A. Nature, extent and limitations

A. Nature, extent and limitations

Freedom of assembly, procession and demonstration is guaranteed under Article 27 of the Basic Law. Article 17 of the Hong Kong Bill of Rights also recognises the right of peaceful assembly. Freedom of demonstration is well recognised by the Court of Final Appeal as a constitutional right that is closely associated with the freedom of speech and at the heart of Hong Kong’s system. A generous interpretation to the freedom to demonstrate should be given to guarantee this constitutional right even when the view expressed may be found to be disagreeable, or even offensive, to others or may be critical of persons in authority. (Yeung May Wan & Others and HKSAR (2005) 8 HKCFAR 137)

Yet, the freedom of assembly, procession and demonstration is not absolute. Restrictions on it can be placed if (1) they are prescribed by law and (2) are necessary to pursue a legitimate aim in a democratic society, namely (i) in the interests of national security or public safety, (ii) what is necessary for the protection of the general welfare or for the interests of the collectively as a whole, (iii) protection of public health or morals, or (iv) the protection of the rights and freedoms of others.

The right of peaceful assembly and the right to freedom of expression stopped, so far as physical or geographical limits were concerned, at the boundary of private residential property belonging to others, in the absence of any permission to enter. (HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371)

As for any “public open space” (as designated by the relevant Government lease) in a private building, lawful and peaceful demonstrations may be staged as long as it is one that the public could reasonably be expected to tolerate, provided that there is no obstruction of ingress to and egress from the building and of pedestrian or vehicular traffic. However, in respect of a narrow and often busy public walkway such as the one along Queen’s Road Central near the steps to the upper ground floor, taking into account the public’s interest, tents, canopies and other temporary structures may not be able to be erected there. (Turbo Top Ltd v. Lee Cheuk Yan and Others [2013] 3 HKLRD 41)

Conducts of the public within the Legislative Council premises are regulated by the Administrative Instructions for Regulating Admittance and Conduct of Persons (Cap. 382A). Section 11 of the Administrative Instructions provides that “Persons entering or within the precincts of the Chamber shall behave in an orderly manner ...”. Under section 12(1), which the Court of Final Appeal has ruled to be constitutional, “No person shall, in a ... public gallery, display any sign, message or banner.” (HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, HKSAR v Cheung Kwai Choi [2018] HKCFI 2243)

As for the use of East Wing Forecourt of the Central Government Offices (calling it “Civic Square” is a misnomer), the Director of Administration introduced a permission scheme under which the Forecourt was only open to the public on Sundays and public holidays from 10am to 6:30pm for holding public meetings and processions upon application to the Director for approval, irrespective of the manner of the intended meeting or procession or number of persons involved. This scheme was constitutional and the designated public activity area situated just outside the CGO and Tamar Park as no less effective as a demonstration locality compared with the Forecourt. (Cheung Tak Wing v. Director of Administration [2020] 1 HKLRD 906) 

“Restrictions”

A restriction on the rights to freedom of expression and assembly (article 27 Basic Law, articles 16-17 Hong Kong Bill of Rights) may be declared unconstitutional if it is:

1. not prescribed by law
2. tainted by illegality
3. not proportionate

“Prescribed by law”

A restriction is prescribed by law if it is (Cheung Tak Wing v. Director of Administration [2020] 1 HKLRD 906 at [47] – [50]):

1. Imposed with proper legal authority;
2. Accessible; and
3. Formulated with sufficient precision, clarity and safeguards to protect individual against abuse by way of arbitrary interference of his rights.

“Illegality”

A restriction could be tainted with illegality by reason of error of fact or error of law or both.

“Proportionality”

The proportionality between the restriction and the said constitutional rights can be analysed by adopting a 4-step test (Cheung Tak Wing v. Director of Administration [2020] 1 HKLRD 906 [102]):

1. Whether the restriction pursues a legitimate aim which falls within one of the permitted categories in articles 16-17 of Hong Kong Bill of Rights;
2. Whether it is rationally connected with accomplishing that aim;
3. Whether the restriction is no more than reasonably necessary for accomplishing that purpose; and
4. Whether a reasonable balance has been struck between the societal benefits of the encroaching measure on the one hand and the inroads made into the guaranteed right on the other.

The applicable standard is “no more than necessary” rather than “manifestly without reasonable foundation”.