HKSAR v. NG KUNG SIU AND ANOTHER

HKSAR v. NG KUNG SIU AND ANOTHER

Sections 7 of the National Flag and National Emblem Ordinance and the Regional Flag and Regional Emblem Ordinance are inconsistent with Article 19 of the ICCPR as applied by Basic Law Article 39 and the prosecution failed to show the criminalisation of flag desecration was necessary for protection of public order; the magistrate's reliance on the mere possibility of hostile reaction and judicial notice of a 'sacred' status was insufficient and unreliable, therefore convictions must be quashed.

Citation
HKSAR v. NG KUNG SIU AND ANOTHER
Parties
Respondent: HKSAR; Appellant (d1): NG KUNG-SIU; Appellant (d2): LEE KIN-YUN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 March 1999
Case Number
HCMA563/1998
Procedural Posture
Criminal Appeal (magistracy Appeal) / Court of Appeal Judgment (appeal Allowed)
Outcome
Appeal allowed; convictions quashed.
Legal Topics
Freedom of Expression, Flag Desecration, ICCPR Article 19, Basic Law Article 39, Necessity Test, Public Order Restrictions
Source Language
EN
Constitutional Law Criminal Law Human Rights Law Public Order Law Freedom of Expression Flag Desecration ICCPR Article 19 Basic Law Article 39 +2 more

Case Brief

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Parties

HKSAR

Respondent

NG KUNG-SIU

Appellant (d1)

LEE KIN-YUN

Appellant (d2)

Procedural Posture

Criminal Appeal (magistracy Appeal) / Court of Appeal Judgment (appeal Allowed)

Legal Issues

  1. 1 Whether sections 7 of the National Flag and National Emblem Ordinance and the Regional Flag and Regional Emblem Ordinance are inconsistent with ICCPR Article 19 as incorporated by Basic Law Article 39
  2. 2 Whether criminalising desecration of national and regional flags is justified as 'necessary' for protection of public order under Article 19(3) ICCPR
  3. 3 Whether the magistrate erred in treating the possibility of hostile reaction as sufficient justification without evidence

Ratio Decidendi

Sections 7 of the National Flag and National Emblem Ordinance and the Regional Flag and Regional Emblem Ordinance are inconsistent with Article 19 of the ICCPR as applied by Basic Law Article 39 and the prosecution failed to show the criminalisation of flag desecration was necessary for protection of public order; the magistrate's reliance on the mere possibility of hostile reaction and judicial notice of a 'sacred' status was insufficient and unreliable, therefore convictions must be quashed.

Court Disposition

Appeal allowed; convictions quashed.

Orders

  • Quash the convictions of NG Kung‑Siu (D1) and Lee Kin‑Yun (D2)