THE UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW

LLB CONSTITUTIONAL LAW (2024-2025)

TUTORIAL FIVE

Please read the materials on “Right to freedom of expression and assembly” and “Right to
equality” in preparation of this tutorial.

Question 1

In deciding whether a governmental rule is “prescribed by law”, the CA in Chee Fei Ming
adopted a “holistic approach”. What is this “holistic approach”? Is it consistent with Leung
Kwok Hung (2005)?

Chee Fei Ming:

- Xs and other fellow Falun Gong (FLG) practitioners had been staging “static demonstrations”
at various public locations, gathering in front of banners, placards or billboards, did not apply
for written application from the Director of Food and Environmental Hygiene

- X challenged that such requirement does not comply with ‘prescribed by law’ requirement
and the proportionality test

When examining “the law”, the Court would adopt a holistic approach taking into account not only
the statutory provision itself, but also the common law in assessing whether the foreseeability
requirement under the “prescribed by law” requirement was satisfied, as well as published public
policy and guidelines which delineated the boundaries of the administrative discretion; and
examining how the law was administered, including the effectiveness of judicial supervision through
judicial review [37]-[50] => to bring certainty and foreseeability

Leung Kwok Hung:

- D1 was convicted of holding an unauthorised assembly and D2-3 of assisting in the holding
of that unauthorised assembly
- Restriction: statutory scheme (notifying police and that police had a discretion to object to the
procession) for regulating public processions was contrary to the right to freedom of assembly
in art 27 of BL; art 21 of the ICCPR
- Held: the statutory notification requirement was constitutional and was in fact widespread in
jurisdictions around the world (pp.249F-250I, 261D-E) Term “ordre public” too imprecise to
be prescribed by law but narrower concept of “public order” in law and order sense is precise
enough

- Prescribed by law requirement mandated legal certainty: a law which conferred discretionary
powers on public officials, the exercise of which might interfere with fundamental rights must
give an adequate indication of the scope of the discretion (the court will scrutinize restrictions
 on the fundamental right as the court will guard against the encroachment to any
constitutional rights, eg any discretionary power that might endanger any right)
- [26]: foreseeability requirement considered
- Inconsistent: did not consider the published public policy and guidelines which delineated the
boundaries of discretion of police of objecting to the procession (dissenting: sorts of
conditions could be imposed have to be specified )

Necessity requirement
- Public ordre was not defined clearly (so struck down): essential to distinguish ordre public at
the constitutional level (can be imprecise) and the statutory level (can be precise)
- appropriate remedy was the severance of public order (sufficiently certain, from ordre public)
=> satisfied the prescribed by law requirement
- minority and majority difference reason: value judgment
- Bokhary: discretion is too wide
- Delusion of the requirement of POO, if can’t pass the test then not ok by only reading the
statutes, Chee Fei Ming: should look at every source of law, if there are sources that can
delineate the scope of discretion (that makes the statute less arbitrary), the law is
constitutional (a looser test in Chee Fei Ming than LKH? Counter-argument: the same thing
as the practical result is the same)
- If more weary of the executive branch, wear weight more on that side and adopt the stricter
test in LKH
Question 2

Consider these hypothetical facts. Last month, the Hong Kong Legislative Council decided to
enact a Counter Foreign Interference Ordinance (CFIO) to plug loopholes in the existing
HKSAR National Security Law and Safeguarding National Security Ordinance. Some of the
key provisions of the CFIO are as follows:

Counter Foreign Interference Ordinance

16.— (1) A Hong Kong Permanent Resident (X) commits an offence if —
(a) X undertakes electronic communications activity that involves publishing
information in Hong Kong;
(b) X undertakes the electronic communications activity on behalf of —
(i) a foreign principal; or
(ii) another person acting on behalf of a foreign principal;
and
(c) X intends that the electronic communications activity, or the information
published in Hong Kong, will influence another person to undertake activity,
or engage in conduct, in Hong Kong that —
(i) is or is likely to be prejudicial to public health, public safety, public
tranquillity or public finances; or
(ii) diminishes or is likely to diminish public confidence in the
performance of any duty or function of, or in the exercise of any power
by, the Government or a public authority, or a part of the Government
or public authority.
(2) A person who is guilty of an offence under subsection (1) shall be liable on
conviction to a fine not exceeding $1 million dollars or to imprisonment for a
term not exceeding 14 years or to both.
(3) For the purpose of subsection (1), “foreign principal” means
 (a) a foreigner;
(b) a foreign government;
(c) a foreign government-related individual;
(d) a foreign legislature;
(e) a foreign political organisation;
(f) a foreign public enterprise; or
(g) a foreign business.

Alice is a Hong Kong Permanent Resident. She runs a Non-Governmental Organisation

(NGO) that advocates for labour rights in Hong Kong, and the NGO receives foreign funding.
Alice is deeply concerned that the operations of her NGO will be affected by Section 16 of
CFIO. Alice believes that her constitutional right to free expression has been violated. She
also believes that the law is discriminatory as it only targets Hong Kong Permanent
Residents. She has since brought a judicial review action to challenge the CFIO.

The Court of First Instance (CFI) decided the case against Alice. It ruled that (1) Section 16
of the CFIO satisfies the “prescribed by law” requirement; (2) Section 16 of the CFIO is a
proportionate restriction of Alice’s right to free expression; and (3) Section 16 of the CFIO is
a justified restriction of her constitutional right to equality and there is no unlawful
discrimination against Hong Kong Permanent Residents.

Alice wants to appeal against the above three rulings by the CFI. Advise her.

Prescribed by law requirement

- Imprecise boundaries of discretion

o On behalf of: does borrowing an idea from a foreign business to post on
internet or posting information as an employee of a foreign company
counts to be on behalf of ( quite clear from the context)
o “influence another person”: may not just include criminal concepts of
abetting someone (broader than aiding, abetting, incitement) (wrote an
article & someone read it tgt with other articles & synchronizes the
ideas 🡪 is that still influence)
o “prejudicial”: weaker term than harm (threshold – how prejudicial) – any
term that compromises; public tranquility & public finances very vague
– even if limited to finances by the gov, does that mean advocacy for
any policy with resource implications would be caught as it would put
pressure on public finances; anything that causes slightest disharmony
can be public tranquillity & fall under the provision (asking ppl to sell
property / their stocks // not telling a good HK story // saying
administration of justice in HK is not healthy // RoL in HK not strong –
will all of it be caught) (foreign agents spreading bad news about the
gov)
o. prejudicial: in public health: does idea from the foreign countries (eg.
Wearing mask/ locking down in pandemic is not good) against
government’s policy counted as prejudicial
o in Alice’s context: if NGO was supporting the idea of striking to fight for
labour rights, does that count as prejudicial to public tranquillity
 o diminish public confidence in the government: does criticizing the
performance of the government count (how to measure public
confidence)
o public tranquility: subjective as well

- Holistic approach (Chee Fei Ming): the statutory provision itself, but also the common law in
assessing whether the foreseeability requirement under the “prescribed by law” requirement
was satisfied, as well as published public policy and guidelines which delineates the
boundaries of discretion=> likely to look at published public policy to look at the boundaries
of discretion in the vague wordings (take that as a caveat: when there are some docs or
sources (eg sub regulations, common law definitions of the unclear words) that can delineate
the power of discretion, likely to be prescribed by law)

Proportionality restriction to right to free expression

- Legitimate aim: protecting national security: may undermine the public confidence, CFIO
may prevent interference by the foreign powers on HK business (must with elaboration)
(Hysan: national security or BORO)
- Rationally connected to legitimate aim: reasonable to forbid people to post ideas from foreign
countries that will harm national interest/ interfering with HK business
- No more than necessary vs manifestly without reasonable foundation: depends on (1)
significance of right and extent of interference with the right and (2) the measure’s content
and features (Identity and constitutional role of decision-maker –Special competence of
decision-maker)
- Freedom of expression significant, listed in BL 27; CFIO’s interference of such right maybe
serious as the word prejudicial did not specify the extent of prejudice/ influence and the scope
of “public” matters in section c; if the scope is too large and even those who post info with
small extent of influence on others/ prejudice on such public matters are counted, there is
significant interference with freedom of expression => use no more than reasonably necessary
standard
- Court may have the institutional competence to decide on such matters given the current
circumstances do not entirely deal with national security: labour rights=> can assess from a
logical approach => use no more than reasonably necessary standard (better use manifestly
without reasonable foundation but actually both answers are ok: using Hysan, the factors are
right here but note what the law is)
No more than necessary:
- banning posting ideas that are merely prejudicial maybe more than necessary (as it is very
subjective and not clear-cut): may possibly ban more ideas than necessary posted by a foreign
company;
- banning info by commercial enterprises may be more than necessary: eg in pandemic, doing
business in HK is not profitable because of its lockdown=> intend to influence someone to
oppose the government lockdown’s policy? (engage in conduct prejudicial to public health)
- f and g more commercially related=> more likely to be more than necessary

4th limb: striking a fair balance “between the demands of the general interest of the
community and the requirements of the protection of the individual’s fundamental rights
 - protection of fundamental rights extremely important, the current system harms freedom of
expression
- general interest of the community (political stability): already have NSL, SNSO, only slight
benefit in general interest but huge harm in freedom of expression (analyzed above)

Restriction of right to equality (no unlawful discrimination)

Framework on slide 20
- rights definition stage: HK permanent residents (who posted info that might influence
someone to engage in prejudicial conduct) treated differently from someone who is not a
permanent resident
- comparable? Both having the same conduct that might lead to the same outcome (harm
national interest/ interfere HK political system)
- not comparable: ▪ Gov may argue want to limit bc permanent residents have right to vote &
stand for election, have access to campaigns (more access to electoral forums), may have
stronger views & have more passionate offence narrowly tailored in that sense (No more than
necessary)
- rebuttal: right to vote after LegCo election reform is very limited, people does not have such a
high tendency to express a strong view after implementation of NSL, most of the national
security cases were before the implementation of NSL=> comparable
- differential treatment on the ground of silencing politically incorrect speech=> prohibited
ground

Rights limitation stage:

- legitimate aim: aim to deter HK permanent residents so that they will not to harm national
interest/ be used by foreign powers to interfere with HK internal affairs (PR may have more
responsibility and political influence than non-PR)
- provisions in CFIO rationally connected
- Fok Chun Wa: where fundamental concepts/core values are not at stake - eg where
differentiation is based on wealth, occupation, ability and residency and mere question of
socio-econ policy involved courts apply justification test with lower intensity, more
deference, will not interfere with line drawn by govt unless line is manifestly without
reasonable foundation (note the facts here: Fok Chun Wa about economic resources but
not in this case)
- National security vs rights: if national security=> manifestly without reasonable foundation,
like the above
- Current category seems to fall under this category
- The policy has reasonable foundation as it is relevant to preventing HK permanent residents
so that they will not be used by foreign powers to interfere with HK internal affairs (not to
prejudice public affairs)???
- 4th limb: general interest: preventing HK permanent residents to be ‘used’ by foreign powers
to affect national interest is significant compared to right to equality (not serious infringement
to right to equality here as well, as it does not deal with fundamental core values like race,
gender and sexual orientation)=> fair balance

Question 3
What was the “core rights and obligations” approach that the CA in QT adopted? Why did
the CFA reject this approach? Is this core rights approach the same as the core rights
approach that the CFA in Sham Tsz Kit endorsed?

QT:
- UK national who had entered into a same-sex civil partnership in England
- SS was granted an employment visa to HK but Director of Immigration refused to grant QT a
dependent visa on the ground that QT was “outside the existing policy”

CA: certain core rights and obligations (e.g. divorce, adoption, inheritance) are so unique to marriage
that their denial to same sex partners requires no justification, i.e. differences in position between

married and unmarried are self-obvious that Policy needs no justification

Appealed question in CA:

Given status of marriage carries “core rights and obligations”, which are not open to all other
persons including unmarried same-sex couples who cannot get married under Hong Kong law, and
any differential treatment based on marital status in the context of such core rights and obligations
requires no justification, whether immigration falls within these core rights and obligations
(Approach: if not fall under core rights and obligation, require justification for differential
treatment)
- Core rights and obligation should be considered treatments that require no justification
because the difference in position between the married and unmarried is self- obvious

CFA:

- “It is hardly satisfactory to answer the question: ‘Why am I treated less favourably than a
married person?’ by saying: “Because that person is married and you are not.” (QT [42], [66])

- Such approach should not be followed: such approach gave rise to a subjective, fruitless
debate as to what did or did not fall within core; what seem obvious to some may not seem
obvious to others
- Real question was: why should that benefit be reserved uniquely for married couples? Was
there a fair and rational reason for drawing that distinction? [62-67]

Sham Tsz Kit: (Facts) will be authority for why protection of tradition of marriage is not a
legitimate aim?
- The appellant, a homosexual Hong Kong permanent resident, married his same-sex partner,
who was also a Hong Kong permanent resident, outside Hong Kong in New York
- Their marriage was not legally recognized in Hong Kong. The appellant applied for judicial
review, contending that the non-recognition of same-sex marriage under Hong Kong law
effectively deprived homosexual married couples of the legal protection that should follow
from their marital status, including but not limited to taxation and inheritance.
- Appealed question:
1. Whether exclusion of same-sex couples from the institution of marriage constitutes a
violation of right to equality
 2. Whether the laws of Hong Kong (including the Marriage Ordinance (Cap 181)) constitute a
violation of the right to equality and right to privacy as they do not allow same-sex couples
to marry and fail to provide any alternative means of legal recognition of same-sex
partnerships (such as civil unions or registered partnerships) (right to privacy ground
successful)
3. Whether the laws of Hong Kong, in so far as they do not recognize foreign same-sex
marriage, constitute a violation of the right to equality

Not the same core rights approach

Q1 and q3: not violation of right to equality

Lex specialis: a general provision (BL25 and BOR22) that might apply to any case must give
way to a specific provision (BOR19(2), BL37) dealing with the particular case=> obviates the
need to justify limit on the constitutional right (right to equality) because the specific right to
marry does not encompass the right to same-sex marriage, applicant cannot obtain the latter through
the back door of the more general right to equality, so no need to justify the difference in treatment
between same-sex couple and opposite sex couple

- Whilst the rights in BL25 and BOR22 were free-standing and independent rights, that alone
did not mean that they were not subject to the principle of lex specialis, which applied where
a specific law governed a particular subject matter and implicitly qualified reliance on a more
general provision that would otherwise apply.
- The principle of lex specialis did obviate the need to justify a difference in treatment arising
from the proper application of the particular provision (a general provision that might apply to
any case must give way to a specific provision dealing with the particular case), which was
BL37 in the present case. The established principle that constitutional rights were to be
generously interpreted by the courts was subject to the qualification that it could not lead to a
construction which the language of the instrument was not capable of bearing
- reason for the difference of treatment complained of by the appellant, (namely the non-
recognition of his same-sex marriage celebrated in NY, when an opposite-sex marriage
celebrated in NY would be recognised in HK), was not the result of a discriminatory
application of the conflict of laws rule. Rather, it was the application of the lex specialis in art
37 of the BL and BOR19(2) that precluded his NY same-sex marriage from being recognised
in HK

[9]: lex specialis: Article 37 only guarantees the right to different sex marriage, but not same-sex
marriage. As a matter of construction, a general provision on equality contained in the same
constitutional instrument cannot be understood as going beyond what is specifically provided for in
the bespoke provision on the constitutional right to marry.
Similar conclusions regarding art 19 of HKBOR
[76]: Art 37 of the BL only guarantees the right to heterosexual marriage in HK. No right to same-sex
marriage is constitutionally guaranteed.
[89]: when BL37 is read, together with BOR19(2),1 in its legal and historical context in April 1990, it
is clear that the constitutional freedom of marriage referred to is opposite-sex marriage only and not
same-sex marriage.
[107]: lex specialis=> read BL37 and BOR19(2), not permissible to interpret the equality rights in
BL25 and BOR22

1
The terms of which are identical to ICCPR23(2).
Appellant’s argument:
- that BL37 does not in terms restrict marriage to opposite-sex couples [109]=> failed for read
coherently with BOR 19(2)
[217]: Les specialis

Question 4

According to the CFA, do social views matter in the court’s determination of the rights of
sexual minority groups, and if so, how?

Social view matters

W v Registrar of Marriages (right of transsexual persons to marry in their post-operative gender)

 Transsexual woman denied right to marry male partner by Marriage Registry on ground that
HK law only recognises marriage between two persons who are born, respectively, man and
woman.

 Applicant argued: 1. Registry wrong in not reading “woman” under Marriage Ordinance as
including transsexual woman; alternatively, 2. if Marriage Ordinance denies right of
transsexuals to marry in their post-operative gender, the ordinance breaches their right to
marry under BL 37 and BOR 14/19(2).

 On 2: essence of right to marry denied. Generous approach to interpreting rights and seeing
BL as a living instrument:

 Social attitudes towards institution of marriage have changed. Marriage must be interpreted
in light of changing circumstances. Procreation no longer regarded by society as essence of
marriage.

 Court can rely on social attitudes to give a right a more generous interpretation, but cannot
rely on absence of societal consensus to deny claim to fundamental right [115]-[116]

 [170]: will consider social views only if there are strong and compelling reasons on the basis
of social views to depart from general law

 [170]: the court will give an updated interpretation to a constitutional provision based on
changing circumstances (including social views), but will not make a new policy on social
issue

Cannot rely on social majority view to reject minority’s claim (on fundamental rights)

Leung Chun Kwong (same sex marriage case arguing for medical, dental benefits and joint tax
assessment extended to spouse, held policy discriminatory) : prevailing views of the community on
marriage are irrelevant to consideration of the proportionality test as it was inimical to the principle
of fundamental rights to rely on the absence of a majority consensus as a reason for rejecting a
minority’s claim (cannot consider majority view to define minority rights)

The court was more reluctant to expand the marriage definition based on social views
When interpreting BL, should include social views:

CJ Cheung in dissent in Sham Tsz Kit: i Unless and until the court gives Article 37 a wider, more
liberal interpretation to cover same-sex marriage: interpretation of BL must move with the times
=> include social views (para 4 and footnote 4).

Does that mean if social views change further, court is willing to expand right to marry?