HKSAR v Chow Hang Tung (鄒幸彤) (2024) 27 HKCFAR 71, [2024] HKCFA 2

Robert Pang SC and Chris Ng represented the appellant (respondent) in HKSAR v Chow Hang Tung (鄒幸彤) (2024) 27 HKCFAR 71, [2024] HKCFA 2.

D was convicted after trial of inciting others to knowingly take part in an unauthorised assembly, contrary to the common law and s.17A(3)(a) of the Public Order Ordinance (Cap.245) (the POO), in relation to a proposed meeting at Victoria Park on 4 June 2021 (the Meeting) to commemorate the 32nd anniversary of the 4 June 1989 Tiananmen Square incident. She was sentenced to 15 months’ imprisonment. The Magistrate found D guilty on the basis of the following facts. On 27 April 2021, the police were notified by a named member of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (the Alliance), of which D was Vice Chairman, of its intention to hold the Meeting pursuant to the notification regime for organising public meetings in s.7 of the POO. On 27 May 2021, the Commissioner of Police (the Commissioner) notified the Alliance that the Meeting was prohibited (the Prohibition) pursuant to s.9(1) of the POO in view of the necessity of maintaining public safety, public order, and protecting the rights and freedoms of others, taking into account the prevailing COVID-19 pandemic. The Alliance and the relevant organisers, which did not include D, unsuccessfully lodged an appeal under s.16 of the POO against the Prohibition with the Appeal Board on Public Meetings and Processions (the Appeal Board). No judicial review was sought against the Prohibition or the Appeal Board’s decision. Despite this, D published social media posts and a newspaper article which were found to have incited others to attend the Meeting, which by virtue of the Prohibition was an unauthorised assembly. The Magistrate rejected D’s defence that she was entitled to challenge the validity of the Prohibition, deciding that such challenge should have been dealt with by way of judicial review. On appeal to the Court of First Instance, the Judge held that the Magistrate had thereby erred and the prosecution had failed to establish that the Prohibition was legal; quashing D’s conviction. At issue in the present appeal by the prosecution were two certified points of law: (i) whether in a prosecution of such offence, it was open to a defendant to raise as a defence the legality of a prohibition on a public meeting, which had been subsequently upheld by the Appeal Board (Question 1); and (ii) if so, what the correct approach of the court should be in considering such a defence (Question 2).

Held, unanimously allowing the appeal, restoring D’s conviction and remitting the appeal against sentence to the Judge for determination, that:

(Per Ribeiro PJ, Fok PJ and Gleeson NPJ agreeing)

Question 1: whether D could challenge the legality of the Prohibition by way of defence

• (1) A distinction had to be made between a defendant in criminal proceedings mounting: (i) a collateral attack on non-constitutional grounds (eg arguing that a prohibition was unlawful as certain statutory requirements had not been complied with, the decision was ultra vires, arrived at in a procedurally unfair way, or was Wednesbury unreasonable); and (ii) a constitutional challenge (eg arguing that a prohibition unlawfully restricted a guaranteed constitutional right, or the offence itself was unconstitutional). Whether the former was available as a defence depended on the construction of the applicable statutory provisions, there being a strong presumption in favour of its availability. By contrast, a defendant could not be precluded from raising a constitutional challenge simply on the basis of statutory construction, as constitutional rights were entrenched by the Basic Law and any inconsistent statutory provisions or administrative orders had to give way, unless the restrictions passed the proportionality test. However, both types of challenges had to be directed at an essential element of the offence in question to constitute a valid defence (R v Wicks [1998] AC 92, Boddington v British Transport Police [1999] 2 AC 143, Secretary for Justice v Ocean Technology Ltd [2009] 1 HKC 271 applied). (See paras.93, 132-156, 192-195, 197.)
• (2) The position was different where a defendant mounting a collateral attack on non-constitutional grounds was the very person against whom the impugned administrative order was specifically directed, as intended by the statute pursuant to which the order was made. In such a “same person” case, the defendant would generally be precluded from mounting the attack by way of defence in a criminal case, as a matter of statutory construction (R v Wicks [1998] AC 92, Boddington v British Transport Police [1999] 2 AC 143, HKSAR v Incorporated Owners of No 10 Bonham Strand (HCMA 239/2004, [2004] HKEC 675), HKSAR v Sky Wide Development Ltd [2013] 1 HKLRD 613 considered). (See paras.122-130, 191.)
• (3) The Magistrate had erred in barring D from challenging the validity of the Prohibition. This was because the decision process giving rise to the Prohibition was completely separate and distinct from the criminal proceedings, and the two processes should not be elided. It confused the two processes to suggest that the Commissioner’s successful defence of the Prohibition before the Appeal Board and/or on a possible judicial review (to which D was not a party), removed any basis for D to raise a challenge by way of defence in her own criminal trial (to which the Commissioner and the Appeal Board were not parties). Further, although the Alliance and the named organiser had been served with notice of the Prohibition, the order was directed at the general public, in accordance with the statutory purposes of the POO. The “same person” exception was therefore inapplicable and did not preclude D from raising a collateral attack. (See paras.95-121, 131.)
• (4) It was open to D to raise in the alternative a collateral attack and a constitutional challenge as a defence. This was because it was an essential element of the offence that the Prohibition was lawful. Further, in relation to the availability of a collateral attack, it was not the legislative intent that a formally valid prohibition would be sufficient for criminal liability for the offence. This was founded on construing the offence-creating provisions in light of Pt.III of the POO, and the clear intent that the POO should operate consistently with the constitutional right of peaceful assembly under the Basic Law and Hong Kong Bill of Rights (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 considered). (See paras.158-167, 198-199.)

• (5) D’s collateral attack, based upon the Commissioner’s non-compliance with s.9(4) of the POO in prohibiting the Meeting, failed upon a proper construction of the section. Contrary to the position held by D and the Judge, the Commissioner was not under any positive duty to proactively devise and propose conditions but merely required the Commissioner to consider whether the specified interests could be met by appropriate conditions; there were no conditions that should obviously have been taken into account as a possible basis for allowing the Meeting to be held; and the Commissioner and Appeal Board had in fact considered possible conditions that might be imposed. (See paras.168-171, 200.)
• (6) D’s constitutional challenge that the Prohibition disproportionately restricted her right to peaceful assembly under art.27 of the Basic Law and art.17 of the Hong Kong Bill of Rights also failed. The Prohibition pursued the legitimate aim of protecting public health; was rationally connected to that aim; was a proportionate and legitimate measure; and struck a reasonable balance between restricting the right of peaceful assembly and the societal benefits of the Prohibition (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 applied). (See paras.172-181, 201.)
• (7) In the present case, the prosecution bore the legal burden of proving the validity of the Prohibition as an essential element of the offence (Boddington v British Transport Police [1999] 2 AC 143 distinguished). (See paras.182-189, 202.)
• (8) Accordingly, D had been correctly convicted by the Magistrate and her conviction should be restored. (See para.90.)

(Per Cheung CJ, Lam PJ agreeing)

Question 1: whether D could challenge the legality of the Prohibition by way of defence

• (9) Whether an administrative act could be subject to a collateral challenge in criminal proceedings, based on non-constitutional or constitutional grounds, depended on whether they were relevant to the constituent elements of the offence or an applicable defence, which turned on the statutory construction of the relevant legislation. A constitutional challenge against the offence-creating provision was a different matter, but there was no such challenge here (R v Wicks [1998] AC 92, Boddington v British Transport Police [1999] 2 AC 143, Secretary for Justice v Ocean Technology Ltd [2009] 1 HKC 271 applied). (See paras.20-38.)
• (10) In a prosecution under s.17A(3)(a) of the POO or for incitement of such offence, it was sufficient for the prosecution to prove the formal validity of the prohibition notice (ie the notice complied with the requirements under s.9 and had not been reversed by the Appeal Board on appeal or quashed by judicial review). As such, D was not entitled to mount her collateral challenge. This was in view of the language used including that the determination of the Appeal Board was “final”, construed in light of the purpose and context of the POO, and strong emphasis on time for giving notification of an intended meeting, a prohibition and an appeal, which indicated a statutory intent of providing certainty as to the legality of a proposed public meeting. The concerns which were addressed and were well balanced by the POO included protecting the interests of national security, public safety, public order and the rights and freedoms of others; upholding the rights to freedom of assembly, expression and demonstration; effective enforcement of a prohibition; and upholding the rule of law by providing a means to challenge a prohibition (HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191 applied). (See paras.39-86.)

• (11) It was unnecessary to answer Question 2 in view of the negative answer to Question 1. D’s conviction should be restored. (See paras.87, 89.)