CHEE FEE MING v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

CHEE FEE MING v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

Section 104A(1)(b), as applied to banners displayed with a degree of permanence and habitual regularity at demonstrators' sites, failed the 'prescribed by law' requirement because the statute contains no criteria or accessible legal guidance limiting the Director's discretion and thus did not afford adequate protection against arbitrary interference with freedoms of expression, assembly and demonstration; accordingly decisions taken under s104C(1) premised on s104A were quashed. The proportionality challenge was not decided on the merits given evidential gaps and the successful legal certainty ground.

Citation
[2018] HKCFI 2031
Parties
Applicant: Chee Fee Ming (substituted by Pun Lin Fa); Applicant: Hung Shui Fung; 1st Respondent: Director of Food and Environmental Hygiene; 2nd Respondent: Secretary for Justice; Interested Party: Lands Department
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 August 2018
Case Number
HCAL73/2013
Procedural Posture
Judicial Review — Constitutional and Administrative Law (conjoined HCAL 73/2013 & HCAL 110/2013) / Judgment on Application for Judicial Review Following Court of Appeal Leave on Limited Grounds
Outcome
Judgment for applicants on legal certainty ground; challenged enforcement decisions quashed
Legal Topics
Freedom of Expression, Freedom of Assembly, Freedom of Demonstration, Statutory Interpretation, Legal Certainty (prescribed by Law), Prior Restraint, Content Screening, Delegation of Powers, Administrative Guidance (management Scheme)
Source Language
EN
Constitutional Law Administrative Law Public Law Human Rights Law Freedom of Expression Freedom of Assembly Freedom of Demonstration Statutory Interpretation +5 more

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Parties

Chee Fee Ming (substituted by Pun Lin Fa)

Applicant

Hung Shui Fung

Applicant

Director of Food and Environmental Hygiene

1st Respondent

Secretary for Justice

2nd Respondent

Lands Department

Interested Party

Procedural Posture

Judicial Review — Constitutional and Administrative Law (conjoined HCAL 73/2013 & HCAL 110/2013) / Judgment on Application for Judicial Review Following Court of Appeal Leave on Limited Grounds

Legal Issues

  1. 1 Whether s104A(1)(b) of the Public Health and Municipal Services Ordinance is 'prescribed by law' (legal certainty) as applied to demonstrators' banners
  2. 2 Whether the statutory scheme permits impermissibly unfettered content‑based discretion in granting or refusing permission under s104A
  3. 3 Whether prior approval requirement in s104A is disproportionate (proportionality) — limited by scope of leave

Ratio Decidendi

Section 104A(1)(b), as applied to banners displayed with a degree of permanence and habitual regularity at demonstrators' sites, failed the 'prescribed by law' requirement because the statute contains no criteria or accessible legal guidance limiting the Director's discretion and thus did not afford adequate protection against arbitrary interference with freedoms of expression, assembly and demonstration; accordingly decisions taken under s104C(1) premised on s104A were quashed. The proportionality challenge was not decided on the merits given evidential gaps and the successful legal certainty ground.

Court Disposition

Judgment for applicants on legal certainty ground; challenged enforcement decisions quashed

Orders

  • Certiorari to quash the Decisions taken under s104C(1) to remove and confiscate banners, placards and portable frames from the applicants' demonstration sites
  • Order nisi that the respondents pay the applicants' costs with a certificate for two counsel and that the applicants' own costs be taxed in accordance with the Legal Aid Regulations