High Court Gives Landmark Judgment in Emergency Regulations and Anti-Mask Law Case

The Court of First Instance on 18 November 2019 handed down a landmark judgment concerning the constitutionality of the Emergency Regulations Ordinance (Cap. 241) (“ERO”) and the Prohibition on Face Covering Regulation (Cap. 241K) (“PFCR”) made under the ERO.

The judgment develops important legal principles on the separation of powers, addressing the extent to which the legislature may, under the Basic Law, confer power to the executive to make subsidiary legislation. The Court found that the open-ended power under the ERO to make sweeping regulations in an occasion of public danger, including those that amend or repeal primary legislation, impermissibly vested the executive with power which could be exercised only by the legislature.

The Court also addressed the issue of whether a law banning the wearing of masks and facial coverings, including paint, at any public gathering – whether peaceful or not – was a proportionate restriction on rights, including in particular the right to freedom of assembly, and the right to express one’s views in public without fear of reprisal. It held that near-blanket restrictions imposed by several provisions of the PFCR were disproportionate, and therefore separately unconstitutional on that additional ground.

Background

The judgment arises out of two applications for judicial review (HCAL 2945/2019 and HCAL 2949/2019) heard together before, in a rare arrangement, a “Divisional Court” constituted of two judges in the Court of First Instance, Mr. Justice Godfrey Lam and Mr. Justice Anderson Chow. 

The ERO was enacted in 1922 and provides relevantly that, “On any occasion which the Chief Executive in Council (“CEIC”) may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest.” (Section 2(1) of the ERO). 

On 4 October 2019, the CEIC made the PFCR pursuant to the ERO; the Government made clear that the power under the ERO was being invoked on the “public danger” ground only, not the “emergency” ground. 

Section 3 of the PFCR prohibits the use of facial covering likely to prevent identification in four specified situations, namely (a) an unlawful assembly, (b) an unauthorised assembly, (c) a public meeting that is not an unlawful or unauthorised assembly, and (d) a public procession that is not an unlawful or unauthorised assembly. 

Section 5 of the PFCR concerns police powers in relation to facial covering. It applies in relation to a person in a public place who is using a facial covering that a police officer reasonably believes is likely to prevent identification, and provides inter alia that the police officer may (a) stop the person and require the person to remove the facial covering to enable the officer to verify the identity of the person; and (b) if the person fails to comply with a requirement under paragraph (a) – remove the facial covering. 

Judgment – Constitutionality of the ERO

The Court’s conclusions are summarised in the Judgment at §193.

In relation to the ERO, the Court held that, insofar as it empowers the CEIC to make regulations on any occasion of public danger, is incompatible with the Basic Law, having regard in particular to Articles 2, 8, 17(2), 18, 48, 56, 62(5), 66 and 73(1) thereof; the Court left open the question of the constitutionality of the ERO insofar as it relates to any occasion of emergency (§193(1)).

In holding so, the Court examined the constitutional scheme in the Basic Law and the nature of the ERO. The Court’s reasoning is succinctly summarized in its conclusion on this ground of review as follows:

“It is the power and function of the LegCo as the designated legislature of the Hong Kong SAR to legislate.  Other bodies cannot consistently with the constitutional framework be given general legislative power but only the power to make subordinate legislation.  It may be a matter of degree whether a power granted is in truth general legislative authority rather than the acceptable power to make subordinate legislation.  But insofar as the public danger ground is concerned, the ERO is so wide in its scope, the conferment of powers so complete, its conditions for invocation so uncertain and subjective, the regulations made thereunder invested with such primacy, and the control by the LegCo so precarious, that we believe it is not compatible with the constitutional order laid down by the Basic Law…” (§97)

Judgment – Constitutionality of the PFCR

In relation to the PFCR, the Court noted that there is no dispute that a number of rights are engaged by the restrictions imposed by section 3 of the PFCR, including the freedom of assembly, procession and demonstration, the freedom of speech or expression, and the right to privacy (§127). It is also clear that section 5 of the PFCR engages the freedom of the person or right to liberty (§172), amongst other rights.

According to the respondents, the PFCR pursued twofold aims, namely: (i) deterrence and elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the law, and (ii) facilitation of law enforcement, investigation and prosecution (§130).

The Court held that sections 3(1)(a), (b), (c) and (d) are rationally connected to legitimate societal aims, but the restrictions imposed by section 3(1)(b), (c) and (d) on fundamental rights go further than is reasonably necessary for the furtherance of those objects (§193(5)). In holding so, the Court had regard inter alia to “the reach of the impugned restrictions to perfectly lawful and peaceful public gatherings, the width of the restrictions affecting public gatherings for whatever causes, the lack of clarity as regards the application of the restrictions to persons present at the public gathering other than as participants, the breadth of the prohibition against the use of facial covering of any type and worn for whatever reasons, the absence of any mechanism for a case-by-case evaluation or assessment of the risk of violence or crimes such as would justify the application of the restrictions, the lack of robust evidence on the effectiveness of the measure, and lastly the importance that the law attaches to the freedom of expression, freedom of assembly, procession and demonstration, and the right to privacy” (§166).

The Court also held that section 5 of the PFCR is rationally connected to legitimate societal aims, but the restriction it imposes on fundamental rights again go further than is reasonably necessary for the furtherance of those objects (§193(6)). In holding so, the Court had regard inter alia to its observation that there is “practically no limit on the circumstances in which the power under that section can be exercised by a police officer, save the requirement that (i) the person is in a public place, and (ii) the facial covering used by that person is reasonably believed by the police officer to be likely to prevent identification” and that the power “can be exercised irrespective of whether there is any public meeting or procession taking place in the vicinity, and regardless of whether there is any risk of outbreak of violence or other criminal acts, at the place where the person is found, or in the neighbourhood, or indeed anywhere else in Hong Kong” (§189).

Relief

The Court has not heard submissions on the question of relief and the respondents have asked for an opportunity to address the court should that question arise. In the light of its conclusions above, the Court shall convene a hearing on the appropriate relief and costs (§194). The Court did not make any order in its judgment on 18 November 2019.

Participation by Members of Chambers

Johannes Chan SC, Earl Deng, Jeffrey Tam, Geoffrey Yeung and Allison Wong, led by Gladys Li SC, acted for the applicants in HCAL 2945/2019.

Hectar Pun SC and Anson Wong Yu Yat, together with Lee Siu Him, acted for the applicant in HCAL 2949/2019.