Hong Kong Case Law: Decisions & Judgments

Topic

Proportionality review

Legal area

Court

14 May 2024

SECRETARY FOR JUSTICE v. LI YIK HO

Citation

[2024] HKCFA 12
Court

Court of Final Appeal
Case number

FACV4/2024

The Permanent Judge held that the applicants for adjournment did not demonstrate sufficiently cogent grounds to re‑fix the hearing dates; lack of availability of preferred leading counsel (Lord Pannick KC), even in complex public law matters, is not by itself a strong and cogent reason to vacate fixed Court of Final Appeal dates and the parties could seek alternative competent counsel; accordingly the summonses to adjourn were dismissed and the originally fixed hearing dates were maintained.
14 May 2024

THE HONG KONG HOUSING AUTHORITY v. LI YIK HO

Citation

[2024] HKCFA 12
Court

Court of Final Appeal
Case number

FACV3/2024

The summonses to re-fix the appeal hearing dates were dismissed because the non-availability of a preferred leading counsel (Lord Pannick KC) did not constitute a sufficiently strong and cogent reason to vacate court-fixed dates, the respondents had not shown efforts to secure alternative equivalent counsel or that lack of that particular counsel would cause injustice, and prejudice to applicants did not outweigh the public interest in maintaining the court's allocated hearing schedule.
14 May 2024

THE HONG KONG HOUSING AUTHORITY v. INFINGER, NICK

Citation

[2024] HKCFA 12
Court

Court of Final Appeal
Case number

FACV2/2024

The summonses to re‑fix the hearing dates were dismissed because the applicants failed to demonstrate sufficiently cogent reasons pertaining to the administration of justice to justify vacating fixed Court dates; the non‑availability of preferred counsel alone did not amount to such a reason, and there was no evidence of attempts to secure alternative counsel or that lack of the preferred counsel would occasion injustice.
8 Jan 2024

香港特別行政區訴范敏怡

Citation

[2024] HKCFI 90
Court

Court of First Instance
Case number

HCMA435/2022

The appeal is dismissed because the evidence (witness testimony and body‑worn CCTV) established the appellant was not wearing a mask or not wearing it properly at the relevant times; the appellant failed to discharge the evidential burden under reg 6(3) to show a lawful or reasonable excuse (no objective medical evidence of incapacity or serious distress and walking was not 'physically demanding'); the station platform was within the paid area so reg 4 applied; the imposition of additional fines and costs under Schedule 2 was lawful given the court's finding that the defences were frivolous o…
6 Feb 2023

Q v. COMMISSIONER OF REGISTRATION

Citation

[2023] HKCFA 4
Court

Court of Final Appeal
Case number

FACV8/2022

The Court held the Commissioner’s Policy requiring completion of full SRS as a necessary condition to amend HKID gender markers unjustifiably and disproportionately infringes BOR 14 privacy rights; full SRS is not the only workable, objective or necessary criterion, the claimed administrative and reversibility justifications fail, and the Policy places an unacceptable burden on individuals, thus the Policy and the Commissioner’s refusals were unconstitutional and were quashed.
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

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

Citation

[2021] HKCFA 16
Court

Court of Final Appeal
Case number

FAMV214/2020

Leave to appeal was refused because the applicants failed to show a reasonably arguable case: the Court of Appeal's purposive construction that s.104A(1)(b) covers bills and posters displayed with a degree of permanence and habitual regularity (attended or unattended) is sensible; the applicants' construction excluding attended demonstrators' banners was not reasonably arguable; and the proportionality and legal-certainty challenges (including content-screening/unfettered discretion) were not reasonably arguable on the material before the court given statutory purpose and available safeguards.
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

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…