Hong Kong Case Law: Decisions & Judgments

Topic

Freedom of assembly and demonstration

Legal area

Court

18 May 2021

HUNG SHUI FUNG v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

Citation

[2021] HKCFA 16
Court

Court of Final Appeal
Case number

FAMV43/2016

Leave to appeal was refused because it was not reasonably arguable that s.104A(1)(b) excludes attended demonstrators' banners or that the Court of Appeal's purposive construction (requiring a degree of permanence and habitual regularity) was wrong; the statutory scheme legitimately targets environmental nuisance, a display need not be affixed to land to be caught by s.104A, attendance does not remove a display from the scheme, and the applicants failed to show a reasonably arguable case that s.104A(1)(b) is legally uncertain or disproportionate given statutory purpose and available safeguards.
18 May 2021

CHEE FEI MING substituted by PUN LIN FA v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND OTHERS

Citation

[2021] HKCFA 16
Court

Court of Final Appeal
Case number

FAMV213/2020

Leave to appeal was refused because the applicants' proposed construction was not reasonably arguable: the Court of Appeal's purposive construction that s.104A(1)(b) applies to bills/posters displayed with a degree of permanence and habitual regularity (which includes the attended static Falun Gong banners at the same sites) is correct; attendance does not remove a display from the statutory scheme; the proportionality challenge was not reasonably arguable on the existing material (absence of a contested permission decision and insufficient evidence of unlawful content‑screening), so there wa…
16 Dec 2019

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

Citation

[2019] HKCA 1425
Court

Court of Appeal
Case number

CACV489/2018

The Court held s104A(1)(b) is "prescribed by law" because, read holistically with the Management Scheme, statutory objectives, common law limits and availability of judicial review, it provides sufficient clarity and safeguards against arbitrary interference; s104A applies to displays with a degree of permanence and habitual regularity and the residual discretion to permit non‑Management Scheme displays must be exercised guided by the Management Scheme and statutory purposes; the proportionality challenge (including content‑screening) failed on the available materials. The appeal was allowed…
16 Dec 2019

HUNG SHUI FUNG v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

Citation

[2019] HKCA 1425
Court

Court of Appeal
Case number

CACV490/2018

The Court allowed the appeal, set aside the judge's finding that s104A failed the "prescribed by law" requirement and dismissed the judicial review applications: s104A, construed with the Management Scheme, statutory objectives and common law safeguards (including judicial review), provides sufficient foreseeability and protection against arbitrary interference; s104A applies to displays with a degree of permanence or habitual regularity; the Management Scheme's content criteria are sufficiently precise and content‑screening is permissible only to the extent necessary to the statutory aims; t…
6 Jun 2016

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

Citation

CHEE FEI MING v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER
Court

Court of Appeal
Case number

CACV219/2014

The Court held that s104A, properly construed, can cover banners used in static demonstrations and the applicants' construction excluding such banners was not reasonably arguable; however the applicants established a reasonably arguable case that the approval regime under s104A may fail the "prescribed by law" requirement and raises arguable proportionality concerns because the statutory framework and Management Scheme did not on the material before the Court demonstrate sufficient legal certainty and accessible criteria for approval. The Court therefore refused leave on the original grounds…
6 May 2013

TURBO TOP LTD v. LEE CHEUK YAN AND OTHERS

Citation

TURBO TOP LTD v. LEE CHEUK YAN AND OTHERS<br>
Court

Court of First Instance
Case number

HCA694/2013

The court found serious issues to be tried and that damages were not an adequate remedy but, on balance, the public character and arguable licence attaching to the Open Space, the statutory protection for peaceful picketing (s46 Trade Unions Ordinance), the peaceful nature of the demonstrations and police non‑objection favoured refusing broad interlocutory relief; however, because the building itself is in the plaintiff's exclusive possession and entry on 24 April had caused disruption, the limited ex parte injunction restraining entry into the building must continue; a narrowly tailored inte…
11 Jun 2009

SECRETARY FOR JUSTICE v. MATT JAMES PEARCE

Citation

SECRETARY FOR JUSTICE v. MATT JAMES PEARCE
Court

Court of First Instance
Case number

HCMA1078/2008

The magistrate's conclusion that there was no case to answer was perverse because he misapplied Yeung May Wan by overstating similarities, failed to account for material distinctions (single demonstrator, deliberate control of pedestrians, persistence and individual longer blockages) and over-relied on aggregate statistics; on the evidence there was a case to answer, so the appeal is allowed and the magistrate's dismissal is set aside with remittal for trial de novo.

Hong Kong Case Law

HUNG SHUI FUNG v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

CHEE FEI MING substituted by PUN LIN FA v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND OTHERS

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

HUNG SHUI FUNG v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

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

TURBO TOP LTD v. LEE CHEUK YAN AND OTHERS

SECRETARY FOR JUSTICE v. MATT JAMES PEARCE