FACV 9 of 2020

IN THE COURT OF FINAL APPEAL

OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 9 OF 2020 (CIVIL)
(ON APPEAL FROM CACV NO. 542 OF 2019)
_______________________
BETWEEN

KWOK WING HANG 1st Applicant (1st Respondent)

CHEUNG CHIU HUNG 2nd Applicant (2nd Respondent)

TO KUN SUN JAMES 3rd Applicant (3rd Respondent)

LEUNG YIU CHUNG 4th Applicant (4th Respondent)

JOSEPH LEE KOK LONG 5th Applicant (5th Respondent)

MO, MAN CHING CLAUDIA 6th Applicant (6th Respondent)

WU CHI WAI 7th Applicant (7th Respondent)

CHAN CHI-CHUEN RAYMOND 8th Applicant (8th Respondent)

LEUNG KAI CHEONG KENNETH 9th Applicant (9th Respondent)

KWOK KA-KI 10th Applicant (10th Respondent)

WONG PIK WAN 11th Applicant (11th Respondent)

IP KIN-YUEN 12th Applicant (12th Respondent)

YEUNG ALVIN NGOK KIU 13th Applicant (13th Respondent)

ANDREW WAN SIU KIN 14th Applicant (14th Respondent)

CHU HOI DICK EDDIE 15th Applicant (15th Respondent)

LAM CHEUK-TING 16th Applicant (16th Respondent)

SHIU KA CHUN 17th Applicant (17th Respondent)

TANYA CHAN 18th Applicant (18th Respondent)

1
 HUI CHI FUNG 19th Applicant (19th Respondent)

KWONG CHUN-YU 20th Applicant (20th Respondent)

TAM MAN HO JEREMY JANSEN 21st Applicant (21st Respondent)

FAN, GARY KWOK WAI 22nd Applicant (22nd Respondent)

AU NOK HIN 23rd Applicant (23rd Respondent)

CHARLES PETER MOK 24th Applicant (24th Respondent)

and

CHIEF EXECUTIVE IN COUNCIL 1st Respondent (1st Appellant)

SECRETARY FOR JUSTICE 2nd Respondent (2nd Appellant)

______________________________________________________________

CASE FOR THE APPLICANTS (RESPONDENTS IN FACV 9/2020)

IN REPLY 1
______________________________________________________________

Notes:
1. All emphases are added except when otherwise stated.
2. [A/1/2/§3] refers to Record Part A, Tab 1, Page 2, Paragraph 3.

1
For avoidance of confusion and for consistency of references adopted in judgments below, the 24
Applicants are referred to the Applicants in this Printed Case.

2
 ACRONYMS AND ABBREVIATIONS
(in alphabetical order)

BOR Hong Kong Bill of Rights;

CA Court of Appeal;
CA Judgment Judgment of the CA dated 9 April 2020;
CEIC Chief Executive in Council;
CE Chief Executive;
CFI Court of First Instance;
CFI Judgment Judgment of the CFI dated 18 November 2019;
ERO Emergency Regulation Ordinance, Cap. 241;
HKBL Hong Kong Basic Law;
HKBORO Hong Kong Bill of Rights Ordinance, Cap. 383;
ICCPR International Covenant on Civil and Political Rights;
PFCR Prohibition on Face Covering Regulation, Cap. 241K;
POO Public Order Ordinance, Cap. 245.

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A. INTRODUCTION

1. On 9 April 2020, the CA handed down the CA Judgment, partly allowing

and partly dismissing the Respondents’ appeal against the CFI Judgment.
It was not disputed by the Respondents before the CA that the PFCR
imposed restrictions on fundamental rights protected by the HKBL and the
BOR and that the burden was on the Respondents to justify the restrictions,
in addition to being prescribed by law, under the proportionality test as laid
down in the Hysan case.2 In these premises, the CA held inter alia that
s.3(1)(c) and (d) of the PFCR relating to public meeting and public
procession cannot satisfy the proportionality test in that they are more than
reasonably necessary to achieve the legitimate aim and do not strike a fair
balance between the societal benefits pursued by the restrictions and the
inroads made to the rights of the individuals and are therefore
unconstitutional 3 , and in so holding, the CA adopted the standard of
scrutiny of “no more than [reasonably] necessary” 4.

A1. Ambit of the Present Appeal

2. The Respondents’ appeal to this Court on four certified questions:-

(1) Question 1: Whether s.3(1)(c) of the PFCR is constitutional, in

particular whether the restriction imposed by s.3(1)(c) of the PFCR
on the freedom of expression, of assembly and demonstration and
the right to privacy is proportionate to the aim sought to be achieved;

2
CA Judgment, §156 [A/5/210-211]
3
CA Judgment, §§242-248 [A/5/249-251]
4
CA Judgment, §§156-164 [A/5/210-213] The phrase “no more than necessary” has been used to
refer to the 3rd step of the proportionality analysis as well as the standard of scrutiny that is to be
adopted in applying the proportionality analysis. It is not an issue that “no more than necessary”
standard in this context means “no more than reasonably necessary”: Hysan, §83. Regarding the
standard of scrutiny, the issue is whether the standard of scrutiny should be “no more than necessary”
or “manifestly without reasonable foundation”: see CA Judgment, §158 [A/5/211].

4
 (2) Question 2: Whether s.3(1)(d) of the PFCR is constitutional, in
particular whether the restriction imposed by s.3(1)(d) of the PFCR
on the freedom of expression, of assembly and demonstration and
the right to privacy is proportionate to the aim sought to be achieved;

(3) Question 3: Whether the CA erred in adopting the standard of “no

more than necessary” as opposed to “manifestly without reasonable
foundation” in the present case, and what the appropriate margin of
discretion to be accorded to the exercise of the judgment by the CEIC
in enacting s.3(1)(c) and (d) of the PFCR is; and

(4) Question 4: Irrespective of the applicable standard of scrutiny,

whether s.3(1)(c) and (d) of the PFCR are reasonably necessary and
can satisfy the proportionality test, and whether the CA erred in
holding to the contrary.

3. Notwithstanding the multiplicity of the certified Questions and the way in

which they are framed, the ambit of the present appeal is in fact narrow
and, for this part of the appeal, concerns only two issues, namely, (i)
whether restrictions imposed by s.3(1)(c) and (d) of the PFCR on the right
to privacy and the freedoms of expression and peaceful assembly satisfy
the proportionality test 5; and (ii) the appropriate standard of scrutiny to be
adopted when assessing the proportionality of s.3(1) of the PFCR (in
particular s.3(1)(c) and (d))6. On the Respondents’ own case, Questions 1
and 2 are no more than asking the same question as in Question 4 – the
Respondents combined their submissions on Questions 1, 2 and 4 together

5
Questions 1, 2 and 4 of the Respondents’ Notice of Appeal [A/54/555-557]
6
Question 3 of the Respondents’ Notice of Appeal [A/54/555-557]

5
 and base their case entirely on the proportionality assessment of s.3(1)(c)
and (d) of the PFCR 7.

4. It is also common ground that s.3(1) of the PFCR imposes restrictions on

the right to privacy and the freedoms of expression and peaceful assembly
as protected by HKBL 27 and BOR 14, 16 and 17. The Respondents’
submissions on Questions 1, 2 and 4 did not dispute the CA’s finding that
the PFCR imposed restrictions on these fundamental rights 8 and went
straight to the application of the proportionality test (i.e. legitimate aim,
rational connection and the proportionality assessment).

A2. Summary of the Applicants’ Case in Reply

5. At the outset, it should be emphasized that s.3(1)(c) and (d) of the PFCR
apply the restrictions to authorized public assemblies / processions that are
entirely peaceful. Unauthorized public assemblies / processions, whether
peaceful or otherwise, are covered by s.3(1)(b) of the PFCR, and unlawful
assemblies, which are not peaceful by definition, are covered by s.3(1)(a)
thereof. The overall effect of s.3 of the PFCR is to prohibit the wearing of
masks in all public assemblies / processions, authorized, peaceful or
otherwise. The only justification put forward by the Government to impose
such blanket restrictions to lawful and peaceful public assemblies /
processions is the flimsy and speculative ground that such restrictions may
possibly prevent, avert or minimize the risk of outbreaks of violence, even
when there is no evidence, no sign, and no reasonable suspicion of any such
outbreaks or risk of outbreaks in any of such assemblies or processions. In
other words, the PFCR as drafted is intended as a form of pre-emptive
criminal justice. The burden, if it could be discharged at all, must be very

7
Respondents’ Case, §§14-24.
8
CA Judgment, §156 [A/5/210-211]

6
 onerous. Both the CFI and the CA have had no hesitation in rejecting such
an argument.

6. In summary, the Applicants answer all four Questions in the negative.

More specifically:-

(1) The answer to Question 3 is “No”:-

(a) S.3(1) of the PFCR restricts fundamental constitutional

freedoms. The restrictions imposed should not be trivialised as
a “minor inhibition” on mask-wearing during lawful assemblies
/ processions; quite the contrary, they can have a significant
impact on the freedom of expression and peaceful assembly.

(b) The Court is constitutionally and institutionally well-placed

to make proportionality assessment in public order matters and
in the present case, in respect of the PFCR. It is also the Court’s
constitutional duty to protect the rights of individuals.

(c) The allegedly “temporary” PFCR remains in force well over a

year since 4 October 2019, even when the prohibition of
wearing masks has been overtaken by events, and there is no
indication that the CEIC will issue an order for its repeal.
Therefore, the CA rightly did not and this Court, should not
take into account the alleged “temporary” nature of the
PFCR in determining the appropriate standard of scrutiny. It
is an irrelevant factor in any event. It is defiance of logic to
suggest that the courts should adopt a lower standard of scrutiny
over a plainly unconstitutional restriction merely because it
applies temporarily when the regulations were immediately

7
 enforced and used to arrest persons alleged to be in
contravention 9.

(d) A preventive power in the form of restrictions is more

susceptible to abuses, and on this ground alone a preventive
power should be subject to closer or a more rigorous scrutiny.

(e) In light of the above, the applicable standard of scrutiny to be

applied to the restriction in s.3(1) of the PFCR shall therefore
be “no more than reasonably necessary”. In the premises,
the CA did not err in adopting the standard of “no more than
[reasonably] necessary” in assessing the proportionality of
s.3(1) of the PFCR.

(2) The answer to Questions 1, 2 and 4 is also “No”:-

(a) There can be no dispute that the constitutional guarantee of the

freedom of speech/expression and the right to peaceful
assembly must be given a generous interpretation.

(b) S.3(1)(c) and (d) of the PFCR impose restrictions which curtail
the exercise of these fundamental rights in a substantial
manner.

(c) S.3(1)(c) and (d) of the PFCR also have the effect of a near-
blanket prohibition against the wearing of facial covering
while participating in completely lawful and peaceful
activities without any mechanism for a case-by-case
assessment of the risk of any specific gathering developing or
turning into a violent one. In this respect, the Respondent

9
See 2nd Affirmation of Kwok Wing Hang, §56 [B/XX].

8
 erroneously classified the prohibition of facial covering as “pre-
emptive and preventive measures to avert or minimise the
known risk of outbreaks of violence”. 10 The prohibition is,
indeed, all embracing.

(d) The Respondents’ case is misconceived. First, the effect and

importance of “pre-emptive and preventive measures” is
exaggerated. If any violence breaks out in a peaceful assembly
or procession, such assembly or procession will turn into an
unlawful assembly and the wearing of facial coverings by those
participants will be caught by s.3(1)(a) of the PFCR. Second,
the Respondents pay no regard at all to the right of law-abiding
citizens participating in lawful assemblies or processions to
wear facial coverings for legitimate reasons and as a means of
expression.

(e) Accordingly, s.3(1)(c) and (d) of the PFCR restrict the freedom
of expression and the right of peaceful assembly in a
disproportionate manner, fails to strike a fair balance and is
unconstitutional.

10
Respondents’ Case, §16(5).

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B. QUESTION 3: THE APPLICABLE STANDARD OF SCRUTINY
BEING “NO MORE THAN REASONABLY NECESSARY”

7. It is not disputed that in considering the standard of scrutiny, there are three
aspects to consider, namely (i) the nature of the right and the degree to
which it has been encroached on; (ii) the identification of the relevant
decision-maker; and (iii) relevance of the margin of appreciation: Kwok
Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017)
20 HKCFAR 353 at §38. The CA applied the same principle in deciding
the applicable standard of scrutiny 11.

8. Having regard to the three aspects of consideration and the established

authorities, the applicable standard of scrutiny in respect of s.3(1) of the
PFCR should be “no more than reasonably necessary”. None of the
arguments raised by the Respondents justify the adoption of the alternative
standard of “manifestly without reasonable foundation”.

B1. Substantial Restrictions of Fundamental Rights and Freedom

9. This Court has emphasised the importance of the fundamental

constitutional freedom of peaceful assembly and freedom of speech at the
outset of the seminal decision of Leung Kwok Hung and Others v HKSAR
(2005) 8 HKCFAR 229. There can be no dispute that “[t]he freedom of
speech and the freedom of peaceful assembly are precious and lie at the
foundation of a democratic society” and “[t]hese are of cardinal
importance for the stability and progress of society.”12

11
CA Judgment, §§242-248 [A/5/249-251]
12
Leung Kwok Hung, §§1-2.

10
10. The CFI13 and the CA14 duly recognised the cardinal importance of these
rights; they 15 also acknowledged that s.3(1) of the PFCR imposes
restrictions which curtail the exercise of these fundamental rights in a
substantial manner16.

11. Against the warning of the CFI that “the restriction imposed by the PFCR
is … not to be trivialised as a minor inhibition on mask-wearing during
demonstration”, the Respondents made various arguments in an attempt to
downplay the degree of encroachment of these rights, namely (i) the phrase
“facial covering” has a confined meaning; (ii) a defence of reasonable
excuse is available; (iii) the wearing of facial covering is not the core of
the rights/freedoms 17. These arguments are flawed:-

(1) Fundamentally, wearing of facial coverings is to be considered as an

inherent aspect of the rights under protection as recognised in the
observations by the UN Human Rights Committee in General
Comment No. 37 on Article 21 – on Right of peaceful assembly
(CCPR/C/GC/37) at §60: “The wearing of face-coverings or other
disguises by assembly participants, such as hoods or masks, or
taking other steps to participate anonymously may form part of the
expressive element of a peaceful assembly, serve to counter
reprisals, or to protect privacy, including in the context of new
surveillance technologies. The anonymity of participants should be
allowed unless their conduct presents reasonable grounds for arrest,
or there are other similarly compelling reasons. The use of disguises

13
CFI Judgment, §148 [A/1/79]
14
CA Judgment, §161 (describing the rights as “fundamental”) [A/5/212]
15
CFI Judgment, §148 [A/1/79]; CA Judgment, §161 [A/5/212]
16
The Applicants made detailed submissions on the extent to which s.3(1)(b) of the PFCR substantially
restricts fundamental rights in §§188 and 190 of the Applicants’ Case in FACV 6&7/2020.
17
Respondents’ Case, §11.

11
 should not in itself be deemed to signify violent intent.”18. The full
protection of the right of peaceful assembly depends on the
protection of a range of rights, including the right to privacy. 19 There
are also numerous legitimate reasons why a person would like to
wear a mask in exercising his legitimate right to peaceful assembly,
such as the fear of doxxing, let alone public health concerns 20.

(2) The Respondents’ alleged confined meaning of “facial covering”, is

inconsistent with and contrary to the broad definition of this term in
s.2 of the PFCR (viz. mask or any other article of any kind (including
paint) that covers all or part of a person’s face). This definition
covers a wide range of situations such as pulling up a pullover or
hoody to cover part of the face to prevent wind chills or wearing a
surgical mask that is worn practically by everyone on the streets
these days. Wearing such face covering could give rise to potential
criminal liability. The inherent vagueness of the phrase “likely to
prevent identification” also renders the so-called limitation

18
See also: Venice Commission, Guidelines on Freedom of Peaceful Assembly (3rd ed) at §153 (“No
blanket or routine restrictions on the wearing of masks and face-coverings. The wearing of masks
and face coverings at assemblies for expressive purposes is a form of communication protected by
the rights to freedom of speech and assembly. It may occur in order to express particular viewpoints
or religious beliefs or to protect an assembly participant from retaliation. The wearing of masks or
other face coverings at a peaceful assembly should not be prohibited where there is no demonstrable
evidence of imminent violence. An individual should not be required to remove a mask unless his/her
conduct creates probable cause for arrest and the face covering prevents his/her identification.”);
African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and
Assembly in Africa at §81 (“The right to freedom of expression in the context of assemblies protects
the manner in which assemblies are conducted as well as the paraphernalia used, including flags,
masks, symbols, banners, posters and other objects as well as their content.”) and Office of the
Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights,
Protest and Human Rights, Protest and Human Rights – Standards on the rights involved in social
protest and the obligations to guide the response of the State at §88 (“Bandanas, masks, hoods, caps,
backpacks, and other types of clothing and accessories are very common at public demonstrations.
These items cannot be considered sufficient indicators of a threat of violence, nor can they be used
as grounds for the dispersal, arrest, or repression of demonstrators. The IACHR has stressed that,
in a democracy, States must act based on the lawfulness of protests or public demonstrations and
on the assumption that they do not constitute a threat to public order.”)
19
General Comment No.37 at §§98-99.
20
As recognized in the CFI Judgment, §155 [A/1/83]

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 inoperable and is open to arbitrary application, especially when this
definition applies to peaceful and lawful assemblies / processions.
The loose definition of facial covering and its potential for the
exercise of arbitrary power call for a stricter standard of scrutiny of
“no more than reasonably necessary”.

(3) Even if s.4 of the PFCR provides for a narrow defence of reasonable
excuse, it does not amount to sufficient protection to the innocent
protestors for the reasons that (i) an innocent participant of
assemblies, meetings and/or processions (or a passer-by who is
present at the place where the assemblies take place 21 ) may be
subject to arrest and detention which involves deprivation of liberty;
and (ii) s.4 of the PFCR imposes an evidential burden on that person
to provide reasonable excuse for his wearing of the mask. In any
event, whether there is a defence of reasonable excuse has no bearing
on the standard of scrutiny to be applied. A defence applies ex post
facto after an offence has been committed.

12. As s.3(1) of the PFCR substantially restricts fundamental rights and

freedoms, it favours the adoption of a stricter standard of scrutiny of “no
more than reasonably necessary”.

B2. Constitutional Duty and Institutional Capacity of the Courts

13. In addition, it is said to be part of the courts’ constitutional duty to protect

fundamental rights. In Fok Chun Wa v Hospital Authority (2012) 15
HKCFAR 409 at §81, this Court confirmed that “[w]here core values or
fundamental concepts are involved, these are areas where the courts have

21
See the Applicants’ Case on Question 4 in FACV 6&7/2020.

13
 (for want of better terms) expertise and experience, and it is part of their
constitutional duty to protect these values or concepts.”

14. In the present case, this Court is similarly tasked with this constitutional
duty to protect the fundamental freedoms of expression and peaceful
assembly, as the CA recognised22.

15. In fact, the mode of making regulations under the ERO – being enacted by
the CEIC without the usual safeguards of ordinary legislative process
and/or public consultation 23 and taking immediate effect 24 – demands a
stricter standard of scrutiny. It is incumbent on the courts to exercise their
supervisory jurisdiction over the Executive as required by the system of
checks and balances, especially so when the PFCR is not an
uncontroversial piece of legislation. In 2017, when the Government was
asked on the subject of the enactment of anti-mask legislation, the then
Secretary for Security acknowledged the existence of both positive and
negative views in the community and thus the necessity of prudently
looking into and carefully considering the various potential impacts that
anti-mask legislation may bring25. The Government also explained they
were exploring the issue of anti-mask legislation including “the specific
provisions of relevant law overseas, their legislative background, scope of
regulation, accepted exceptions, previous decided cases, verdicts and
sentencing and how they strike a balance between the legislative intent and
issues like personal privacy and other rights” and ended with an
acknowledgment of the complexity of the issues with far-reaching
impact 26. Thus, when the enactment of the PFCR eventually escaped the

22
CA Judgment, §162 [A/5/212-213]
23
KWH-1, §§13 and 17 [B/XX]
24
KWH-1, §13 [B/XX]
25
KWH-42 [B/XX]
26
KWH-42 [B/XX]

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 usual safeguards of ordinary legislative process and/or public consultation,
the courts as goalkeeper should subject the PFCR to close scrutiny.

16. Further, when enacting the PFCR, no one outside the Executive Council
has any idea what (if any) careful consideration of various potential
impacts took place in the making of these regulations beyond what is stated
in the LegCo Brief. Evidence of the deliberation process within the
Executive Council has not been adduced. There is no factual or other basis
for according any kind of margin of discretion to the Executive other than
the bare assertions made in the LegCo Brief 27 and/or the Respondents’
submissions.

17. Quite contrary to the Respondents’ contention, there are actually numerous
established authorities reaffirming that the courts are both constitutionally
and institutionally well-placed to make proportionality assessments in
respect of public order matters including legislation relating to the
maintenance of law and order: Leung Kwok Hung (supra.) and more
recently Cheung Tak Wing v Director of Administration [2020] 1
HKLRD 906 at §§95-101. It has been held that the courts will not be
institutionally disadvantaged so long as it is armed with information as set
out in the evidence adduced by the respondents, and therefore there is no
need to adopt the less stringent test of “manifestly without reasonable
foundation” 28 . The question here is whether the encroachment of
fundamental rights imposed by s 3(1)(c) and (d) of the PFCR is outweighed
by the social benefit of the prevention of crimes and/or restoration of public
order. This is the kind of balancing exercise that the courts routinely make.

27
KWH-1, §§14-16 [B/XX]
28
Cheung Tak Wing (supra.), §101.

15
18. In the present case, the Respondents filed extensive evidence including
expert evidence 29 to provide the Court with the relevant information in
assisting the Court to conduct the proportionality assessment. The
evidence presented to the Court included expert evidence which was not
available at the time when the CEIC made the PFCR30. Therefore, the
Court is equally, if not better, placed to make the subject decision. Having
considered all evidence adduced, there is no conceivable difficulty for the
Court to fully appreciate the alleged unprecedented situation at the time of
enactment of the PFCR and the ramifications (if any) on public order,
which is within the “expertise and experience”31 of the Court.

19. Having regard to the constitutional duty and institutional capacity of the
Court, as well as the identity of the decision maker, the Applicants submit
that the standard of “wide margin of discretion” is not applicable to the
present case. The right in question is a fundamental one, namely freedom
of expression and assembly and important not only for society but each
individual. The nature of the activities concerned does not involve the
balancing exercise and allocation of scarce public resources or
financial/economic/social policies or political issues that are more
appropriate to be resolved by the democratic process, which is what this
factor of institutional capacity is primarily about. 32

20. The Applicants’ position is also supported by case authorities. The CFA
and the English courts have consistently applied the standard of “no more

29
Namely: (i) Affirmation of Cheung Tin Lok [B/XX]; (ii) Affidavit of Chui Shih Yen, Joceline
[B/XX]; (iii) Affidavit of Tsui Pui Wang Ephraem [B/XX]; and (iv) the Second Affidavit of Chui
Shih Yen, Joceline. [B/XX]
30
See Affidavit of Tsui Pui Wang Ephraem, §5 [B/XX] (“I was first approached by the Department
of Justice on 16 October 2019”)
31
Fok Chun Wa (supra.) at §81
32
Hysan (supra.), §§89-96

16
 than reasonably necessary” in the context of restrictions to right of peaceful
assemblies / processions:-

(1) In Leung Kwok Hung v HKSAR (supra.) at §93, the CFA applied
the standard of “no more than is necessary” in the proportionality
analysis balancing the need of public order and the freedom of
assembly.

(2) In HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425

at §§39, 113-114 and 116, the CFA applied the stand of “no more
than reasonably necessary” in the proportionality analysis balancing
public order (ordre public), the rights of others with the right to
demonstrate in LegCo Chamber.

(3) In Tabernacle v The Secretary of State for Defence [2009] EWCA

Civ 23 at §§39 and 50, the English Court of Appeal roundly rejected
the UK Government submissions that it enjoyed a wide margin of
discretion on restrictions concerning the “manner and form” of
meetings and gatherings.

21. The Respondents have endeavoured (but struggle) to distinguish the

present case from other cases involving public order matters by (i) alleging
it went beyond maintenance of law and order but concerned restoration of
public security 33 ; and (ii) relying on the alleged urgent and temporary
nature of the measure 34. These arguments are misconceived:-

(1) In relation to the first argument, the phrases of “maintenance of law

and order” and “restoration of public security” are descriptions of
the same matter by different labels. Ultimately, the present issue is

33
Respondents’ Case, §§6-8.
34
Respondents’ Case, §§9-10.

17
 concerned with public order only – this is implicitly accepted by the
Respondents 35. Once the Court is armed with the evidence provided
by the Respondents, it is not institutionally disadvantaged in making
the proportionality assessment.

(2) As to the alleged temporary nature of the PFCR, there are two points
in reply. First, as a matter of fact, the PFCR is by no means
“temporary”. It is factually incontrovertible that this alleged
“temporary measure” has been in force for more than one year
despite the outbreak of COVID-19 pandemic which necessitates the
wearing of facial covering and the CE’s own speech on 30
September 2020 that the National Security Law restored stability.
Second and in any event, while a temporary duration may be a
relevant factor in considering whether a measure is “no more than
necessary” it is difficult to see why it is relevant to the determination
of the standard of scrutiny. So long as the PFCR remains in force,
the restrictions imposed by s.3(1) of the PFCR on the rights and
freedoms of expression and assembly remain substantial and impacts
every single person in Hong Kong. There is no logical reason why
the Court should adopt a lower standard merely because a drastic
measure is supposed or intended to last for a short time as the activity
in question remains the same. In addition, falling short of a
declaration of the existence of public emergency which permits
derogation from the BOR pursuant to s.5 of the HKBORO, measures
which restrict fundamental rights should be subject to the same
degree of scrutiny however urgent or temporary they may be. In the
premises, the Court should not take into account the alleged

35
Respondents’ Case, §7, in which the Respondents only made reference to the “underlying
implications and ramifications of public security and order”.

18
 “temporary” nature of the PFCR in determining the appropriate
standard of scrutiny.

22. The Respondents further sought to justify s.3(1)(c) and (d) of the PFCR as
preventive measures, that is, measures taken before there is any outbreak
of disorder. However, s.3(1)(c) and (d) of the PFCR do not require even a
reasonable suspicion or assessment that the peaceful assembly would be
anything but peaceful. The restriction is sweeping in nature, as it is
imposed on all occasions even when there is not a remote risk of outbreak
of disorder. As set out above this amounts to a pre-emptive measure on the
manner and form of lawful public meetings and processions, when the law
already provides sufficient criminal sanction and censure for unlawful
ones. The courts should be more vigilant in scrutinizing measures that are
allegedly purely of a preventive or speculative nature and which impose
criminal liability.

23. Finally, the Respondents in advancing their arguments conflated the

question of the appropriate standard of scrutiny and the actual assessment
of proportionality. While some matters are relevant to the actual
assessment, they would not be relevant to the determination of the
appropriate standard. In this connection, the Respondents erroneously
accused the CA of failing to give weight to the “conflicting societal interest
of law-abiding residents” on the question of standard of scrutiny 36. The
so-called conflicting societal interests is no more than the public interest of
public order, which the court has fully considered. It is no different from
the court balancing the right of the demonstrators to demonstrate in public
and the right of other road users to use the public roads: see, for example,
Yeung May Wan v HKSAR (2005) 8 HKCFAR 137. This question is not

36
Respondent’s Case, §12

19
 relevant to any of the three considerations laid down by this Court in Kwok
Cheuk Kin (supra.), and therefore should only be relevant to the
application of the proportionality test if at all.

B3. Answer to Question 3

24. The Applicants’ answer to Question 3 is “No”. The CA did not err in
adopting the standard of “no more than [reasonably] necessary”, being the
appropriate standard of scrutiny, in assessing the proportionality of s.3(1)
of the PFCR.

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C. QUESTIONS 1, 2 AND 4: S.3(1)(c) AND (d) OF THE PFCR
UNCONSTITUTIONAL

25. S.3(1)(c) and (d), together with s.3(2), of the PFCR, make it an offence for
anyone to use any form of full or partial facial covering at a public meeting
or public procession. They create restrictions on the right to privacy and
the freedoms of expression and peaceful assembly as protected by HKBL
27 and BOR 14, 16 and 17.

26. For the reasons submitted below37, the Applicants submit that s.3(1)(c) and
(d) of the PFCR are unconstitutional.

C1. Trite Principles Restated

27. At this juncture, it is worth restating some trite principles which are
relevant for the assessment of proportionality of the restrictions of the
freedom of peaceful assembly.

28. First, for freedoms of expression and peaceful assembly which are of
cardinal importance, “the courts must give such a fundamental right a
generous interpretation so as to give individuals its full measure” and
“restrictions on such a fundamental right must be narrowly interpreted” 38.

29. Second, there is a line to be drawn between “peaceful demonstrations” and

demonstration involving “violence or the threat of violence – somewhat
archaically referred to as a “breach of the peace”. For the former type of
assemblies, full rein is given to freedom of expression: HKSAR v Chow
Nok Hang and Another (2013) 16 HKCFAR 837 at §§38-39.

37
In addition to the Applicants’ Case on Questions 4 and 4A of FACV 6&7/2020.
38
Leung Kwok Hung (supra.), §16.

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30. Third, an individual does not cease to enjoy the right to freedom of
peaceful assembly as a result of sporadic violence or other punishable acts
committed by others in the course of an assembly / procession if the
individual in question remains peaceful in his or her own intention or
behaviour. Furthermore, the possibility of persons with violent intentions,
not members of the organising association, joining the assembly or
procession cannot take away that right: Kudrevicius and Others v
Lithuania (2016) 62 EHRR 34 at §94.

C2. Proportionality of S.3(1)(c) and (d) of PFCR

31. In assessing the proportionality of s.3(1)(c) and (d) of the PFCR, one
should not lose sight of the facts that prior to the coming into force of the
PFCR, both the participation in a public meeting and/or public
procession as defined in the POO, and the wearing of facial coverings in
such meetings or procession were not only perfectly lawful but also the
manifestation of the freedoms of expression and peaceful assembly. As
submitted in §11(1) above, the wearing of facial coverings may simply be
part of the expressive element of a peaceful assembly and/or worn to
protect the peaceful protester against reprisals by those with opposing
views.

32. The unduly wide restrictions created by s.3(1) of the PFCR were
extensively canvassed in the Applicants’ Case in FACV 6&7/2020, in
particular the submissions on Question 4 (§§171-185) as well as Question
4A (§§187-194) in the context of unauthorized assembly (s.3(1)(b) of the
PFCR). The submissions therein, specifically those in §191 apply mutatis
mutandis to the proportionality assessment of s.3(1)(c) and (d) of the PFCR.

33. In fact, the added vice of s.3(1)(c) and (d) of the PFCR lies in the
imposition of a near-blanket prohibition of the wearing of the facial

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 coverings in assemblies and/or processions which by definition are orderly
and peaceful39. Bearing in mind that there is a line to be drawn between
peaceful assemblies / processions and those that involving violence, and
that an individual does not cease to enjoy the right to freedom of peaceful
assembly as a result of sporadic violence or other punishable acts
committed by others, any restrictions on the freedom of freedom of
assembly requires even more cogent justification. The fact that identical
restrictions are imposed on both unlawful assemblies and lawful and
peaceful meetings and processions calls for close scrutiny.

34. The Respondents’ justifications of s.3(1)(c) and (d) of the PFCR essentially
boil down to two grounds: (i) the restrictions amount to pre-emptive and
preventive measures to avert or minimise known risk of outbreaks of
violence 40; (ii) the restrictions facilitate identification of perpetrators of
violence41. Neither ground justifies restrictions of the freedom of peaceful
assembly in the present case.

35. In response to the Respondents’ arguments on “pre-emptive and preventive

measures”:-

(1) Lest the significance of the so-called “pre-emptive and preventive”

measures be exaggerated. First, as a matter of evidence adduced by
the Respondents, between June and October, about 70% of all
authorised public meetings were conducted peacefully42. Second,
s.3(1)(c) and (d) of the PFCR did not provide for any mechanism for
a case-by-case assessment of the risk of any specific gathering
developing or turning into a violent one. The Respondents

39
See also SAS v France (2015) 60 EHRR 11 at §139; Yaker v France, Communication No
2747/2016 (17 July 2018) at §§8.7 and 8.8.
40
Respondents’ Case, §§16(3)-(5), 19(9), 20-22, 23(12)
41
Respondents’ Case, §§16(6), 17-18, 19(1), 23(11) and (13)
42
Affirmation of Cheung Tin Lok, §4 [B/XX]

23
 erroneously classified the prohibition of facial covering as “pre-
emptive and preventive measures to avert or minimise the known
risk of outbreaks of violence”.43 Third, if any violence breaks out
in a peaceful assembly or procession, such assembly or procession
will turn into an unlawful assembly and the wearing of facial
coverings by those participants will be caught by s.3(1)(a) of the
PFCR. The law enforcement agents would then be equipped with
the necessary powers under POO as well as s.3(1)(a) of the PFCR
for maintenance of public security and order to make the arrest.

(2) Further, the restrictions imposed by s.3 of PFCR are clearly more
than necessary as purported “pre-emptive and preventive measures”.
The definition of “facial covering” is not confined to a mask, let
alone any particular kind of mask, but includes any article of any
kind (including paint) that covers all or part of a person’s face; thus
a surgical mask typical for health purpose and even the wearing of
sunglasses or a hat could amount to a breach of s.3(1) of the PFCR.
In other words, the PFCR does not specifically target the protestors
applying the so-called “black bloc” tactics and/or emboldened by
such tactics. In addition, the ban of facial covering is total and
indiscriminate, without any requirement of demonstrating a
reasonable suspicion of a threat or an outbreak of violence and
provides plenty of rooms for arbitrary and discriminatory
enforcement of the law.

36. In reply to Respondents’ contention that the restrictions facilitate

identification of perpetrators of violence:-

43
Respondents’ Case, §16(5).

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 (1) This argument goes completely against the long line of established
authorities that an individual does not cease to enjoy the right to
freedom of peaceful assembly as a result of sporadic violence or
other punishable acts committed by others. There are absolutely no
reasons why a participant of a peaceful and lawful meeting or
procession without any violent intent whatsoever should be subject
to restrictions on not only the manner or form of the meeting or
procession but also the expressive element of such assembly. The
restriction is general and indiscriminate. It applies to any peaceful
assemblies that are held for a wide variety of causes. There are
many legitimate reasons for a participant to wear facial coverings in
peaceful assemblies, such as a legitimate fear of reprisal, as the CFI
recognized: “Many assemblies, meetings or processions for
different causes, such as LGBT, labour or migrant rights, take place
in different parts of Hong Kong throughout the year, and
traditionally these gatherings have been orderly and peaceful. It
cannot be disputed that participants in such gatherings may have
perfectly legitimate reasons for not wishing to be identified, or seen
to be supporting such causes.”44 There is also a marked change in
public attitude since the outbreak of the epidemic which the Court
could take judicial notice, namely that most people are now used to
wearing a mask in a crowded situation for their own protection. It is
almost part of our social life now to wear a mask in public places
irrespective of whether it is legally required or not. The public health
concern alone, which is likely to be a continuing global concern at
least for some time, tilts the balance completely.

44
CFI Judgment, §155 [A/1/83]

25
 (2) The Respondents’ argument also failed to explain how the very
extensive encroachment on fundamental rights in s.3(1)(c) and (d)
of the PFCR is necessary to achieve such an aim even when there is
not even any sign of any unlawful behaviour or any indication of
violence in the public meeting or procession. The Respondents
failed to recognise that peaceful assemblies, even on their own
evidence, took place between June and September 2019.

(3) In the premises, the Respondents erroneously gave undue weight to

the alleged difficulty faced by the law enforcement agents (who have
every other power under the POO and s.3(1)(a) of the PFCR), but
ignored the exercise of the right and freedom of the peaceful
assembly by law-abiding participants in conducting the
proportionality assessment. They failed to strike a fair balance
between the societal benefits pursued by the restrictions and the
inroads made to the rights of the individuals

37. Finally, the repeated emphasis of the alleged “adverse effect on the exercise
of the freedoms and rights by those other law-abiding residents in Hong
Kong who shun or abhor or are fearful of violence”45 is no more than a red
herring. As noted above, it is no more than part of the public interest that
the courts below have carefully and fully considered. It does not detract
from the fact that law-abiding residents attending peaceful meetings or
processions are deprived of the full exercise and enjoyment of their
freedoms without fear of reprisal, and the right to remain anonymous. The
Respondents completely omitted in their assessment the other side of the
balance, where law abiding residents are deterred from attending
lawful and peaceful assemblies for fear of reprisal if they are identified

45
Respondents’ Case, §23(12)

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 whilst participating in a lawful public assemblies or processions, where
they are unable to express their free speech by symbolic dress that may
cover in part or whole of their face, or in the post-COVID 19 reality
for want of protecting themselves from being infected by infectious
diseases or epidemic.

38. Taking all matters into account, the Applicants submit that s.3(1)(c) and (d)
of the PFCR restrict the freedom of expression and the right of peaceful
assembly in a disproportionate manner.

C3. Answer to Questions 1, 2 and 4

39. For reasons above, the Applicants’ answer to Questions 1, 2 and 4 is also
“No”. S.3(1)(c) and (d) of the PFCR impose disproportionate restrictions
on the freedom of expression and peaceful assembly and the right to
privacy and are thus unconstitutional.

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D. CONCLUSION

40. The Court is respectfully invited to dismiss the Respondents’ appeal with
costs.

Dated this 16th day of October 2020

GLADYS LI, S.C.

JOHANNES CHAN, S.C.

EARL DENG

JEFFREY TAM

GEOFFREY YEUNG

ALLISON WONG

Counsel for the Applicants

HO TSE WAI & PARTNERS

Solicitors for the Applicants

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