Hong Kong Case Law: Decisions & Judgments

Topic

Delegation of legislative power

Legal area

Court

21 Dec 2020

KWOK WING HANG AND 23 OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER

Citation

[2020] HKCFA 42
Court

Court of Final Appeal
Case number

FACV6/2020

The Court held the ERO is constitutional: it authorises the CEIC to make emergency subsidiary legislation without impermissibly delegating general legislative power because such delegation is appropriately limited by the ERO's internal constraints, judicial review, LegCo negative vetting and Basic Law safeguards. Applying the four-step proportionality test, the Court held the PFCR's prohibitions in section 3 (including 3(1)(b),(c),(d)) are rationally connected to legitimate aims and are no more than reasonably necessary and strike a fair balance, whereas section 5 had been previously held dis…
21 Dec 2020

LEUNG KWOK HUNG (梁國雄) v. SECRETARY FOR JUSTICE AND ANOTHER

Citation

[2020] HKCFA 42
Court

Court of Final Appeal
Case number

FACV8/2020

The Court held the ERO is a constitutional empowering statute permitting the CEIC to make emergency subsidiary regulations subject to judicial, legislative and constitutional constraints; the PFCR was justified by evidence of public danger and section 3 (prohibiting facial coverings likely to prevent identification at specified public gatherings) is rationally connected, necessary and strikes a fair balance and is therefore proportionate; applicants' challenges to the ERO and to section 3 failed; Government appeal allowed in part.
21 Dec 2020

KWOK WING HANG AND 23 OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER

Citation

[2020] HKCFA 42
Court

Court of Final Appeal
Case number

FACV7/2020

The Court held the ERO is constitutionally valid: it authorises the CE in Council to make subsidiary emergency regulations but does not impermissibly delegate core legislative power because the power is subject to judicial review, LegCo scrutiny (negative vetting and amendment) and Basic Law constraints (including HKBORO/ICCPR protections). Applying a four-step proportionality test to the PFCR, the prohibition in section 3 (including subsections (1)(b),(c),(d) when read against the POO categories) pursues legitimate aims of deterring violence and facilitating law enforcement, is rationally co…
21 Dec 2020

CHIEF EXECUTIVE IN COUNCIL AND ANOTHER v. KWOK WING HANG AND 23 OTHERS

Citation

[2020] HKCFA 42
Court

Court of Final Appeal
Case number

FACV9/2020

The ERO does not impermissibly delegate general legislative power to the Chief Executive in Council; regulations made under it are subordinate emergency regulations subject to judicial, legislative and constitutional control. The PFCR pursues legitimate aims (deterrence of criminality and facilitation of law enforcement), is rationally connected to those aims and section 3 (prohibiting facial coverings likely to prevent identification at unlawful assemblies, unauthorized assemblies, public meetings and public processions) is a proportionate and necessary restriction on protected rights; secti…
20 Nov 2000

HKSAR v. LAM GEOTECHNICS LTD.

Citation

HKSAR v. LAM GEOTECHNICS LTD.
Court

Court of First Instance
Case number

HCMA379/2000

Regulation 44 of the CS(S)R is invalid (ultra vires) because the qualification 'to the satisfaction of the Commissioner' leaves the elements of the offence insufficiently defined and enables the Commissioner to determine criminal liability by administrative fiat; accordingly the charge is struck out and the conviction quashed.
10 May 1990

ATTORNEY GENERAL v. CHAN FOO

Citation

ATTORNEY GENERAL v. CHAN FOO
Court

Court of First Instance
Case number

HCMA1475/1989

The Governor‑in‑Council lacked power to impose licence 'conditions' other than by making regulations under s.3(1)(d) of the Miscellaneous Licences Ordinance; the so‑called 'special conditions' were in substance licence conditions/terms and therefore required to be made by regulation and not by executive approval, rendering the age‑exclusion condition ultra vires and not binding.

Hong Kong Case Law

KWOK WING HANG AND 23 OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER

LEUNG KWOK HUNG (梁國雄) v. SECRETARY FOR JUSTICE AND ANOTHER

KWOK WING HANG AND 23 OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER

CHIEF EXECUTIVE IN COUNCIL AND ANOTHER v. KWOK WING HANG AND 23 OTHERS

HKSAR v. LAM GEOTECHNICS LTD.

ATTORNEY GENERAL v. CHAN FOO