wide scope. Thus, the Court of Final Appeal’s handling over the Ordinance’s constitutionality in Leung Kwok Hung & Others [53] will be put on the spot. [54]

In the case, the majority of the court decided that the Ordinance is not precise in the legitimate purposes “public order (ordre public)” as the scope of the discretion was unclearly identified. In view of this, the court severs “(ordre public)” from the executive discretion leaving “public order” simply in the law and order sense. However, as was pointed out by the dissenting judgment of Bokhary PJ, even though the court severs “ordre public” from public order, the interpretation in the law and order sense remains a wide concept. So what is law and order? Is the regulation of traffic a sufficient basis to restrict the freedom for its being part of law and order in a society? In practice, the commissioners should not find their discretion in objecting assemblies or imposing conditions upon assemblies narrower than before the severance. [55] 56In this way, it seems that the severance had done nothing in safeguarding the freedom in reality. The wide scope of law and order also violates the principle established in Brokdorf Atomic Power Station Case [57] which emphasized that the legal interests to be protected against fundamental freedom should be somehow as important as that of the fundamental freedoms. Moreover, this can be misleading if emphasis is allowed to balance competing interests for the constitutionally guaranteed freedom should not be unduly yielded to other interests. [58]

The court in the Leung Kwok Hung case also omits the precision of other part of legitimate purposes apart from “public order (ordre public)” in the Ordinance. [59] While Bokhary PJ and Stock JA [60] managed to point out in their respective dissenting judgments of the 2005 and 2004 Leung Kwok Hung cases that “the protection of the rights and freedom of others” is also too wide and not circumscribed [61] , rendering the discretionary power of CP based on this legitimate purposes to be unconstitutional.

Moreover, under the Ordinance, the CP can exercise their powers whenever they “reasonably” think that will be necessary for those legitimate purposes. Here the requirement for CP to exercise their power is reasonableness which is subjective and not at all circumscribed. Although it would not be possible to outline every single situation which allows imposition of restrictions, the law should at least set a higher and clearer standard for restrictions upon fundamental freedoms by circumscribing them. At the end of the day, the domestic legislature should be understood by ordinary people. At this point, it will be worth mentioning what O’Regan said in the judgment of Dawood, Shalabi and Thomas v Minister of Home Affairs [62] that it was the legislature but not the constitution which gave guidance to limitations on fundamental rights.

If too wide a discretion on law is left to people, this will also contravene the principle of rule of law, a famous principle put forward by Professor AV Dicey [63] . If law is governed by people instead of the law itself, uncertainty of law [64] and arbitrary power would exist easily and this will make the constitutionally protected freedoms existed in names only.

Discretionary Power – Necessity, Proportionality and Rationality

Even if the legitimate purposes are legally certain, they may still be unconstitutional if they are not necessary, proportional or rational. [65] Legal certainty and proportionality are indeed closely interrelated. They serve similar purposes, one of them is to avoid arbitrary power. If the power conferred on CP in the Ordinance is not proportional, this can exclude people their right to exercise fundamental freedoms.

Restrictions should only be imposed whenever there is a real and direct risk towards those legitimate purposes making the restrictions necessary. [66] Although the court in the Leung Kwok Hung 2005 case insisted that there was a positive duty upon the government to maintain order in a society, [67] they neglected the fact that there exist other means (existing statutory legislations as mentioned before) which can attain the same purpose. Thus, the discretionary power is not “no more than is necessary”.

S17A creates an offence for people who fails to obey orders by the CP. The penalty in S17A can serve as a hurdle for people to exercise fundamental freedoms. The penalty under S17A can be up to three years imprisonment with a fine of $5000 and even 5 years imprisonment for indictable offences. [68] Other democratic society, like the United Kingdom [69] only imposes fines or 3 months imprisonment for similar offences. In view of this, the penalty in Hong Kong would be far heavier. Actually, the penalty under S17A is comparable to offence of inflicting grievous bodily harm on another in Hong Kong. [70]

Finally, the court in Leung Kwok Hung & Others stated that the appeal board and judicial review mechanism permitted under the Ordinance acted as a safeguard by the court on the discretionary power of the CP for it to meet the constitution’s requirement. [71] However, as suggested by Bokhary PJ, existence of the appeal board is merely a shift of the discretionary power from the CP to the appeal board and does nothing to help the constitutionality of the Ordinance. [72] In addition, a fundamental freedom protected in the constitution should be recognized in the statute and not to be left to the judiciary [73] , thus the power exercised by CP under the Ordinance should not be made constitutional simply by the existence of judicial review.

Breach of the Peace

S17 of the Ordinance provides that where people are reasonably believed by the CP to commit breach of the peace, the assembly will be regarded as unlawful and the police is allowed to control public assembly or procession.

However, “breach of the peace” is too wide in concept and the Ordinance does not provide a definition to it. If the expression means any kind of public disturbance, the police will be given too wide a power even to object assembly which might cause the audience to be stimulated. The problem here is that the lawfulness of an assembly might be determined by the audience and this creates a danger of the problem of “hostile audience” [74] . It is then questionable as to whether a person’s lawful act should be restricted by the other’s unlawful behaviour. A similar situation arises in the recent case of Chan Hau Man [75] , where a lawful demonstrator was removed by the police in order to prevent breach of the peace by the audience. One of the court’s justifications for the police’s act is that the angry audience largely outweighs the number of police there making it impossible to control those audience. [76] This demonstrated a way where “hostile audience” can restrict one’s exercise of the freedom. This also contravenes the view esta