Criminal law and procedure — without written authority of MTR Corporation, posting matters, namely stickers, in concourse of MTR station being railway premises — burden on defence to prove existence of written authority — Mass Transit Railway By-laws (Cap. 556B, Sub. Leg.) s. 32(a) — Human rights — freedom of speech and expression — prohibition not unconstitutional and not unreasonably restrictive of freedom of expression — prohibition satisfied proportionality test
D was convicted of posting matter, namely stickers, on the railway premises at the concourse of an MTR Station without the written authority of the MTR Corporation Ltd (MTR), contrary to By-laws 32(a) and 43 of the Mass Transit Railway By-laws (Cap. 556B, Sub. Leg.). The Magistrate found that although the Hong Kong Bill of Rights (“HKBOR”) bound the MTR, the charge did not contravene the Basic Law (“BL”) or HKBOR, nor was it unconstitutional. Further, the phrase “unless authorized in writing by the [MTR]” in By-law 32(a) was a negative averment and so the burden was on D to prove it had written authority on the balance of probabilities. D appealed against conviction, arguing that: (a) the Magistrate erred in finding that By-law 32(a) was constitutional, given that the By-law was a blanket ban on posting matter on MTR premises without authority and was a disproportionate infringement of D’s freedom of speech and expression; (b) the Magistrate erred in finding that the prosecution had discharged its burden of proof on the constitutional issue, as it had not adduced evidence to prove the legitimate purpose of the making of the By-law and a rational connection with the legitimate purpose; and (c) the offence had not been proved as the phrase “unless authorized in writing by the [MTR]” was an element of the offence and not a negative averment, and the prosecution had only adduced hearsay evidence on this point. The prosecution did not dispute the applicability of the HKBOR or BL to the MTR, but contended that there was a clear legal basis for the restriction, and the phrase “without the written authority” was not an element of the offence.
Held, dismissing the appeal, that:
1) It was beyond question that the MTR was a public authority, and therefore pursuant to s. 7 of the Hong Kong Bill of Rights Ordinance (Cap. 383), the HKBOR was binding on it. The MTR was also bound by the BL. (See paras. 39-42.)
2) The restriction in By-law 32(a) had a clear legal basis and background reasons. Freedom of expression was not absolute and the By-Law only regulated one mode of expression by D. The By-law was not “across the board” and the arbitrary posting of stickers could block people or signage or affect the rights and interests of advertisers authorised by the MTR. The balancing exercise did not have to take account of the fact that stickers could be removed easily. Further, save where the MTR premises could be regarded as a public place for the purpose of the Public Order Ordinance (Cap. 245), railway premises were not public places but the MTR’s property. As such, the justification for the restriction in the By-law, namely to protect the property interests of the MTR, had to be given very substantial weight and the By-law satisfied the proportionality test (HKSAR v Ng Kung Siu  3 HKLRD 907, HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, HKSAR v Fong Kwok Shan (2017) 20 HKCFAR 425 applied). (See paras. 43-59, 62-64.)
3) It was not necessary for the prosecution to call the management of the MTR to give evidence, since a prosecution witness had testified that had there been approval for the authority to post stickers, he would have been notified about it. (See para. 60.)
4) The phrase “unless authorized in writing by the [MTR]” was not an element of the offence. Instead, it was a negative averment and exception to or exemption from the offence under s. 94A of the Criminal Procedure Ordinance (Cap. 221). As such, the burden of proving the existence of written authority lay on D on the balance of probabilities (Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601, Tong Yiu Wah v HKSAR (2007) 10 HKCFAR 324 distinguished). (See paras. 73-76.)
This was an appeal against conviction for posting matter on MTR premises without written authority contrary to By-laws 32(a) and 43 of the Mass Transit Railway By-laws (Cap. 556B, Sub. Leg.) imposed by Ms Debbie Ng in the Magistrates’ Court. The facts are set out in the judgment.