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HCAL 73/2013

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 73 OF 2013
_______________
BETWEEN

(CHEE FEI MING) Applicant
substituted by PUN LIN FA
pursuant to consent order dated 13.10.2014

and

DIRECTOR OF FOOD AND 1
st
Respondent
ENVIRONMENTAL HYGIENE

SECRETARY FOR J USTICE 2
nd
Respondent

LANDS DEPARTMENT Interested Party

_______________

HCAL 110/2013

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 110 OF 2013
_______________
BETWEEN

HUNG SHUI FUNG Applicant

and
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DIRECTOR OF FOOD AND 1
st
Respondent
ENVIRONMENTAL HYGIENE

SECRETARY FOR J USTICE 2
nd
Respondent

_______________

Before : Hon Poon J in Court
Dates of Hearing : 3 and 4 April 2014
Dates of Written Submissions : 12 and 27 August 2014
Date of J udgment : 15 October 2014

______________
J U D G M E N T
______________
A. INTRODUCTION
1. In Hong Kong, display of publicity materials on Government
land is regulated by Part IX of the Public Health and Municipal Services
Ordinance, Cap 132 (the Ordinance). Under the statutory scheme, a
person must first obtain written permission from the Director of Food and
Environmental Hygiene (the Director) before he can display publicity
materials on any Government land falling within the Directors purview :
section 104A(1)(b) read together with section 104E(1)(f). If he does so
without the Directors written permission, he commits a criminal offence :
section 104A(2). The Director may also remove the materials displayed
without his permission in contravention of section 104A(1)(b) : section
104C(1)(a).
2. Pursuant to section 142 of the Ordinance, the Director had by a
memo dated 23 April 2003 delegated his functions and powers under
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section 104A(1)(b) to 3 specified categories of officers of the Lands
Department (LD).
1
The delegation does not, however, preclude the
Director from exercising or performing at any time any of the powers or
functions so delegated. Since the delegation, LD has adopted a
Management Scheme for the Display of Roadside Non-commercial
Publicity Materials Implementation Guidelines for the purpose of
processing applications for permission to display such materials on public
roadsides under section 104A(1)(b) of the Ordinance (the Management
Scheme). As its name suggests, the Management Scheme only covers
the spots on public roadsides as designated for displaying non-commercial
publicity materials. It does not include all Government land that falls
within the Directors purview under section 104A(1)(b). So for any
Government land not covered by the Management Scheme, the powers and
functions under section 104A(1)(b) remain to be exercised by the Director.
3. The applicants in these judicial review proceedings are Falun
Gong (FLG) practitioners. They and other fellow FLG practitioners
have for years been staging what they describe as static demonstrations at
various locations in public places that fall within the Directors purview
under section 104A(1)(b). According to surveillance conducted by the
Food and Environmental and Hygiene Department (FEHD) in March
2013,
2
there are 26 of such locations all over Hong Kong where the FLG
practitioners hold the static demonstrations (the 26 Locations).
3

4. Publicity materials falling within section 104A(1) of the
Ordinance are always displayed on the 26 Locations for the purpose of the

1
They are Chief Estate Surveyor, Senior Land Executive and Principal Survey Officer
(Estate).
2
As part of the investigations referred to in 19 below.
3
They are listed in the Annex to this judgment.
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FLG static demonstrations. But no permission has ever been obtained
from either the Director under section 104A(1)(b) or LD under the
Management Scheme for displaying the publicity materials at any of the
26 Locations. Indeed, no application for permission to do so has ever
been made to either the Director or LD. It is because the FLG
demonstrators adamantly regard such application as an unreasonable and
unnecessary restriction of the lawful exercise of their freedoms of
demonstration, assembly and speech as guaranteed by the Basic Law and
the Hong Kong Bill of Rights.
5. In response to the recent enforcement actions undertaken by
FEHD under section 104C(1) of the Ordinance, the applicants took out the
present judicial review proceedings. Underpinning their case is their
constitutional challenge against section 104A of the Ordinance and the
Management Scheme.
6. Pursuant to my direction, a rolled up hearing was conducted on
3 and 4 April 2014. After hearing the parties, I reserved judgment.
7. On 6 August 2014, the court was informed by the applicants
solicitors that Madam Chee Fei Ming, the original applicant in HCAL
73/2013, sadly passed away on 20 May 2014. Despite her death, the
issues raised in her application, which are virtually identical to those raised
by Mr Hung Shui Fung in HCAL 110/2013, cannot be cursorily passed over
without determination because of the general public importance involved.
In the circumstances I exercised my inherent jurisdiction
4
and ordered, by
way of a consent order dated 13 October 2014, that leave be given to Ms

4
See River Thames Society v First Secretary of State and Others [2006] All ER (D)
105, 22 September 2006.
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Pun Lin Fa, another FLG practitioner, to substitute Madam Chee as
applicant so that HCAL 73/2013 can be properly disposed of.
B. BACKGROUND
8. The background facts leading to these judicial review
proceedings are outlined as follows.
B1. FLG demonstrations
9. FLG is a Buddhist movement first started in the Mainland in
1992. It has since attracted many followers both in the Mainland and
overseas. In about 1999, FLG was branded as a cult by the Mainland
authority. Since then, FLG practitioners have staged demonstrations in
different places overseas to protest against what they perceive as
persecutions of fellow FLG practitioners in the Mainland.
10. In Hong Kong, FLG practitioners have been staging static
demonstrations at the 26 Locations which they refer to as truth
clarification sites for years. The sites are manned by individual or
several FLG members. Typically, banners, placards or billboards are
affixed to the railings or other fixed objects on the roadsides at fixed hours
or even around clock. Some of the banners, placards or billboards are
sometimes free standing or fixed to portable frames. During the static
demonstrations, an individual or a group of FLG practitioners stand or
gather in front of the displayed materials, which form the backdrop of the
demonstrations. Occasionally the demonstrators distribute pamphlets to
the public. The demonstrations usually last for hours. At some of the
locations, the banners, placards or billboards are removed after the
demonstrations. But at some other locations, the materials are simply left
at the scene and continue to be displayed there around the clock.
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11. The applicants did not go to all the 26 Locations to join the
static demonstrations. They only went to some of them.
5

12. Mr Hung attended 3 of the 26 Locations only. They were
situated at (a) the exterior wall of Exit D2 of Sham Shui Po MTR Station
and the public area nearby (the SSP Site); (b) railing and public outside
Wai Fung Plaza, Argyle Street (the AS-WFP Site); (c) the pedestrian
precinct in Sai Yeung Choi Street near Shan Tung Street (the SYCSS
Site). It was Mr Hung who managed them. According to him :
(1) At the SSP Site, the FLG demonstrators had not affixed any of
the banners or placards to any roadside railings but to their
own loose portable frameworks. The frameworks were then
placed adjacent to the external walls of the MTR exit and the
subway entrance during the demonstration. Mr Hung was
responsible for the setting up and removal of the
demonstration materials. Demonstrations have been carried
out there since 2001.
(2) At the AS-WFP Site, small size placards are temporarily
affixed to the railings during the demonstration. They were
removed after the demonstration. Demonstrations have been
carried out at the Site since 2007.
(3) At the SYCSS Site, the banners and placards were not affixed
to any roadside railings. The FLG demonstrators placed them
within the pedestrian precinct near the pavement. The

5
There are 13 of such locations in total. Each of them is marked with an asterisk in
the list at the Annex. Although strictly the present judicial review proceedings do
not concern the other 13 locations not attended by the applicants, no issue has been
taken if they have the locus to mount the challenge in respect of those locations.
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materials were removed after the demonstration.
Demonstrations have been carried out at the Site since 2006.
13. Mr Hung had no responsibility for the demonstrations at other
locations.
14. Madam Chee joined the static demonstrations at 10 different
locations at Sai Wan, Tsim Sha Tsui, Mongkok, Wong Tai Sin and Lok Ma
Chau by mainly distributing pamphlets to the public. She herself was not
responsible for displaying the banners, placards or billboards at any of the
locations that she attends. On the evidence before me, it is not clear as to
who is responsible for so doing.
15. It is not in dispute that none of the 13 locations that the
applicants attended is the roadside designated spot under the Management
Scheme, which means that the Management Scheme has no application to
them at all. As to the other 13 locations which the applicants did not
attend, it is not clear from the evidence if the Management Scheme applies.
B2. HKYC demonstrations
16. The static demonstrations by the FLG members were by and
large peaceful and orderly.
17. However, since J une 2012, an organization called Hong Kong
Youth Care Association (HKYC) has been campaigning against FLG.
They staged demonstrations regularly against FLG at some of the
26 Locations, including the three Sites managed by Mr Hung. The FLG
demonstrators including the applicants considered the actions taken by
HKYC members at their demonstrations hostile because :
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(1) they displayed banners hostile to FLG, often in close proximity
to the FLG banners obstructing the publics view of the latter;
(2) they harassed, threatened and intimidated FLG demonstrators
by shouting abuse at them;
(3) they placed loudspeakers set at high volume very close to FLG
demonstrators, thereby causing severe discomfort; and
(4) a HKYC supporter had on one occasion brandished a knife at a
reporter at a FLG demonstration.
18. The FLG demonstrators complained that the HKYCs
activities had resulted in nuisance and annoyance, both to them and
occasionally to members of the public in the vicinity.
B3. Enforcement actions
19. Since mid-2012, FEHD had received a large number of public
complaints in respect of the unauthorized display of publicity materials by
FLG and HKYC. Following up on the complaints, FEHD conducted
investigations, which revealed that FLG and HKYC displayed their
publicity materials very close to each other and that there had been much
disputes and even physical acts of confrontation between members of FLG
and HKYC.
20. Between October 2012 and February 2013, The Ombudsman
also received complaints from some members of the public and
against FEHD about the prevalent unauthorized
display of publicity materials by FLG and HKYC in public areas and the
apparent inadequacy of enforcement actions taken by FEHD. The
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Ombudsman issued three investigation reports in May 2013 in which the
Ombudsman found that the complaints were partially substantiated.
21. In the meantime, the prevalence of unauthorized display of
publicity materials had also caught the attention of a LegCo member who
raised his concern at a LegCo meeting on 9 J anuary 2013.
22. In light of these developments, FEHD decided to step up the
enforcements actions against FLG and HKYC in respect of their
unauthorized display of publicity materials. Prior notice that enforcement
actions would be undertaken was given by :
(1) a press release issued by the Government on 2 April 2013
announcing that the relevant authority would step up
enforcement against unauthorized display of publicity
materials in public places;
(2) warning letters issued to the Hong Kong Association of Falun
Dafa
6
(FLG Association) and HKYC on 2 April 2013; and
(3) warning letters fixed on the unauthorized materials displayed
by FLG and HKYC on 5 April 2013, stating that FEHD
intended to take enforcement action without further notice.
23. A few days later, HKYC began to remove their displays.
24. However, the FLG demonstrators refused to heed FEHDs
warnings.
25. On 8 April 2013, 5 representatives of FLG practitioners,
namely, Mr Chow Wai Tung, Ms Liu Chau Lan (Ms Liu), Ms Chau Sing,

6
Registered under the Societies Ordinance, Cap 151 since 8 July 1996.
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Ms Ho Lai Ha and Mr Hui Kwok Hung (Mr Hui) met with FEHDs
Senior Superintendent KK Lam to discuss the matter. The applicants
case is that the FLG representatives explained to Inspector Lam that they
believed that their displays were a lawful exercise of free speech and of the
right to demonstrate, and for this reason FEHD should not take enforcement
action against the displays under the Ordinance. They also asked for a
stay of the enforcement action until their stance had been made known to
the Director. Senior Superintendent Lam told the FLG representatives that
he would explain the position to his superiors but he could not make any
promise in relation to the pending enforcement action. He further asked
for a note summarizing FLGs legal position on the displays as explained in
the meeting (the Note), so that he could explain it more easily to his
superiors.
26. On 12 April 2013, FEHD commenced enforcement action and
removed the publicity materials from the FLG demonstrations sites.
27. On 15 April 2013, Ms Liu handed the Note to Senior
Superintendent Lam. She asked him why enforcement action was being
taken without a response from FEHD to the points made at the meeting on
8 April 2013. In reply, Senior Superintendent Lam said legal advice had
been obtained. In a further written reply to another of the
5 representatives dated 22 April 2012, Senior Superintendent Lam stated
that all activity organizers must obtain permission from LD for displays of
materials on roadsides.
28. FLG representatives held another meeting with FEHDs
Superintendent KK Lai on 10 May 2013. The applicants case is that FLG
representatives went through the points in the Note one by one and queried
why enforcement was necessary. Superintendent Lai reiterated that the
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enforcement action was necessary as the displays without permission
contravened section 104A of the Ordinance. FLG representatives sought
clarification on the degree of tightening up of enforcement by FHED.
Superintendent Lai confirmed that all displays would be subject to
enforcement except hand-held displays not touching the ground. However,
once such hand-held displays touched the ground, it would also be subject
to enforcement action.
C. JUDICIAL REVIEW
29. The applicants then took out the present judicial review
proceedings. They sought to impugn the following decisions made by the
Director and the Secretary for J ustice (the Decisions collectively) :
(1) The decision taken on or before 12 April 2103, and publicly
notified on 5 April 2013, or alternatively on 22 April 2013, to
remove banners and placards from FLG demonstration
locations on the purported ground that their display was in
breach of section 104A of the Ordinance;
(2) The decision taken on a date unknown between 8 and 12 April
2013 to proceed with the 1
st
Decision notwithstanding the
representations made to the Director by FLG practitioners on
8 April 2013;
(3) The decision implemented on 24 April 2013 to confiscate
demonstration banners and placards and portable frames on
which they were displayed from the applicants; and
(4) The decision taken on a date unknown on or after 10 May
2013 to continue to remove banners and placards from FLG
demonstration locations on the purported ground that their
display was in breach of Section 104A notwithstanding
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representations made on 10 May 2013 by FLG representatives
to the Director.
30. The applicants raised a number of grounds to impugn the
Decisions, which boil down to four :
(1) They were unconstitutional in that they unlawfully infringed
the applicants freedoms of demonstration, assembly and
speech as protected by Article 27 of the Basic Law and
Articles 16 and 17 of the Hong Kong Bill of Rights
(Ground 1).
(2) They were unconstitutional insofar as they were taken because
of public order problems created by persons opposed to the
applicants demonstrations and/or to other peaceful
demonstrations by FLG practitioners (Ground 2).
(3) They were unlawful because they were based on a policy
which unlawfully discriminated against disabled persons and
women contrary to the Disability Discrimination Ordinance,
Cap 487 and the Sex Discrimination Ordinance, Cap 480
respectively (Ground 3).
(4) They involved a change of important published policy which
was contrary to the applicants legitimate expectation that
either it would not be changed or would not be changed
without prior consultation (Ground 4).
31. The applicants sought, among other things, a declaration that
the seizure of the banners and placard pursuant to the Decisions was
unlawful, a declaration that section 104A of the Ordinance does not
prohibit, or require approval to be obtained for, reasonable display of
banners or placards at moving or static demonstration; a certiorari to quash
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the Decisions; return of the banners and placards seized; and damages
including aggravated and exemplary damages in the event that those
banners and placards had been destroyed.
32. I will examine Grounds 1 to 4 in turn.
D. GROUND 1
D.1 Constitutional provisions
33. Article 27 of the Basic Law guarantees that :
Hong Kong residents shall have freedom of speech of
assembly and of demonstration
34. Such freedoms may however be restricted as prescribed by
law : see Article 39(2) of the Basic Law.
35. Article 16(2) of the Hong Kong Bill of Rights protects the
freedom of expression thus :
(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.
36. Similarly, the protection is not absolute as Article 16(3)
provides :
(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.
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37. Article 17 of the Hong Kong Bill of Rights provides that the
right of peaceful assembly shall be recognized. It goes on to deal with
restrictions :
The right of peaceful assembly shall be recognized. No
restrictions may be placed on the exercise of this right other than
those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the
rights and freedoms of others.
38. The freedoms of speech, peaceful assembly and demonstration,
protected by Article 27 of the Basic Law, Articles 16 and 17 of the Bill of
Rights, are all fundamental rights. They are precious and lie at the very
foundation of Hong Kong as a democratic society. As the majority of the
Court of Final Appeal
7
put it in Leung Kwok Hung & Others v HKSAR
(2005) 8 HKCFAR 229 :
2. These freedoms are of cardinal importance for the stability
and progress of society for a number of inter-related reasons.
The resolution of conflicts, tensions and problems through open
dialogue and debate is of the essence of a democratic society.
These freedoms enable such dialogue and debate to take place and
ensure their vigour. A democratic society is one where the
market place of ideas must thrive. These freedoms enable
citizens to voice criticisms, air grievances and seek redress. This
is relevant not only to institutions exercising powers of
government but also to organizations outside the public sector
which in modern times have tremendous influence over the lives
of citizens. Minority views may be disagreeable, unpopular,
distasteful or even offensive to others. But tolerance is a
hallmark of a pluralistic society. Through the exercise of these
freedoms minority views can be properly ventilated.
39. Although these fundamental rights are not absolute, they are
jealously protected by our courts. As the Court of Final Appeal said, the
courts must give those fundamental rights a generous interpretation so as to

7
Consisting of Li CJ, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ ; Bokhary PJ
dissenting.
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give individuals its full measure. At the same time, the courts must
narrowly interpret restrictions of such fundamental rights. The burden
rests with the Government to justify any restriction. In considering if the
Government has discharged its heavy burden, the courts must be vigilant in
the protection of fundamental rights and must rigorously examine any
restriction that may be placed on them. See Leung Kwok Hung, supra, at
16.
D.2 Constitutional requirements for restriction
40. There are two constitutional requirements for restriction.
41. First, the restriction must be prescribed by law (the prescribed
by law requirement).
42. This requirement mandates the principle of legal certainty.
To satisfy this principle, certain requirement must be met. It must be
adequately accessible to the citizen and must be formulated with sufficient
precision to enable the citizen to regulate his conduct. There is an
inevitable tension between requiring a law to be formulated with sufficient
precision and the desirability of avoiding excessive rigidity in the law.
The appropriate level of precision must depend on the subject matter of the
law in question. A law which confers discretionary powers on public
officials, the exercise of which may interfere with fundamental rights, must
give an adequate indication of the scope of the discretion. The degree of
precision required of the law in this connection will depend upon the
particular subject matter of the discretion. See Leung Kwok Hung, supra,
17(1), 25-29.
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43. Second, the restriction must be necessary in a democratic
society in the interest of national security or public safety, public order
(ordre public), the protection of public health or morals or the protection of
the rights and freedoms of others (the necessity requirement). These
purposes are often referred to as legitimate purposes.
44. This requirement involves the application of a proportionality
test, which should be formulated in these terms :
(1) the restriction must be rationally connected with one or more
of the legitimate purposes; and
(2) the means used to impair the right in question must be no more
than was necessary to accomplish the legitimate purpose in
question.
See Leung Kwok Hung, supra, 17(2), 33-38.
45. Having discussed the constitutional provisions and the general
requirements for restriction, I now turn to the regulatory scheme in Part IX
of the Ordinance.
D.3 Regulatory regime in Part IX
46. In gist, under the regulatory scheme, a person must first make
an application to the Authority for permission to display publicity materials
on Government land. If permission is granted, he must maintain the
display in a clean and tidy condition to the Authoritys reasonable
satisfaction. If an applicant displays the publicity materials without the
Authoritys permission, or even if permission is granted but he does not
maintain the materials as required, he commits a criminal offence. The
Authority can remove the publicity materials that he displayed and recover
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the removal costs against him. Below is a more detailed description of the
regulatory scheme.
D3.1 Overview of Part IX
47. Part IX consists of sections 104, 104A, 104B, 104C, 104D,
104E and 105.
(a) Section 104
48. Section 104 empowers the Secretary for Food and Health as
the designated Authority
8
to make regulations for control of advertisements.
It is irrelevant for present purposes. The regulations made are the
Advertisements Regulations, Cap 132B. As will be seen shortly, they are
also irrelevant for present purposes.
9

(b) Section 104A
49. Section 104A was first introduced into the Ordinance in 1973,
which read :
The Authority may remove from any building, hoarding or other
structure any bill or poster which, by reason of its condition, is in
the opinion of the Authority unsightly.
50. The Authority was then defined as the Urban Council (for
urban areas) and the Director of Urban Services (for the New Territories
excluding New Kowloon).
10
No prior approval of the Authority was
required for display of bills and posters on Government land. And the

8
See sections 2 and 3 and the Third Schedule of the Ordinance.
9
See 101 and 134 below.
10
See sections 2 and 3 and the Third Schedule of the 1973 version of the Ordinance.
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only ground upon which the Authority might remove any bill or poster was
unsightliness.
51. In 1980, new amendments were introduced as a package
consisting of the new sections 104A and 104E to tighten the then
ineffectual controls over environmental nuisance caused by the
indiscriminate posting of bills and posters.
11
Over the years, various
changes were made to the list of designated Authority in Section 104E in
alignment with corresponding changes in related Ordinances and to cater
for the reorganization of the provision of municipal services by the
Government. In 1998, the references to Crown were all changed to
Government. Other than those changes, the new amendments have
remained the same since their enactment in 1980.
52. Section 104A(1) provides :
(1) No bill or poster shall be displayed or affixed
(a) on any private land, except with the written permission
of the owner or occupier thereof;
(b) on any Government land, expect with the written
permission of the Authority.
53. The term bill or poster has a wide definition. It includes
any word, letter, model, sign, placard, board, notice, device or
representation and also includes any advertisement painted on any wall,
fence, railing, post, rock, road-cutting or tree but does not include any
structure, apparatus or hoarding used for the display of a bill or poster :
section 104E(4).

11
See the speech of the then Secretary for the Environment when he moved the second
reading of the Public Health and Urban Services (Amendment) Bill in LegCo on
30 January 1980, Hong Kong Hansard of the same date, at pp 354-355.
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54. There is no definition for Government land. The term
land is defined to include any building, erection on land, whether a
fixture or not : section 104E(2)(a).
55. Section 104A(2) goes on to create an offence by providing :
A person displaying of affixing a bill or poster in contravention of
subsection (1) commits an offence.
(c) Section 104B
56. Section 104B(1) requires bills and posters displayed on any
private land or Government land to be maintained in a clean and tidy
condition to the satisfaction of the Authority. Sub-section (2) creates an
offence for displaying a bill or poster in contravention of sub-section (1).
Sub-section (3) deals with the specific requirement of notice before a
prosecution under section 104B could be brought.
(d) Section 104C
57. Section 104C covers displays on both private land and
Government land without permission. Sub-section (1) empowers the
Authority to remove a bill or poster displayed in contravention of section
104A(1) or a bill or poster not maintained in a clean and tidy condition as
required under section 104B(1) : subparagraphs (a) and (b) respectively.
The Authority may also recover the cost of removal from the person
displaying the bill and poster as a civil debt. Sub-section (2) empowers
the court to order the person convicted of an offence under either section
104A(1) or section 10B(1) to pay the estimated cost or removing the bill or
poster in respect of which the offence was committed. Sub-section (3)
deals with materials displayed on private land. It is irrelevant for present
purposes.
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(e) Section 104D
58. Section 104D contains certain deeming provisions, which is
also immaterial to the present case.
(f) Section 104E
59. Section 104E is a definition section. Sub-section (1)(b) to
(f)
12
designate different Government departments and officials and public
authorities with management and control of land as the Authority for the
purposes of section 104A, 104B and 104C. For example, in respect of
land within a country park or special area as defined in the Country Parks
Ordinance, Cap 208, the Director of Agriculture, Fisheries and
Conservation is the Authority : sub-paragraph (d). Under sub-paragraph
(f), in respect of Government land not referred to in section 104E(1)(b) to
(e), the Director is the Authority. Sub-sections (2) to (4) deal with the
definitions of land, occupier and bill or poster. Significantly,
sub-section (5) provides that nothing in Part IX of in any permission
granted under section 104A shall operate so as to affect any obligation or
liability imposed or incurred under any other enactment in relation to the
display of any bill or poster.
(g) Its efficacy
60. In sum, Part IX regulates displays of publicity materials on
Government land by virtue of :
(1) Section 104A(1)(b), a permission-seeking provision for
displaying of bills and posters on Government land;

12
Section 104E(1)(a) and (g) had been repealed.
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(2) Section 104A(2), an offence-creating provision for displaying
of bills and posters in contravention of section 104A(1)(b);
(3) Section 104B(1), a maintenance-keeping provision for
displaying bills and posters in a clean and tidy condition to the
reasonable satisfaction of the Authority;
(4) Section 104B(2), another offence-creating provision for
displaying of bills and posters in contravention of section
104B(1);
(5) Section 104C(1), an enforcement-enabling provision for
removal of bills and posters displayed in contravention of
section 104A(1) or section 104B(1) and recovery of the costs
of removal; and
(6) Section 104C(2), another enforcement-enabling provision
allowing the court to order recovery of the removal costs upon
conviction of an offence under section 104A(1) or section
104B(1).
61. Plainly, the efficacy of the statutory scheme depends not only
on section 104A(1)(b) and section 104B(1). It also hinges on the back up
provided by section 104A(2) and section 104B(2) in terms of criminal
sanction and section 104C(1) and section 104C(2) in terms of enforcement
action when the display is made in contravention of section 104A(1) or
section 104B(1). Indeed, without the backup, whether by criminal
sanction or enforcement action, the regulatory regime is but toothless.
D3.2 Management Scheme
62. As said, the Management Scheme is devised for implementing
section 104A(1)(b) of the Ordinance in connection with designated spots on
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public roadsides which fall within the purview of the Director. As such, it
is part of the regulatory scheme in Part IX of the Ordinance.
63. LD first promulgated the Management Scheme in May 2003,
soon after the Director delegated his functions and powers under section
104A(1)(b) to LD on 23 April 2003. The Management Scheme was
recently revised in August 2011. It is the only scheme that the Director or
LD has ever published for the purpose of section 104A(1)(b).
(a) Its genesis
64. Before the delegation, LD had been dealing with display of
publicity materials on highways for years already. The history of how LD
dealt with the matter leading up to the promulgation of the Management
Scheme in May 2003 and its revision in August 2011 is detailed in the
affirmation of Ms Lam Wai-ha, Olga, Assistant Director of LD dated
29 J anuary 2014, at 10 to 36. Below is a brief summary, highlighting
some of the more salient points.
65. LD had been dealing with display of publicity signboards and
banners on highway structures before 1993. In view of the growing
tendency for political organizations and public figures to put up signboards
to promote their platforms and publicise their community services and the
trend that these publicity signboards were not always related to specific
events, a pilot scheme was implemented in Wan Chai District for a trial
period of two months (1993 Pilot Scheme). The 1993 Pilot Scheme was
considered workable but was not immediately extended territory-wide
because of resource constraints.
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66. In reviewing the 1993 Pilot Scheme, the Administration noted
that it was necessary to strike a balance between environmental
considerations and the legitimate need of organizations to advertise in
public places and also necessary to impose appropriate conditions on the
number of permitted display materials, the duration of display periods as
well as sizes of display materials. The policy on the display of publicity
materials in public places was formulated with the protection of public
interest in view and that this policy was applied to all groups in the same
way in order to avoid favourable treatment being given to any group over
other groups in respect of similar types of activities.
67. Between November 1996 and April 1997, another pilot
scheme was put in trial in Wan Chai District (1996 Pilot Scheme) to test
the feasibility of a new control scheme, which was designed in response to
publics complaints about the nuisance created by the prevalent displays of
unauthorized non-commercial publicity material at public places. Under
the 1996 Pilot Scheme, 100 suitable spots were identified in Wan Chai
District and designed for the display of non-commercial publicity materials.
Of these 100 designated spots, 15 were reserved for District Office/Wan
Chai, and 15 were reserved for Government departments use. For the
remaining 70 designated spots, half was for Wan Chai-related activities
while the remaining half was for Wan Chai-not-related activities.
68. The 1996 Pilot Scheme ended in April 1997. In reviewing
the 1996 Pilot Scheme, the Administration noticed a visible improvement in
the environment of the district. The amount of the unauthorised publicity
materials was markedly reduced to a few dozen posters/banners etc
compared with hundreds before implementation of the 1996 Pilot Scheme.
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69. The 1996 Pilot Scheme was considered a success as it enabled
the Administration to take more effective and efficient enforcement action
against the display of unauthorized publicity materials, and was supported
by the then Wanchai District Board and by the local residents. Proposal
was made to extend the scheme territory-wide. With that proposal in mind,
LD devised the Management Scheme in 2003. The District Lands Offices
of LD identified suitable designated spots for implementation of the
Management Scheme in consultation with the District Management
Committees in their respective districts. Two rounds of consultation were
conducted for this purpose with the stakeholders including the LegCo and
the 18 District Councils between 1998 and 2002. The Management
Scheme was implemented in May 2003 after the Director had made the
delegation in April 2003.
70. In 2008, the Ombudsman published a report detailing
recommendations on how to improve the 2003 Management Scheme.
Ms Lam noted :
40. In paragraph 1.1 of the Ombudsman Report 2008, it was
stated that :
Publicity banners at roadside have for years been a
feature of Hong Kongs street scene. By nature, these
banners constitute a form of encroachment upon public
space and may cause visual obstruction and pollution.
Where they block sightline and distract motorists or wear
out and come loose, they post traffic hazard, for drivers
and pedestrians. Display of such banners should,
therefore, be properly monitored and controlled.
41. In paragraphs 1.3, 1.4 and 1.5 of the Ombudsman Report
2008, it was stated that the Ombudsman had completed a direct
investigation assessment in August 2006 on whether appropriate
measures were in place to prevent proliferation of roadside
banners and to ensure their secure installation and timely removal.
On completion of the assessment, the Ombudsman made a
number of suggestions to Lands D and FEHD, such as limiting
the number of designated spots, tightening the criteria for
designation of spots, imposing requirements to ensure tidiness,
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removing dilapidated banners in a timely manner and keeping
statistics. Despite the aforesaid developments, complaints had
continued to be lodged with the Ombudsman Office on how
roadside banners were being used. The Ombudsman saw a need
to examine the 2003 Management Scheme in greater detail and,
on 19 September 2008, informed the Lands D of her decision to
initiate a direct investigation under section 7(1)(a)(ii) of the
Ombudsman Ordinance (Cap 397). The aforementioned was the
background giving rise to the Ombudsman Report 2008.
42. In paragraph 2.3 of the Ombudsman Report 2008, the
Ombudsman commented that the display spots were prime sites
on public streets and certain parties being authorised to display
their materials at such spots were indeed a privilege at public
expenses. In paragraph 4.1 of the Ombudsman Report 2008, it is
stated that :-
The Scheme involves, and in a way impacts on, the rights
of citizens to traffic safety, unimpeded movement and a
pleasant environment. The banner spots provided under
the Scheme are prime spaces at public locations. To this
extent, [Legco and/or DC members] or organisations
allocated the spots enjoy a concession at public expenses.
Sacrifice of such rights ought to be justified on grounds of
public interest and use of the spots, properly controlled.
There should be stringent rules to ensure the proper use of
these valuable concessions, hence, the need for a clear
statement of the objective of the Scheme and due
compliance with any rules for its proper administration.
It is important for Lands D staff and the public to
appreciate why the spots are made available to certain
individuals and organisations and why it is necessary to
control the use of the spots.
43. Paragraph 5.1 of the Ombudsman Report 2008 stated that : -
Many prominent cities in the world place much emphasis
on protecting the aesthetics of their public space. An
attractive cityscape can contribute to economic benefits
and better quality of life. Proliferation of roadside
banners, often dirty and tatty, is widely regarded to be
detrimental to the outlook of a city. Furthermore, many
city authorities spare no effort to guard against the traffic
hazard posted by roadside banners.
71. The Administration took into account the Ombudsmans
recommendations and after consulting the LegCo and the District Councils
in 2010 and 2011. The Management Scheme was then revised in August
2011.
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(b) Overview of the Scheme
72. In its current form, the Management Scheme states in Part 1
that it aims at ensuring that the display of roadside publicity materials :
(a) is for the purpose of the promotion of public awareness of
matters of general and significant community interests of
non-commercial nature. In this connection, priority will be
given to such display which is by Legislative Council (LegCo)
and District Council (DC) Members to communicate with their
constituents, which seek to promote public awareness or
participation in matters of district administration and community
building, and which is by the Government to promote important
public events and campaigns such as
(b) is permitted in an orderly fashion of those classes of person
specified in the Management Scheme at spots designated by the
Authority;
(c) will not prejudice the safety of pedestrians and motorists
using the road concerned; and
(d) is subject to such other terms and conditions provided in the
Management Scheme such as the maintenance and removal of
banners.
73. Pursuant to Part 2, designated spots will, upon application and
subject to availability, be allocated to members of the Legislative Council,
members of the District Councils, District Councils and their committees,
Government departments and non-profit making bodies. As evident from
the application form, applications by individuals other than members of the
LegCo or the District Councils will not be entertained. Ms Olga Lam
explained the apparent preferential treatment thus :
52. Given the scarcity of the land resources, the Administration
has taken the view that it is necessary to prioritize the allocation
of the designated spots under the Management Scheme, especially
in light of traffic safety and proper cityscape considerations.
Under the Management Scheme, priority is accorded to LegCo
and DC members because they represent group interests, namely,
the interests of the electorates who cast their votes for the elected
members. Display of roadside [publicity materials] serves as a
major way for the LegCo and DC members to keep their
constituents informed of their work and community activities. It
is also considered that LegCo and DC members, non-profit
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organisations and Government departments shall be accorded
with priority because they often publicise matters of a public
nature for the promotion of public awareness of matters of general
and significant community interest.
74. Parts 3 and 4 specify the term of the display and the size of
publicity materials.
75. Part 5 specifies that :
Designated spots will be located on the roadside only excluding
expressways, flyovers and the external faces of footbridges.
76. Part 6 designates various no banner zones according to road
safety purposes.
77. Part 7 deals with the contents of publicity materials in these
terms :
(a) The display of roadside publicity materials is for the
purpose of the promotion of public awareness of matters of
general and significant community interest of non-commercial
nature. In this connection, priority will be given to such display :
(i) which is by LegCo and DC Members to communicate
with their constituents, which seeks to promote public
awareness or participation in matters of district
administration and community building; and
(ii) which is by the Government to promote important
public events and campaigns such as the East Asia
Games, Keep Hong Kong Clean and Anti-Drug
Abuse;
(b) the information imparted must comply with the
requirements below :
(i) the information must not promote any commodities,
services provided at a fee, fee paying training courses
and activities. (However, the restriction does not
apply to services, training courses and activities
co-organised by government departments. For these
cases, written confirmation from concerned government
departments is required);
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(ii) there should be conspicuous and clear indication on the
display itself of the individual or organisation allocated
the spot. The individual or organisation must be the
chief beneficiary of the display;
(iii) publicity materials containing names and logos of
commercial firms or non-profit making bodies such as
the Community Chest sponsoring non-profit making
public activities are subject to the prior approval of the
District Lands Officer and the aggregate size of the
names and logos of the sponsors shall not be larger than
one tenth of the area of the publicity material;
(iv) the contents of the publicity materials to be displayed
shall be in compliance with the laws of the Hong Kong
Special Administrative Region. No publicity
materials of an obscene or objectionable nature shall be
displayed; and
(v) no commercial advertisement shall be permitted.
(c) The grant of a permission does not imply any endorsement
or approval of the contents of the publicity materials by the
Government of the Hong Kong Special Administrative Region or
its officers.
78. Part 8 deals with processing of applications.
79. Part 9 prescribes the manner of how to display and manage the
publicity materials concerned. It ends with this warning :
(g) Publicity materials which are unauthorized or not in
compliance with these implementation guidelines and/or any of
the terms and/or conditions that the District Lands Officer has
imposed in relation to the relevant permission will be removed by
[the Director] without prior notice pursuant to his authority under
[the Ordinance]. [The Director] may take legal action and claim
removal expenses against the parties concerned.
80. Importantly, the Management Scheme is limited in two ways.
First, it only covers the spots on public roadsides as designated. Second,
an individual cannot apply under it unless he is a LegCo or District Council
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member.
13
However, as the Director has expressly reserved all the
functions and powers under section 104A(1)(b) to himself despite the
delegation to LD in April 2003, any application to use any Government
land falling outside the Management Scheme or any application by an
individual member of the public (whether or not the spot for the intended
display falls within the Management Scheme) may be made to the Director
directly.
D3.3 Legitimate aims of the regulatory scheme
81. In my view, the regulatory scheme in Part IX of the Ordinance
together with the Management Scheme (where applicable), serves the
following legitimate aims.
82. First, it strives at protecting and preserving the cityscape of
Hong Kong.
83. A cityscape is the view or outlook of a city. It is the citys
urban scenery. It helps define its image and character. It reflects the
living and synthesis of its citizens. It is the backdrop to their daily lives
and activities. An attractive and well-maintained cityscape is very often a
testimony to the citys success. It betters the quality of life. It attracts
tourists, too. It is indeed a huge public asset.

13
It is because since 2000 no application had ever been received from or made by
individuals who were not LegCo or District Council members for permission to
display bill or poster on Government land under section 104A. It was therefore
considered that the need to specifically devise another scheme had not arisen yet.
See the affirmation of Ms Olga Lam dated 29 January 2014, at 59.
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84. Our Government promotes Hong Kong as Asias world city.
To this end, Hong Kong, like any prominent city in the world, needs to
protect and preserve its cityscape and the aesthetics quality of public places.
85. The regulatory scheme ensures that our cityscape and public
places would not be subject to environmental nuisances and pollutions
caused by haphazard, tardy or unsightly displays of publicity materials and
its proliferation. It confers on the Authority and its delegate the discretion
to refuse or give permission and in the latter case to impose conditions on
the displays as required by the circumstances of the case. It prohibits
displays of materials displayed without the Authoritys permission. It
subjects the person who contravenes section 104A(1) and section 104B(1)
to criminal sanction. It empowers the Authority to take enforcement
action to timely remove the materials displayed in contravention of section
104A(1) or section 104B(1).
86. More specifically, the Management Scheme keeps the displays
within reasonable bounds by :
(1) designating spots for displays of publicity materials, thus
limiting its number and locations where they appear to a
reasonable extent;
(2) specifying the dimensions of the publicity materials, thus
keeping them within a reasonable size;
(3) specifying the duration of the displays, thus limiting their
occupation of the spots within a reasonable time; and
(4) requiring the persons displaying the publicity materials to
manage them properly in the way as specified, thus ensuring
that they are tidy and orderly and that dilapidated displays are
removed timely.
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87. Second, Hong Kongs public places are public resources
available to all its citizens. They are open to all for lawful and reasonable
use and enjoyment. Nobody has or can possibly claim any monopoly of
enjoying or using the public places in any way as he sees fit to the
exclusion of his fellow citizens or in total disregard of their legitimate
interests. The regulatory scheme ensures that where ones use of the
public places involves displaying publicity materials, it will not unduly
interfere with other citizens use or enjoyment of the same for other
legitimate purposes. For example, it prevents environmental nuisances
and pollutions, which the latter might justifiably regard as an encroachment
on the public amenities that they are entitled to use and enjoy. It reduces
the traffic risks that publicity materials may impose on other public road
users who would rightly regard safety as a prime concern. In short, it
balances the competing interests between displayers on the one hand and
other citizens on the other over the use and enjoyment of public places.
88. Third, given the scarcity of public places and the growing
demand for displaying publicity materials, the regulatory scheme ensures
that, as far as the actual circumstances reasonably allow, there would be a
fair and if necessary, as in the case where the Management Scheme applies,
a reasonably prioritised distribution of available spots for displays among
the displayers.
89. Fourth, most of the displayers would naturally opt for popular
spots to display their materials. But popular spots are very limited. In
the absence of control, chaos would arise when different displayers flock to
the same spots. Chaos might easily deteriorate into serious disputes,
commotion or even physical violence when competing groups pursuing
diametrically opposing interests seek to display their materials at the same
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spots at the same time. The social costs involved could be huge. The
facts leading to the present judicial reviews are a vivid example of the kind
of social conflict that could happen in a wholly unregulated environment.
In imposing control, the regulatory scheme minimizes the risk of such
unpleasant and sometimes unlawful incidents.
90. Fifth, when publicity materials are displayed on public
roadsides, they can pose considerable traffic risks to road users. The
regulatory scheme, in particular the Management Scheme, ensures that
displays of materials on the roadsides are properly monitored and
controlled so that the traffic risks might be reduced.
91. Sixth, as the displays of publicity materials on public places
are making use of public resources, they should not be made for any
commercial gain or any other purpose which is inconsistent with public
good or interest. The Management scheme ensures that the contents of the
publicity materials are not commercial in nature, defamatory, indecent or
otherwise unlawful.
D3.4 Restrictions on the exercise of freedoms
92. That said, having regard to the principles stated in 3339
above, there can be little doubt that the regulatory scheme in Part IX of the
Ordinance also restricts the exercise of the freedoms of expression,
assembly and demonstration as guaranteed by Article 27 of the Basic Law,
Article 16 and 17 of the Bill of Rights.
93. There are many modes of exercising the freedoms of
expression, assembly and demonstration. Whichever mode is to be
adopted, the main consideration basically appears to be the same : to
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communicate to others the views held or advocated by the persons
exercising the freedoms in what they perceive as the best or most effective
way, with a view to promoting their agenda or advancing their cause as far
as the circumstances may reasonably permit. They would choose a
particular mode which would best suit their purpose. They would also
favour a particular mode which would give their views a wide and, if
possible, a constant exposure, and which would easily attract the attention
of their target audience, the media and the public at large.
94. As a mode of exercising the freedom of expression, displaying
publicity materials on public areas, especially in areas frequented by the
public or the targeted audience, has the obvious advantage of publicizing
the views in a rather expedient way; and of giving the views a wide
exposure and even a lengthy and continuous exposure, if the display has a
degree of permanency. When, as is the present case, publicity materials
displayed at a particular location forms the backdrop of an assembly or
demonstration held there, the display is conducive to the persons exercise
of their freedoms of assembly and demonstration in such a way.
95. Section 104A(1)(b), as a permission-seeking permission,
restricts a persons exercise of his freedoms of expression, assembly and
demonstration by requiring him to obtain written permission from the
Director before he can display publicity materials used for such purpose.
As an important feature of the permission-seeking regime, the Management
Scheme imposes the same restriction as section 104A(1)(b) does and other
restrictions on the location, size, duration and contents of the displays of
publicity materials that fall within its scope.
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96. Section 104A(2), the offence-creating provision, imposes the
restriction by subjecting the displayer to criminal sanction if he contravenes
section 104A(1)(b).
97. Section 104C(1), the enforcement-enabling provision, imposes
the restriction by empowering the Director to remove the publicity
materials displayed in contravention of section 104A(1)(b) when such
materials may be instrumental or conducive to the exercise of the
freedoms.
14

98. The next crucial question is to identify for present purposes the
provision that needs to be scrutinized constitutionally and to see if it
survives the scrutiny.
D4. Constitutional scrutiny
D4.1 The applicants contentions
99. The applicants primary argument in support of Ground 1 is
that both section 104A and the Management Scheme are unconstitutional as
they unlawfully infringe the FLG demonstrators exercise of the freedoms
of demonstration, assembly and expression. Their case is best
summarized by Mr Hui in his 2
nd
affirmation :
9. to require [FLG] practitioners to obtain permission for
display of their demonstration banners by any kind of prior
approval process is an unreasonable and unnecessary restriction
of the lawful exercise of the freedoms of demonstration, assembly
and speech as protected under the Basic Law and the Bill of
Rights. For the avoidance of doubt, my contention is that any
approval process is such an unreasonable and unnecessary
restriction, irrespective of which particular approval method is
imposed, and irrespective of whether or not a system operated for

14
I leave out sections 104B(1), 104B(2) and 104C(2) for present purposes as they do
not feature in these proceedings.
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the grant of approval involves a management scheme or any
particular management scheme.
100. In developing the applicants case, Mr Harris, SC focused on
the proportionality requirement. He argued that section 104A has no
application when the applicants were demonstrating in a reasonable manner
when the demonstration only lasts for hours and the publicity materials are
removed afterwards. In such scenario, no prior permission from the
Director for displaying the publicity materials is required. He did not
object to a regulatory scheme for unauthorized publicity materials. What
he objected to is simply to the inappropriate application of that scheme to
demonstrators banners. He did not argue that permanent displays of
publicity materials in public places should be excluded from regulation.
He however argued that banners displayed at the applicants demonstrations
are not subject to regulation as they are not permanent, being removed after
every demonstration. He did not contest that the regulatory scheme can
serve a legitimate aim which includes controlling traffic risks. But he
contested that it cannot be legitimate to apply to scheme to banners
displayed for a limited period as part of a demonstration. Referring to the
definition of a bill or poster in Section 104A(1) of the Ordinance, he
contended that the scope of section 104A is unduly wide. Referring to
Part 7 of the Management Scheme, he further argued that prior regulation
of the content of political speech is deeply objectionable. He accepted that
the regulatory scheme engages free speech issues and it is a permissible
restriction on free speech because of public order and public amenity
importance of not having unrestricted displays of publicity materials.
However, he argued that only when the applicants were demonstrating in a
reasonable manner did it become permissible to rely on section 104A. He
therefore contended that section 104A should be read down so that the
applicants right to display publicity materials for the purpose of their
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demonstrations. In support of his contentions, Mr Harris relied on HKSAR
v Yeung May Wan & Others [2004] 3 HKLRD 797, Westminster City
Council v Brian Haw [2002] EWHC 2073 and the decision of the US
Supreme Court in Shuttlesworth v Birmingham, 394 US 147 (1969).
101. As a subsidiary argument, Mr Harris referred to the
Advertisements Regulations which, he reasoned, could sufficiently regulate
displays of publicity materials. He also relied on various provisions in the
Summary Offences Ordinance, Cap 228 and the Public Order Ordinance,
Cap 245 and the common law offence of public nuisance which according
to him could adequately regulate the conduct of demonstrations without
recourse to the regulatory scheme in Part IX.
D4.2 Correct approach
102. The attack against the constitutionality of section 104A(1)(b)
and the Management Scheme comes in the forefront in the applicants case
on Ground 1. However, all the Decisions were either made directly under
or referable to section 104C(1), the enforcement-enabling provision. That
being the case, the first and foremost question concerns the constitutionality
of section 104C(1) and not section 104A(1)(b) or the Management Scheme.
One cannot simply assume that the constitutionality of section 104C(1) is
necessarily dependent on the constitutionality of section 104A(1)(b) or the
Management Scheme. Whether it is so depends on a proper construction
of section 104C(1). If section 104C(1) is free standing, in the sense that it
survives constitutionally scrutiny regardless of the validity of section
104A(1)(b) and the Management Scheme, then the decisions cannot be
impugned on the ground that section 104A(1)(b) and the Management
Scheme is unconstitutional. I derive support for this approach from the
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judgment of the Court of Appeal in Secretary for Justice v Ocean
Technology Ltd & Others [2009] 1 HKC 271.
103. There, Ocean Technology applied for a licence to operate a
non-commercial and non-profit making FM radio called Citizens Radio
Station to provide a community radio service. That application was
rejected by the Chief Executive in Council. But before the rejection,
Ocean Technology, its sole shareholder and one of its directors conspiring
with others established a transmitting system and allegedly thereby engaged
in broadcasting without a licence. They were subsequently charged with
14 offences contrary to sections 8 and 20 of the Telecommunications
Ordinance, Cap 106. They pleaded not guilty to the offences. They
contended that the provisions to which the charges were laid were
unconstitutional and contrary to BL27 and BOR16. The magistrate
determined the constitutional issue on the basis of whether the licensing
regime was prescribed by law as required by BL27, BL39 and BOR16(3).
He concluded that the provisions were unconstitutional as not being
prescribed by law because the discretion of the Chief Executive in Council
was unfettered and the decision was entrusted to a body not independent of
government. He then dismissed the charges. The Court of Appeal
allowed the Secretarys appeal and remitted the case back to the
magistrates court for resumption of trial.
104. Stock J A (as he then was) identified the real issue before the
court when he said :
61. A preliminary point is taken upon this appeal, namely, that
the magistrate had no jurisdiction to consider the constitutional
challenge to the licensing scheme prescribed by the
Telecommunications Ordinance. It was not a point argued in the
court below.
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62. The contention is that the challenge thus advanced was to
an issue collateral to that in the criminal proceedings and that the
Telecommunications Ordinance (the Ordinance), properly
construed, does not permit a defendant to a charge under ss 8 and
20 of the Ordinance to impugn the constitutionality of the
licensing procedure by way of defence. It is argued that the
correct and only avenue for such a challenge by an applicant who
is refused a licence is an application for judicial review.
63. We were treated to an extensive examination of authorities
which have addressed the issue whether (and, if so, to what extent)
a defendant might raise as a defence to a criminal charge the
validity of a decision taken pursuant to statutory authority or
whether he was consigned instead to running such an issue in
proceedings for judicial review.
64. Although the issue is raised before this Court as a
preliminary question, not canvassed in the court below, it arises in
any event, so it seems to me, from the final question posed by the
case stated. That final question had it been more appropriately
framed is the one with which the analysis in the court below
ought to have commenced. Had it been, and had the correct
conclusion been reached, none of the other questions with which
the court below or this Court have been burdened would have
presented themselves for determination.
65. The final question in the case stated asks whether charges
founded upon a failure to comply with [an unconstitutional
licensing] regime are also unconstitutional. But the charges
were not founded on a failure to comply with a licensing regime.
There was an application for a licence. That application was
lawful and regime-complicit. What was at issue and, aside
from the question whether the respondents had indeed established
means of telecommunication or used a transmitting system, it
could be the only relevant issue was whether the respondent
company had a broadcasting licence and, if not, whether the
offence-creating provision was itself unconstitutional as
impermissibly infringing a protected right. If the
offence-creating provision is free-standing, in the sense that it
survives constitutional scrutiny regardless of the validity of the
licensing regime and of the licensing decision, then the remaining
issues addressed by the magistrate and by the case stated were
and are irrelevant.
105. His Lordship then went on to note the concession that control
of airwaves by a ban on broadcasting without a licence was of itself a
permissible fetter upon the freedom to impart and the right to receive
information and opinion as an ingredient of the freedom of expression.
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(66) He then explained with authorities in support why the concession
was correctly made. (67-69)
106. Addressing the real issue as identified, Stock J A said :
87. There was in this case no bye-law or regulation the breach
of which was an ingredient of the offence with which the
respondents were charged. So no question of the vires of a
bye-law or regulation arose for determination.
88. There was in this case no notice or order issued the validity
of which order or notice might therefore be relevant as a defence
to a charge of breaching the order or notice.
89. There was in this case no act done under statutory authority
the validity of which act formed part of the prosecution case.
Neither the decision to refuse a license nor any act done or
omitted to be done in consequence of that decision constituted a
necessary ingredient of the offence charged.
90. The only relevant issues in the prosecutions that were
launched were these:
(1) Did the respondents commit the primary acts with
which they were charged, namely, establish means of
telecommunications or use a transmitting system or
conspire to do so, as the case may be;
(2) If that were proved, had a licence been granted by the
Chief Executive in Council or by the
Telecommunications Authority permitting them to
establish or to use such a system; and
(3) If no such licence had been granted, whether the
offence-creating provision was an impermissible
infringement of an established right.
91. The refusal to issue a license did not have the purported
effect of taking away a right in law that the applicant had
previously enjoyed. That is because the provisions of the Basic
Law and of the Bill of Rights Ordinance which guarantee freedom
to impart and to receive ideas cannot, if given a purposive
interpretation, and for reasons I have earlier provided, confer an
unfettered right on individuals to avail themselves of broadcasting
frequencies.
92. Evidence was adduced in this particular case that users of
radio frequency spectrum in Hong Kong include the police, fire
and ambulance services and the Civil Aviation Department.
Unrestricted access to that spectrum would run a cogent risk of
interfering with those vital services as well as of interfering with
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the rights of listeners to existing regional and international radio
stations. It is no doubt in recognition of the scarce resource that
is constituted by the radio spectrum, of the potential for chaos
presented by unrestricted access to that spectrum, and of the
infringement of the right of others to impart and receive
information that would result from unregulated access, that the
respondents accept that there can be no right to the airwaves, and
that the requirement of s 8 that broadcasting shall only take place
where licensed is not an infringement or an unjustifiable
infringement of any of the guaranteed rights with which this case
is concerned.
93. That being the case, it is impossible, in my judgment,
reasonably to construe the offence-creating sections in this case
(s 20 read with s 8) as permitting the establishment of a
telecommunication system or its use if such licensing system as is
in place is in some material respect not prescribed by law; or as
permitting broadcasting if the decision-making process by which
a particular licence has been refused is, or might be shown to
have been, unlawful on one or more public law grounds.
94. A proper construction of ss 8 and 20 of the Ordinance is one
that recognises that it must have been the legislatures intention
that the legality of a licensing decision or of an aspect of the
licensing scheme at any given time was not a necessary ingredient
of the offence. It would be as unrealistic and non-contextual to
suggest that, as it would to contend that in enacting a provision
that prohibited the driving of a motor vehicle without a licence,
the legislature intended that it would be a defence to a charge of
driving without a licence to show that, upon a driving test, the
driving examiner ought not to have refused the examinee his full
licence or to show that the criteria for granting driving licences
were insufficiently precise to meet the test of prescription by law.
95. It must follow that it was the legislatures intention that if
an applicant for a broadcasting licence wishes to attack the
statutory licensing system, or a licensing decision, he must do so
once he has made an application and has received a response
which might be impugned at law. In a prosecution for an
offence under ss 8 and 20 of the Ordinance, it is not open to a
defendant to raise by way of defence the legality of a licensing
decision or of the licensing scheme. Any other construction
would, in my opinion, be contrary to the clear policy of the
legislative scheme as a whole.
96. As Cheung J emphasises in the judgment which follows,
none of this is to suggest that it is not open to a defendant to
challenge, as a defence to a charge, the constitutionality of the
offence-creating provision directed against him. To the contrary,
it is always open to a defendant to do so as has been illustrated in
a number of instances in this jurisdiction. It is merely to say that
in this case the constitutionality of the offence did not depend on
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the validity of the licensing regime and it is in assuming that it did
that the magistrate went wrong.

98. It follows that the question of legal certainty which is the
theme of the case stated is a question that did not arise in the case
which the magistrate had to try. If, however, one allows oneself
to be drawn into the questions posed at all, the only question that
requires answering to dispose of this appeal is the last. That
question asks whether, given the finding that the licensing regime
was unconstitutional it followed that any charges founded upon a
failure to comply with that regime are also unconstitutional?.
The answer I would give to that question is No; because even
supposing that the premise was correct (that the regime is
unconstitutional), the offence-creating provision did not engage
the legality of the licensing regime.
107. In a similar analysis, A Cheung J (as the Chief J udge then was)
said :
119. The constitutional rights guaranteed under art 27 of the
Basic Law and art 16 of the Hong Kong Bill of Rights are not
absolute. Art 39(2) allows restrictions that are prescribed by
law. Further, art 16(3) provides that exercise of the rights
provided for in art 16(2) may be subject to restrictions that are
provided by law and are necessary for the respect of the right
of others, or for the protection of national security or of public
order (ordre public), or of public health or morals.
120. When a statute sets up a licensing regime for broadcasting
the regime constitutes a restriction on ones rights under art 27 of
the Basic Law and art 16(2) of the Hong Kong Bill of Rights.
The restriction, to be constitutionally valid, requires justification
in terms of art 39(2) of the Basic Law and art 16(3) of the Hong
Kong Bill of Rights.
121. Moreover, the refusal of a licence application according to
the particular circumstances of an individual case by itself also
constitutes a restriction on the exercise of the rights under
discussion. That restriction also requires justification in terms of
art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of
Rights, apart from the fact it may be challenged on other standard
public law grounds.
122. When the statute goes on to create a criminal offence
against the exercise of the rights in the absence of a licence
granted under the licensing regime set up in the statute, the
offence so created by itself also constitutes a restriction on those
rights. And that restriction likewise requires justification in
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terms of art 39(2) of the Basic Law and art 16(3) of the Hong
Kong Bill of Rights.
123. Therefore, in the prosecution of the offence, the accused
may always challenge the constitutionality of the offence itself as
being an unjustifiable restriction on his rights under art 27 of the
Basic Law and art 16(2) of the Hong Kong Bill of Rights. But it
does not follow that he can put in issue the constitutionality of the
restriction represented by the licensing regime or that by the
refusal of a licence (if one has been applied). Whether he may
do so depends entirely on whether, on the proper construction of
the offence, its essential elements include the constitutional
validity of the licensing regime and/or the refusal of a licence in
question.
124. In other words, if, on its proper construction, the offence
prohibits broadcasting etc in the absence of a constitutionality
valid licence granted under a constitutionally valid licensing
regime, the accused will be quite entitled to put the
constitutionality of the licensing regime or the refusal of a licence
in the particular case in issue. But not otherwise.
125. For the detailed reasons given by Stock JA in his judgment,
I have no doubt that in the present case, the constitutional validity
of the licensing regime does not constitute an essential ingredient
of the offence under s 20 as read with s 8(1) of the
Telecommunications Ordinance. In other words, whether the
licensing regime is a constitutionally justifiable restriction on the
rights under art 27 of the Basic Law and art 16(2) of the Hong
Kong Bill of Rights or whether it amounts to an unjustified
restriction is immaterial to the case that the prosecution has to
prove. So for that reason, the magistrate should not have gone
into it at all.
126. Likewise, I am satisfied, for the reasons explained by
Stock JA that the constitutionality of the refusal of a licence in a
particular case is not something that the prosecution needs to
establish. For that reason, it is also not a matter that a magistrate
need or should go into.
127. In other words, it is quite plain, as a matter of legislative
intent, that regardless of the constitutional validity of the licensing
regime and/or the refusal of a licence in question, the legislature
intends to prohibit broadcasting etc in the absence of a licence
from the Chief Executive in Council.
108. His Lordship then dealt with the constitutionality of the
offence-creating provision in the Telecommunications Ordinance :
128. However, that does not mean that no issue of
constitutionality arises or can arise. As said, the offence, by
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itself, constitutes a restriction, on the pain of criminal sanction, on
the rights guaranteed under art 27 of the Basic Law and art 16(2)
of the Hong Kong Bill of Rights. This restriction, like any other
purported restriction on a non-absolute constitutional right,
requires justification in order to be lawful and valid. The criteria
for justification, in the present case, are found in art 39(2) of the
Basic Law and art 16(3) of the Hong Kong Bill of Rights.
129. In other words, the constitutionality of s 20 of the
Ordinance does require consideration. But the consideration
required is quite different from the consideration that would have
been required to determine whether the licensing regime and/or
refusal of a licence in a given case are justifiable constitutionally
if their constitutional validity had been an essential element of the
offence.
His Lordship went on to apply the proportionality test and for the reasons
he gave at 130-135 concluded that the test was satisfied and the offence
creating provision was constitutionally justified.
109. I digress to note that how the Court of Final Appeal disposed
of the appeal in Leung Kwok Hung, supra lends support to the Court of
Appeals approach in Ocean Technology.
110. There, the 1
st
defendant was convicted of holding an
unauthorized assembly and the 2
nd
to 3
rd
defendants of assisting in the
holding of that unauthorized assembly, contrary to section 17A(3)(b)(i) of
the Public Order Ordinance, Cap 245. The offences arose out from a
peaceful procession of between 40 to 96 people. The 1
st
defendant refused
to go through the statutory notification procedure, despite a warning from
the police. Section 13A of the Public Order Ordinance provided that
before such procession could take place, the Commissioner of Police had to
be notified in writing and given particulars such as to its purpose, time,
route and estimate numbers. The Commissioner then had a discretion to
object to the procession under section 14(1) if he reasonably considered this
was necessary in the interests of national security or public safety, public
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order (ordre public) or the protection of the rights and freedom of others.
He was obliged under section 14(5) not to object if he reasonably believed
that the relevant statutory legitimate purposes could be met by imposing
conditions, which he was empowered to do under section 15(2).
111. The issue on appeal to the Court of Final Appeal was whether
the statutory scheme for regulating public procession was contrary to the
right to freedom of assembly in Article 27 of the Basic Law, Article 21 of
the International Covenant on Civil and Political Rights; and the
corresponding Article 17 of the Bill of Rights. The majority of the Court
of Final Appeal held that the Commissioners discretion to restrict the right
of peaceful assembly for the statutory purpose of public order (ordre
public) fell foul of the prescribed by law requirement as it plainly did
not given an indication of the scope of that discretion. The appropriate
remedy was the severance of public order (in the law and order sense),
which was sufficiently certain, from public order (ordre public) in the
relevant provisions of the Public Order Ordinance. After severance, the
Commissioners discretion in relation to public order (in the law and order
sense) satisfied the prescribed by law requirement and the necessity
requirement and was constitutional.
112. In disposing of the appeal, the majority of the Court of Final
Appeal held :
97. The offences for which the appellants were convicted did
not relate to the statutory provisions conferring on the
Commissioner the discretion to object or to impose conditions on
a public procession where he considers it reasonably necessary in
the interests of public order (ordre public). The offences arose
out of the holding of a public procession without complying with
the statutory notification requirement. The holding that public
order (ordre public) in the relevant statutory provisions is
unconstitutional and that public order should be severed from it
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does not affect the convictions. Accordingly, the appeal must be
dismissed and the convictions upheld.
113. Plainly, in upholding the convictions, the majority of the Court
of Final Appeal did not consider that the validity of the relevant
offence-creating provision in the Public Order Ordinance was dependent on
the constitutionality of another component in the regulatory scheme for
public procession. They were separate and distinct.
114. Applying the approach as articulated by the Court of Appeal in
Ocean Technology, three questions arise for determination in the present
context :
(1) Whether on a proper construction of section 104C(1), the
enforcement-enabling provision, the constitutionality of
section 104A(1)(b), the permission-seeking provision, and the
Management Scheme, is a necessary ingredient that triggers
the formers operation resulting in the Decisions. (Question 1)
(2) If the answer to Question 1 is yes, whether the restrictions
imposed by section 104A(1)(b) and the Management Scheme
are constitutionally justified.
(3) Even if the answer to Question 1 is no or the answer to
Question 2 (if arisen) is yes, whether the restriction imposed
by section 104C(1), the enforcement-enabling provision, is on
its own constitutionally justified. (Question 3)
115. I will consider these questions in turn.
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D4.3 Question 1
116. Section 104C(1) simply provides that when a bill or poster is
displayed in contravention of section 104A(1)(b), the Authority, that is, the
Director for present purposes may remove them and recover the cost of
removal from the displayer. The contravention involves 2 ingredients
only :
(1) Failure to obtain the written permission from the Director; and
(2) Display of the materials without the Directors permission.
Once a display is made without the Directors permission, section 104C(1)
bites. No further ingredient is necessary.
117. As I have explained in 61 above, section 104C(1) is essential
to the efficacy of the regulatory scheme in Part IX. The Directors power
to remove the publicity materials displayed without his permission is a
necessary measure to rectify the contravention of section 104A(1)(b) timely
and to deter similar contraventions from happening in the future. On a
proper construction, to give section 104C(1) its full effect and vigour it
must have been the legislative intention that the constitutionality or legality
of section 104A(1)(b), any scheme devised for the purpose of implementing
section 104A(1)(b) (the Management Scheme in the present case), or a
particular decision made under either section 104A(1)(b) or the scheme, is
not a necessary ingredient which triggers the operation of section 104C(1).
The legislature must have intended that any constitutional challenge against
section 104A(1)(b) or the scheme can only be brought when a person has
made an application to the Direction or his delegate (LD in the present
case), as the case may be, for permission and the Director or his delegate
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has made a decision which he considers to be capable of being impugned at
law.
15

118. The answer to Question 1 is no.
D4.4 Question 2
119. In light of my conclusion on Question 1, Question 2 does not
arise.
120. For completeness, I would very briefly deal with Mr Harriss
attacks against the legality of section 104A(1)(b) and the Management
Scheme.
121. I first deal with section 104A(1)(b). As noted, the main plank
of Mr Harriss contentions is that by applying the proportionality test,
section 104A(1)(b) should be read down so that it does not prohibit, or
require approval to be obtained for, reasonable display of banners or
placards at the FLG demonstrations. With respect, I disagree.
122. As I have set out in 82-91 above, the regulatory scheme in
Part IX of which section 104A(1)(b) is a key component serves various
legitimate aims. Those powerful societal justifications do not diminish
simply because the displays of the publicity materials are not permanent or
for the purpose of holding a demonstration.

15
When an application is made to the Director or his delegate for permission, the
applicant is of course entitled to a fair consideration. His application cannot be
refused on any ground that would fall foul of the constitutional protections afforded
by the Basic Law or the Bill of Rights : see Ocean Technology, supra, per Stock J A
at 69.
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123. Nor can the applicability of section 104A(1)(b) be dependent
on the perceived reasonableness of the manner in which the demonstration
is held. It is quite inconceivable that a demonstrator would ever regard the
manner in which he is going to hold his demonstration to be unreasonable.
So even if in fact the manner of the demonstration is, viewed objectively,
unreasonable, the reality is that the demonstrators would rarely seek the
Directors prior permission to display the publicity materials under section
104A(1)(b), thus rendering it ineffectual if not meaningless.
124. Mr Harriss reliance on Yeung May Wan, Haw and
Shuttlesworth is all misplaced.
125. In Yeung May Wan, a group of FLG demonstrators held a
peaceful demonstration outside a building containing the Liaison Office of
the Central Peoples Government to protest about alleged mistreatment at
the hands of Mainland authorities and other grievances. The
demonstration included displaying a banner. Soon after the demonstration,
police arrived and erected barriers blocking one route into the building from
the pavement. Police gave five warnings to the effect that if they did not
disperse, they would be arrested. Eventually, the demonstrators were
arrested. They resisted attempts to be removed and there was further
resistance at the police station when nine members of the group strongly
resisted leaving the vehicle. There was more violence in the briefing room
with various police officers injured. The defendants were convicted by a
magistrate of obstruction of a public place by setting out the banner,
contrary to section 4A of the Summary Offences Ordinance, Cap 228 (the
first charge), and doing an act whereby obstruction might accrue to a public
place by assembling together and displaying the banner, contrary to
section 4(28) of the Summary Offences Ordinance and other charges of
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obstructing the police and assaulting a police officer. On appeal, the
Court of Appeal allowed the appeal on the first and second charges but
dismissed the appeal on other charges.
126. Ma CJ HC (as the Chief J ustice then was), with whom Woo VP
agreed, approached the matter by asking two questions, namely, whether
the accused had done any act whereby actual or potential injury of
obstruction might accrue to a public place; and if so, whether the accused
had any lawful authority or excuse. On the first question, there was
evidence to justify that obstruction, actual or potential, was caused by the
defendants. On the second question, prima facie there was a lawful
excuse because there was little doubt that the defendants were exercising
and believed they were exercising their constitutional rights of expression,
assembly and demonstration. Independent of the police warnings, they
were not aware that they had somehow overstepped the mark so that
permitted restrictions on those constitutional rights became relevant. It
was incumbent on the magistrate to consider whether the police had
sufficient justification to curtail the demonstration. This involved
conducting a balancing exercise between the constitutional rights on the
one hand and those of the rest of the community on the other but the
magistrate had failed to consider the whole of the evidence.
127. Stock J A agreed with the results of the appeal but on the
approach, he said that assuming that the presence of the group caused an
obstruction, the defence of lawful excuse had been made out because there
was reasonable use of the space outside the Liaison Offices. First, the
question of reasonableness could only be answered if due recognition was
accorded to the fact that the activity in which the defendants were accorded
to the fact that the activity in which the defendants engaged was inherently
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lawful, and was an exercise of a fundamental right to which the Basic Law
gave specific protection. Second, a point upon which Mr Harris placed
reliance, reasonable use of a highway contemplated more than passing and
re-passing. The use of a highway for the purpose of a peaceful assembly
was prima facie lawful. So the true question was whether this lawful use
of the highway reasonably impeded the primary right of the public,
including those wishing to gain access to the Liaison Offices, to pass and
re-pass and to gain access. The evidence showed that there was ample
room for pedestrians as well as office workers safely to pass and to gain
access to the building. The magistrate had accorded too little regard to the
right of assembly and protest and had applied too restrictive a test to the
issue of reasonableness as it arose when two fundamental rights competed
for space on a highway.
128. Mr Harris submitted that it was never suggested by the
Government that action against the FLG demonstrators in Yeung May Wan
might be justified because their banner was displayed on Government land
without permission in contravention of section 104A(1)(b). Had it been so
suggested, Mr Harris submitted that the Court of Appeal would have held
that section 104A had to be read down in the way as he has suggested
above, which means that no prior permission from the Director was
necessary for displaying the banner. I am unable to accept this submission.
129. The issues before the Court of Appeal concerned the
obstruction offences under the Summary Offences Ordinance. They had
nothing to do with the question whether permission was required for
displaying the banner under section 104A(1)(b) of the Ordinance. That
question was not even before the Court. It is no more than mere
speculation as to what the Court might decide if that question were raised
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before it. More importantly, Mr Harriss speculation does not sit well
with the enforcement policy behind section 104C(1) of the Ordinance.
According to FEHDs Operational Guidelines on Enforcement Action
against Unauthorised Non-commercial Publicity Materials under the LD
Revised Management Scheme dated March 2013 (the Operational
Guidelines) :
38. For display of unauthorised [non-commercial publicity
materials] during demonstration/petition/public assembly of
one-off nature instead of on a regular and frequent basis (eg
1
st
July Rally), any removal of [non-commercial publicity
materials] of such kind will only inflame the situation. To avoid
confrontation, [the enforcing officers] should go to the scene after
the demonstration/petition/public assembly and take the steps
prescribed in paragraphs 18 to 21 above to remove any
[non-commercial publicity materials] left at the scenes.
The enforcement policy might well explain why no enforcement action was
taken to remove the banner displayed in aid of the demonstration in Yeung
May Wan, which was a one-off incident.
130. In Haw, the defendant staged a protest from the pavement in
Parliament Square even since J une 2001 for some 15 months by displaying
there a considerable number of placards supporting his protest. He had
been doing so on a 24 hour a day basis, every day, since then. The
Westminster City Council applied for a final injunction that the defendant
ceased the obstruction in Parliament Square and elsewhere in Westminster
and that he removed the placards and other paraphernalia. The application
was based on the Highways Act under which the plaintiff had to establish
that the defendant had without lawful authority or excuse, wilfully
obstructed the free passage along a highway. Gray J found that the fact of
physical obstruction was established and that the obstruction was wilful.
But the plaintiff must also establish that the obstruction was unreasonable.
In assessing the question of reasonableness, Gray J recognized and gave
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weight to the fact that the defendant was exercising his European
Convention right to freedom of expression. He said :
24. Mr Powell (for the plaintiff) rightly points out that the right
to freedom of expression is not unqualified by Article 10.2.
Interference with the right is permissible where it is necessary
that is, where there is a pressing social need to do so in order to
protect the rights of others. Mr Powell submits that there is such
a need to protect the right of pedestrians to pass and re-pass along
the pavement in Parliament Square. He also mentioned the right
of other protestors to protest from the pavement. I certainly do
not accept that Article 10 is a trump card entitling any political
protestor to circumvent regulations relating to planning and the
use of highways and the like, but in my judgment the existence of
the right to freedom of expression conferred by Article 10 is a
significant consideration when assessing the reasonableness of
any obstruction to which the protest gives rise. I am not
satisfied in the circumstances of this case that there is any
pressing social need to interfere with the display of placards so as
to protect the right of others to pass and re-pass. Objection may
be taken to the defendants activities on the ground that they
constitute an eyesore, but that is a different matter. Moreover, as
already mentioned, there is a requirement in section 12.4 of the
Human Rights Act that on an application of the present kind,
I should pay particular attention to the right of freedom of
expression.
25. Looking at the issue of reasonableness in the round, and
taking account of the duration, place, purpose and effect of the
obstruction, as well as the fact that the defendant is exercising his
Convention right, I have come to the conclusion that the
obstruction for which the defendant is responsible is not
unreasonable. Accordingly, I decline to grant the injunction
sought.
131. Haw was a decision on its particular facts. And on its facts,
the obstruction by displaying the placards was not unreasonable and
therefore the application for injunction was refused. I do not think it
supports Mr Harriss general proposition that in the context of Part IX of
the Ordinance prior permission from the Director for displaying publicity
materials on Government land for holding an assembly or demonstration in
a reasonable manner is not required.
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132. In Shuttlesworth, the petitioner, a Negro minister who helped
lead 52 Negroes in an orderly civil rights march in Birmingham, Ala,
in 1963, was arrested and convicted for violating section 1159 of the citys
General Code, an ordinance which proscribes participating in any parade or
procession on city streets or public ways without first obtaining a permit
from the City Commission. Section 1159 permitted the Commission to
refuse a parade permit if its members believe the public welfare, peace,
safety, health, decency, good order, morals or convenience require that it be
refused. The petitioner had previously been given to understand by a
member of the Commission that under no circumstances would the
petitioner and his group be allowed to demonstrate in Birmingham. The
Alabama Court of Appeals reversed the conviction on the grounds, inter
alia, that section 1159, as written, unconstitutionally imposed an invidious
prior restraint without ascertainable standards for the granting of permits,
and that the ordinance had been discriminatorily enforced. However, the
Alabama Supreme Court in 1967 narrowly construed section 1159 as an
objective, even-handed traffic regulation which did not allow the
Commission unlimited discretion in granting or withholding permits, and
upheld petitioners conviction. On appeal, the US Supreme Court held,
other thing, that a law subjecting the right of free expression in publicly
owned places to the prior restraint of a license, without narrow, objective,
and definite standards is unconstitutional, and a person faced with such a
law may ignore it and exercise his First Amendment rights. Picketing and
parading might constitute methods of expression entitled to First
Amendment protection, and use of the streets for that purpose, though
subject to regulation, might not be wholly denied. Since the terms of
section 1159 gave the Commission unbridled authority to issue or withhold
parade permits without reference to legitimate regulation of public streets
and sidewalks, the ordinance would be, absent a limiting construction,
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unconstitutional on its face. Since in this case section 1159 was
administered in accordance with its impermissibly broad language, so as to
deny or unwarrantedly abridge the First Amendment rights of the
petitioner and his organization, the petitioner's conviction might not stand.
133. I do not think any assistance can be derived from
Shuttlesworth. That case concerned the constitutional setting imposed by
the US Constitution. Here, we apply our own constitutional framework
and provisions as found in the Basic Law and Bill of Rights. Further, the
question before the US Supreme Court concerned the right to hold a parade
or possession. In the present case, we are dealing with displaying
publicity materials on Government land (albeit for the purpose of holding
static demonstrations), which is subject to the regulatory regime in Part IX
of the Ordinance.
134. Mr Harris reliance on the Advertisements Regulations is also
misplaced because they are simply not applicable. So is his reliance on
other statutory provisions and the common law offence of public nuisance
in regulating the manner of demonstration. If one chooses to use publicity
materials displayed at a particular spot on Government land for the purpose
of holding a demonstration there, then he must be subject to the regulatory
regime in Part IX of the Ordinance, provided that the regime survives a
constitutional scrutiny. Whether he complies with or contravenes any
other statutory provisions or commits the common law offence of public
nuisance is neither here nor there.
135. I next turn to Mr Harriss attack against the Management
Scheme, which can be disposed of shortly. The constitutionality of the
Management Scheme is irrelevant to the 13 locations that the applicants
attended for the simple reason that they did not come within the Scheme.
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As to the other 13 locations, it is not clear if they fell within the
Management Scheme either. I think before the applicants can be heard on
their challenge against the Management Scheme, they ought to have
satisfied me by way of evidence that all the 26 Locations did fall within the
Management Scheme. But they have not done so. Their submissions on
the constitutionality of the Management Scheme are therefore academic and
should not be entertained. I just want to mention two particular points Mr
Harris made in his attack against the Management Scheme.
136. First, Mr Harris submitted that imposing the requirements on
the contents of the publicity materials under Part 7 of the Management
Scheme is tantamount to political vetting, which is deeply objectionable.
But there is not an iota of evidence in support. In fact, what happens on
the ground of which I take judicial notice flatly contradicts Mr Harriss
submission. The banners and placards displayed by LegCo members
coming from different political affiliations, approved under the
Management Scheme, very often carry different and sometimes conflicting
political slogans or messages. How can there be any political vetting?
I firmly reject this wholly unmeritorious submission.
137. Second, the applicants complained that it was the officers of
the LD who had asked them to make an application under the Management
Scheme. But the Management Scheme which is the only publicized
approval scheme is obviously impracticable and unsuitable for applications
relating to FLG demonstrations such as those of the applicants. This is a
most unfair criticism. The evidence shows that the LD officers were
labored under the misunderstanding that the FLG representatives whom
they met were representing the FLG Association, when in fact they only
represented themselves and some other fellow FLG practitioners. But the
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FLG representatives did not make it clear to the officers that they did not
represent the FLG Association. In the circumstances, I do not think the
officers could be blamed. In any event, the Director has reserved to
himself the discretion under section 104A(1)(b). The FLG representatives
could have made the application to him directly if they wished to do so. It
was wrong for the applicants to assume, as they did, that no general
discretion existed in law under section 104A(1)(b) upon which the Director
could act on a case-by-case basis.
138. Finally, to round up their attack on the constitutionality of
section 104A(1)(b) and the Management Scheme, the applicants
complained that even if they were to apply for permission, whether under
section 104A(1)(b) or the Management Scheme, their application might be
refused. This is no more than an unfounded speculation which must be
rejected. It can hardly amount to an excuse for not making the application
to the Director under section 104A(1)(b) or to LD under the Management
Scheme (if it ever applied).
139. In my view, section 104A(1)(b) of the Ordinance and the
Management Scheme clearly meet the proportionality test. Seeking a
prior permission before displaying publicity materials is rationally
connected with all the legitimate aims which I have identified above and it
is no more than necessary to accomplish those aims. I also accept the
submission of Mr Mok, SC for the putative respondents and the interested
party, that the requirement for permission does not interfere with the
applicants and their fellow FLG practitioners from using other means to
communicate the same messages contained in the publicity materials
intended to be displayed : see HKSAR v Ng Kung Siu & others (1999) 2
HKCFAR 442, per Li CJ at p 456F-G.
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140. Mr Mok further relied on Butler v Derby City Council [2006] 1
WLR 1346, where Sullivan J held at 36-40 that a requirement for
obtaining consent from a local authority for the displaying of
advertisements bearing political messages does not amount to an
unwarranted interference with the right to freedom of expression protected
by Article 10(1) of the European Convention on Human Rights.
16
I agree
with Mr Mok that the same can be said about section 104A(1)(b) and the
Management Scheme.
17

141. For the above reasons, even if Question 2 arose, my answer
would be yes.
D4.5 Question 3
142. I now consider if section 104C(1) of the Ordinance on its own
survives the constitutional scrutiny.
143. The prescribed by law requirement is clearly satisfied
because the restriction is actually provided for by the enforcement
provision itself.
144. On the necessity requirement, I apply the proportionality test.
I have already set out the legitimate aims that the regulatory scheme, of
which section 104C(1) is an essential component, serves. Plainly, there is
a rational connection between section 104C(1) and those legitimate aims.
Further, prohibition of displaying publicity materials on Government land

16
Which gives similar protections as those under Article 27 of the Basic Law and
Article 16 of the Bill of Rights.
17
In the course of his oral submissions, Mr Mok made reference to Article 7 of the
Basic Law. I do not think the deployment of Article 7 adds anything substantial to
the discussion or would in any way affect the outcome. So I will just leave the
submission as it is without expressing any view on it.
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without the Directors permission, backed by enforcement action under
section 104C(1), is no more than a necessary step to regulate the use of
public places for attaining such aims. In this regard, I would reiterate that
without section 104C(1), the utility of the regulatory scheme as a whole
will greatly diminish.
145. To complete the discussion, I need to dispose of the applicants
complaints about the Operational Guidelines. The complaints were made
as part of their attack against the constitutionality of section 104A(1)(b).
But I think they have more to do with enforcement. I therefore deal with
them here. The complaints are two-fold.
146. Mr Harris first referred to 36 of the Operational Guidelines,
18

under which walking bills or posters, that is, those held in the hands or
affixed on a board or any kind of materials hung on a person) do not fall
within the scope of enforcement operation. Mr Harris contended that a
practice whereby the banner or placard would be confiscated as soon as it
touches the ground constitutes a grossly disproportionate restriction both
on freedom of speech and assembly. However, Mr Harriss contention is
not borne out by a full reading of 36. For it goes on to provide that some
permanence of the display is needed before enforcement action is to be
taken. This complaint fails.
147. Mr Harris then referred to 38 of the Operational Guidelines
which, as seen, provides that enforcement should not be taken against the
display of publicity materials in one-off demonstrations, for fear of
inflaming the situation, but should be taken against demonstrations of a
regular or recurring nature. He argued that this limitation is not justified

18
See 153 below for the full text of 36 of the Operational Guidelines.
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as permissible restriction on the protected rights. It seems that Mr Harris
was complaining about the disparity in treatment for one-off
demonstrations and demonstrations of a regular or recurring nature. With
respect, I can see nothing wrong in the difference, which is well justified by
the reasons given in 38. In any event, the fact that as a matter of policy
no enforcement action is to be taken in one-off demonstrations does not
necessarily mean that no enforcement action can be taken in regular or
recurring demonstrations or that such enforcement action is not justified.
This complaint also fails.
148. The answer to Question 3 is yes.
D5. Conclusion
149. Despite the wholesale attacks, there is no merit in Ground 1.
E. GROUND 2
150. Mr Harris submitted that the chronology of the events leading
up to the removal of the applicants banners makes it clear that the impetus
for action by the authorities was the complaints which began to occur from
the public in 2012, after the anti-FLG organization, HKYC began placing
numerous anti-Falun Gong banners in close proximity to the FLG banners,
and effectively demonstrating against FLG at those locations. The FLG
banners which had previously been displayed since around 1999 appear to
have generated very few public complaints. However from J une 2012
when HKYC become active, complaints increased dramatically with more
than 600 in November 2012, and 110 in April 2013. In enforcing section
104C(1), the Director appeared to treat FLG demonstrations and HKY
demonstrations as if there was no meaningful difference between them.
This is a serious and unjust error. The purpose of the HKYC banners
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appears to have been to provoke and to create confrontation in relation to
Falun Gong practitioners, such as the Applicant, who have been
demonstrating peacefully and uncontroversially for many years, should lose
the ability to continue their regular peaceful display of banners because of
the provocative behaviour of a group opposed to their activities.
Mr Harris argued that the restrictions were not proportionate, as they are
based on motivation which did not constitute a legitimate aim, which was to
deal with the problem generated by HKYCs confrontational approach by
also taking the same action against HKYC and against the previously
inoffensive Falun Gong banners, thereby treating the aggressor and the
victim without any distinction. He relied on Beatty v Gillbanks [1882] 9
QB 308 in support.
151. Viewed objectively in the round, the evidence before me does
not support Mr Harriss complaint that the enforcement actions or the
Decisions were based on the alleged aggressive actions on HKYCs part.
FEHD took the enforcement actions as they did in response to the
complaints against the recent proliferation of unauthorized displays of
publicity materials on Government land by FLG and HKYC. Further,
when all the publicity materials at the 26 Locations were displayed without
the requisite permission in contravention of section 104A(1)(b), it is
entirely legitimate for the Director to take enforcement actions under
section 104C(1) against such unlawful displays, regardless of HKYCs
position.
152. There is no merit in Ground 2.
F. GROUND 3
153. According to the Operational Guidelines :
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35. If any person being seen of displaying or affixing the bill or
poster on a pole and the pole is rested on the ground surface all
along, it is actionable under section s104A(1)(b), 104A(2) and
104C of Cap 132.
36. Walking bill or poster does not fall within the ambit of
section 104A of Cap 132. One of the elements of the offence is
the display or affixing of bills and posters on government land.
Furthermore, some permanence of the display is needed. Hence,
for [non-commercial publicity materials] being held by hand of
persons (or affixed on a board or any kind of materials which are
hung on the body of a person), no enforcement action should be
taken.
154. Mr Harris submitted that 35 and 36 of the Operation
Guidelines discriminate in favour of the strong against the weak (the
disabled and women being the weaker), as the strong will be able to hold a
banner up without touching the ground for longer. This discrimination has
no rational justification. It therefore constitutes impermissible indirect
discrimination in breach of the Disability Discrimination Ordinance, Sex
Discrimination Ordinance and Article 22 of the Bill of Rights. With
respect, this argument is wholly misconceived.
155. 35 and 36 of the Operational Guidelines do not draw any
distinction between the physical condition or gender of the offender. They
apply across the board, irrespective of the offenders physical condition or
sex. Further, there is no evidence to show that the enforcement actions
under section 104C(1) had been taken against bills and posters displayed or
affixed on Government land by the disabled or women but not against bills
and posters similarly displayed or affixed by others. There is no
discrimination against the disabled or women as alleged.
156. There is no merit in Ground 3.
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G. GROUND 4
157. To recap, the applicants case of legitimate expectation is
based on the allegation that it had been the Governments established policy
of twelve years duration of permitting Mr Hungs demonstration at the SSP
site that he would be permitted to continue with that demonstration in the
same form, absent a relevant change of circumstances. Alternatively,
there was at the lowest a duty on the Director to undertake a meaningful
and open-minded consultation with the FLG Association, which represents
the interests of FLG practitioners such as the applicants, before making
such a drastic change to the previous policy.
158. Central to the applicants case on legitimate expectation is a
letter issued by Chief Health Inspector Kung Ho Yuen on behalf of the
Director dated 20 December 2012 (the Letter). It was written in
response to a complaint by a Mr Chow of a community service centre,
which stated :
our department is responsible for matters related to
environmental hygiene, and we would not take action on activities
related to expression of opinion including banners displayed in
these activities. Nevertheless, we have reminded
person-in-charge present on spot the Management Scheme and
the related legislation. Our officers will continue to monitor
the above situation and will take appropriate actions in
accordance with the Management Scheme.
159. It is trite law that, to qualify as a representation capable of
giving rise to legitimate expectation, the statement must be clear and
unambiguous and devoid of relevant qualification : Ng Siu Tung v
The Director of Immigration (2002) 5 HKCFAR 1, at 103-104. Here, it
was expressly stated in the Letter that FEHD would continue to monitor the
situation and would take appropriate actions in accordance with the
Management Scheme. Indeed, FEHD did subsequently issue warnings to
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the FLG Association, and reminded the persons-in-charge on spot of the
relevant legislation and the Management Scheme. As rightly submitted by
Mr Mok, the Letter and FEHDs conduct is far from creating any
representation that the Director would not enforce section 104A(1) of the
Ordinance against demonstrators banners or placards displayed on
Government land without his permission. No legitimate expectation as
contended by Mr Harris, whether on his primary or alternative case, could
possibly arise.
160. There is no merit in Ground 4.
H. DISPOSITIONS
161. For the above reasons, none of the grounds raised by the
applicants in their judicial reviews is reasonably arguable. I refuse to
grant leave and dismiss their applications.
162. Counsel agreed at the hearing that costs should follow the
event. I therefore make an order nisi that the applicants do pay the
putative respondents and interested party costs, to be taxed on a party and
party basis if not agreed. The applicants own costs are to be taxed in
accordance with the legal aid regulations.




(J eremy Poon)
J udge of the Court of First Instance
High Court

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Mr Paul Harris SC and Ms Linda Wong, instructed by Ho Tse Wai,
Philip Li & Partners, assigned by the Director of Legal Aid, for the
applicant in HCAL 73/2013 and HCAL 110/2013

Mr J ohnny Mok SC and Mr J ohnny KC Ma, instructed by the Department
of J ustice, for the 1
st
and 2
nd
putative respondents in HCAL 73/2013
and HCAL 110/2013 and the interested party in HCAL 73/2013
Annex

Location
1.*

Railing at the junction of Wong Tai
Sin Road and the path leading the
Wong Tai Sin Temple
2.*

Railing and public area in the vicinity
of Haiphong Road and Nathan Road,
Tsim Sha Tsui
3.*

Railing and public area outside Ocean
Centre, Canton Road, Tsim Sha Tsui
4.*

Railing and public area near Granville
Square
5.*

Railing and public area outside the
Star Ferry Pier
6.

Railing and public area near the
junction of Nathan Road and J ordan
Road
7.

Railing and public area in the vicinity
of Man Lok Street and Man Yue
Street, Hung Hom
8.

Railing and public area at the junction
of San Ma Tau Street and Mei King
Street
9.

Railing near Sung On Street (near
Wing Fai Mansion) and Sung On
Street Sitting-out Area
10.*

Railing and public area outside
Langham Place, Argyle Street
11.*

Railing and public area outside Wai
Fung Plaza, Argyle Street
12.*

Stone pillar outside MTR Mong Kok
East Station
13.*

Pedestrian precinct in Sai Yeung Choi
Street South near Shan Tung Street
14.*
D2

Exterior wall of MTR Sham Shui Po
Station Exit D2 and public area
15.*

Lok Ma Chau Public Transport
Interchange
16.

Mei Tung Street, Tung Chung
17.

Tat Tung Road, Tung Chung
18.

Tung Chung Bus Terminus


Interchange
19.

External area around Cheung Fung
Industrial Building, Pak Tin Par
Street, Tsuen Wan
20.

Pavement outside Sogo Department
Store
21.

OBrien Road footbridge
22.

Stubbs Road Lookout
23.

(a)
(b)
(c)
The areas around the Central
Government Offices and the Chief
Executive Office
(a) Outside the Chief Executive Office
(b) Railing at the junction of Harcourt
Road and Tim Wa Avenue
(c) Entrance to the West Wing of the
Central Government Offices
24.*

On the railing on the roadside outside
the Liaison Office of the Central
Peoples Government
25.*

On the railing on the roadside outside
Western Police Station
26.

On the railing on the roadside of
Battery Path in Central near the West
Wing of the Central Government
Offices