Cheung Tak Wing v Director of Administration
Court of Appeal
Civil Appeal No 577 of 2018
Poon CJHC, Lam V-P and Barma JA
14–15 August 2019, 14 February 2020

Administrative law — Director of Administration — scheme requiring applications for use of East Wing Forecourt of Central Government Offices (CGO) for public meetings and processions — forecourt not open for such use on weekdays and Saturdays — scheme prescribed by law — not error of law for Director to start from premise that as landowner, Government could set conditions for admittance into CGO and forecourt — scheme not unconstitutional restriction of expression and assembly — Human rights — rights to freedom of expression and assembly —restrictions under scheme satisfied proportionality analysis — Basic Law arts. 6, 29, 105 — Hong Kong Bill of Rights Ordinance (Cap. 383) s. 8 arts. 16, 17

The Director of Administration (the “Director”), who was responsible for managing the East Wing Forecourt (the “Forecourt”) of the Central Government Offices (the “CGO”), implemented a scheme under which members of the public could apply to the Director for permission to hold public meetings or processions in the Forecourt on Sundays or public holidays between 10am and 6:30pm (the “Permission Scheme”), regardless of the number of participants. X’s application for permission to use the Forecourt for a public meeting from 9am to 7pm on a Friday was refused on the sole basis that the intended public meeting was to take place on a weekday (the “Decision”). X successfully applied for judicial review to challenge the Permission Scheme and the Decision. The Judge held that the restriction under the Permission Scheme was unlawful and unconstitutional for being inconsistent with the rights to freedom of expression and assembly under arts. 16 and 17 of the Hong Kong Bill of Rights (HKBOR). The Director appealed. 

Held, allowing the appeal and setting aside the judgment, that: 

Whether Permission Scheme prescribed by law 

1.   The Permission Scheme was prescribed by law. First, the restriction was imposed with legal authority as the Permission Scheme was implemented by the Director in the exercise of the Government’s common law right and duty as landowner of the CGO. Second, it was not disputed that the Permission Scheme was accessible to the public. Third, the restriction was formulated with sufficient precision to enable a citizen to regulate his conduct. Under the Guidance Notes, there was no scope for the Director to disallow an application on grounds other than public order and public safety and the orderly and effective operation of the CGO. Such criteria were acceptable and objectively assessable. (See paras. 47–57.)

Whether Permission Scheme unlawful 

2.   The Permission Scheme was not unlawful. There was no evidential basis for X to suggest that the Director had erred in fact in terms of the Government’s ownership of the land, nor was it an error of law for the Director to start from the premise that as landowner the Government could set conditions for permitting members of the public to enter into the CGO and the Forecourt. As manager of the CGO on behalf of the Government, the Director obviously had a duty to ensure activities in the Forecourt would not hamper the ordinary business operations of the CGO and the safety and security of those visiting or working there (HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 applied). (See paras. 61–64, 66.)

Proportionality analysis 

3.   The present case was not one in which competing rights were engaged. Neither property rights under arts. 6 and 105 of the Basic Law nor privacy rights under art. 29 of the Basic Law (“BL29”) were truly engaged in competition with the rights of a demonstrator under arts. 16 and 17 of the HKBOR. Although BL29 could be engaged in relation to one’s private offices, a private office was distinguished from the Forecourt of the CGO (HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 applied; HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 followed). (See paras.84–86, 90–93.)

4.   The standard of scrutiny in conducting the proportionality analysis should be “no more than necessary” rather than “manifestly without reasonable foundation”. Whilst the Director would have more experience than the courts in assessing these matters, it was also the duty of the Director to provide the court with the relevant information on such matters in assisting it to conduct the necessary assessment (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 followed; Tabernacle v The Secretary of State for Defence [2009] EWCA Civ 23 considered). (See paras. 97–101.)

5.   In identifying the legitimate aims, the contention that the Government’s property rights had no relevance was rejected. The aims identified by the Director were legitimate aims within the specified purposes provided for in arts. 16 and 17 of the HKBOR. The Government, as owner of the CGO, had the right to use the land where the Forecourt was situated and designed for its safe and effective use in furtherance of the operation of the CGO and as a passageway for its workers and visitors. The function of the Forecourt not being a place for demonstration or protest, the Director had a duty to take precautions so that the designated functions of the Forecourt were not compromised and was entitled to take account of the needs of those working at the CGO when attempting to strike a balance with the Government’s public law duty to facilitate expression of public opinion to Government officials. Further, it was a misnomer to call the Forecourt the Civic Square and therefore wrong to attribute symbolic significance to it as a special place for mass public protest (HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 considered). (See paras. 103, 109–111.)

6.   The Permission Scheme was rationally connected with the legitimate aims. Given the nature of meetings and processions, they would attract public attention, reporters and other people interested in or opposed to the same public issue or topic. Such activities could cause disruptions to the ordinary and peaceful use of the Forecourt as a passageway and even danger to those present in the passageway if they spilled over to the vehicular access. Thus, there was an obvious need to have some controls on the meetings and processions to be allowed at the Forecourt. (See paras. 115.)

7.   The restriction under the Permission Scheme was no more than necessary to achieve the legitimate aims. The Judge erred in law in disregarding the availability of alternative means of exercise of freedom of expression and demonstration at and in the immediate vicinity of the CGO. Whilst the significance of the manner and form of expression and demonstration had to be taken into account, the Permission Scheme should not be assessed in isolation from other measures adopted by the Government for receiving views from members of the public in or at the vicinity of the CGO. The designated public activity area (“DPAA”) situated just outside the CGO, as well as the Tamar Park, were no less effective as a demonstration locality compared with the Forecourt. Further, the Director was entitled to adopt a bright-line approach in formulating the policy of managing the Forecourt. Restrictions on the admittance to public or government buildings could not be said to be invalid due to the lack of reference to a residual discretion to cater for really exceptional circumstances (Appleby v United Kingdom (2003) 37 EHRR 38, Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, Kudrevicius v Lithuania (2016) 62 EHRR 34, HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 applied; HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371, Lai Man Lok v Director of Home Affairs [2017] 3 HKLRD 338, MTRC v Chow Nok Hang [2018] 2 HKLRD 1378 referred to). (See paras. 119–130, 136–138.)

In light of the other effective means available at or in the vicinity of the CGO, the extent of the incursion occasioned by the Permission Scheme on the right of freedom of expression and demonstration in general was limited. In the absence of exceptional circumstances causing oppressive unfairness to X and requiring the Director to depart from the policy set out in the Permission Scheme, a fair balance had been struck between the societal benefits of the encroaching measure and the inroads made into the guaranteed right (Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 applied). (See paras. 139–141.)

9.   (Obiter) The Director must have regard to the individual circumstances of each case in the actual administration of the Permission Scheme and the enforcement of the restriction. Such enforcement could not become an end in itself and was subject to the proportionality requirement (Kudrevicius v Lithuania (2016) 62 EHRR 34 applied). (See para. 142.)

Appeal

This was an appeal by the Director of Administration against the judgment of Thomas Au J granting an application for judicial review challenging a permission scheme implemented by the Director for use of the East Wing Forecourt of the Central Government Offices for public meetings and the Director’s decision refusing an application under the scheme (see [2018] 5 HKLRD 740). The facts are set out in the judgment.

Jurisdictions: