THE UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW

LLB CONSTITUTIONAL LAW (2022- 2023)

Term One

TUTORIAL FOUR

1. What is the constitutional status of the Bill of Rights Ordinance in Hong Kong? Is it
merely a statute? It has a constitutional effect because it’s entrenched before the
handover by letters patent and after the handover by BL39. See W v The Registrar of
Marriages ¶84 and Lam Siu Po v Commissioner of Police ¶15

2. What does “ICCPR…as applied to Hong Kong” in Article 39 of the Basic Law refer
to? What are the three possible views? What is Simon Young’s view?

BL39(1) as applied to HK: HKBORO containing the HKBOR has effected the
incorporation of ICCPR which provides for minimum standards for rights which are
internationally recognized.

Bahadur ¶25

Two restriction clauses: Prescribed by law and restrictions shall not contravene
ICCPR

1st approach: BL 39 as a general limitations clause that permits rights and freedoms to
be restricted once the condition in each of the two restriction clauses are satisfied:
rejected by CFA at Bahadur ¶29

2nd approach: BL 39 only restricts those BL rights that overlap with HKBOR rights
(see Bahadur ¶28). Overlapping rights can be restricted once the condition in each of
the two restriction clauses are satisfied, whilst rights exclusive to BL are subject to an
autonomous restriction analysis.

3rd approach: requires all express BL rights to be subject to an autonomous restriction

analysis, irrespective of whether there is a parallel right in the HKBOR. Under this
approach, the two restriction clauses act only as safety nets to ensure that the level of
rights protection does not fall below the standards in the ICCPR as applied to HK.

Simon Young criticized the judicial tendency to equate ICCPR as applied to HK to

BORO because BORO can be subject to ordinary legislative change. Rights stated in
BORO can be repealed in full or in part from time to time. If Legco repeal a
particular right in the BORO (e.g. freedom of expression), the BL 27 rights would
then become exclusive rights and are no longer subject to BL 39(2) second
restrictions.

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3. In Leung Kwok Hung, what test did the CFA lay down in deciding when a
constitutional right may be restricted?

Leung Kwok Hung Public Procession Proportionality Test ¶36

4. In Hysan, what is the 4th step the CFA added to the proportionality test?

Hysan ¶52

Hysan ¶135

whether a reasonable balance has been struck between the societal benefits of the
encroaching measure on the one hand and the inroads made into the guaranteed right
on the other.

5. In Hysan, why did the lower courts not want to apply the proportionality test at all?
What test did the lower courts want to apply?

BL 6 and 105 are not engaged because “in accordance with law” limits BL6 and 105
protection exclusively to a requirement that property rights are protected by legally
certain and accessible laws (Hysan ¶¶19 and 20). As such, there is no need to apply
proportionality analysis.

6. Why did the CFA in Hysan disagree with the CA? See Paragraph [32]. Why is this
ironic?

CFA disagreed with CA and held that far from diminishing the protection of BL 6 and
105, in accordance with law confers the added protection of legal certainty.

7. What are the factors the CFA in Hysan take into account when deciding how the 3 rd
step is applied?

(¶122 of Hysan) Two differently named standards are referred to: “reasonable
necessity” and “manifestly without reasonable foundation”, they indicate positions on
a continuous spectrum rather than wholly independent concepts.

Factors: (i) the significance of and degree of interference with the right in question;
and (ii) the identity of the decision-maker as well as the nature and features of the
encroaching measure relevant to setting the margin of discretion (¶107)

8. What specific types of cases did the CFA in Hysan use to illustrate circumstances it
would defer to the HKSAR government when applying the proportionality test?

Allocation of scarce resources (¶116 and 118), national security, defence and foreign
affairs (¶117).

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9. Give me another example for deference, raised in Part A of your course, which the
CFA in Hysan did not mention. Non-intervention principle (Leung Kwok Hung
Filibusting), election (Fok Chun Wa para 75, Ho Chun Yan Election Petition para 45)

10. Even though proportionality review was applied in Hysan, what did the CFA do to
reduce the burden of proof on the HKSAR government?

By adopting a broad margin of discretion near the “manifestly without reasonable

foundation” spectrum (¶126 of Hysan).

11. In paragraph 78 of Hysan, the CFA argued that the fourth step is “unlikely” to change
the result reached by the three-step test. Johannes Chan argued in his essay that Step 3
and Step 4 are distinct and different aspects of the proportionality test. Who do you
agree with and why?

12. Johannes Chan on Page 274 of his essay argues that a distinction must be drawn
between a “legislative encroachment” of fundamental rights and a restriction imposed
by “executive discretion”. As an example of the former, Chan referred to restrictions
on spousal benefits for same-sex couples. Was that a “legislative” encroachment? Or
is Johannes Chan actually distinguishing between rule-based encroachments and
discretionary restrictions?

Johannes Chan actually gave a few other examples like reverse onus in drug cases and
a challenge to the statutory requirement to obtain leave to appeal. But yes same-sex
couple’s spousal benefits are executive policy (see e.g. QT) rather than legislative
scheme. I think it’s fair to say that actually Johannes Chan was distinguishing
between ruled-based encroachments and discretionary restrictions.

In response to Qs. 11 and 13, Johannes Chan is of the view that when the interference
takes the form of executive discretion or may involve a distribution issue under an
executive scheme such as that relating to town planning or social economic policies, it
does not follow from a consideration that the legislative or executive scheme goes no
more than necessary to achieve its legitimate aim that the exercise of discretion under
such scheme will necessarily strike a fair balance, as the manner of how the
legislative or the executive scheme is implement varies from case to case. In short,
the 4th stage of fair balance will become a distinct stage of scrutiny and will not
necessarily be subsumed under the 3rd stage.

13. Do you agree with Johannes Chan that the Step 4 analysis plays a more distinct role
for discretionary restrictions than rule- based ones?

14. Critically discuss this statement:

The judicial use of the proportionality doctrine to assess the constitutionality

of legislation usurps the legislature’s prerogative to make law and is undemocratic.

Different degree of scrutiny in different contexts, constitutional duty to uphold BL,

the supremacy of BL as written constitution in HK

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15. Critically discuss this statement:

In determining the margin of discretion the Courts will afford the government when
assessing whether a measure encroaching on a constitutional right is "no more than
necessary", the Hong Kong Court of Final Appeal in Hysan Development Company
Limited v Town Planning Board (FACV No. 21 of 2015 at [114]) held that "[t)he
content and features of the impugned measure, the identity and constitutional role of
its originator and any special competence possessed by such person, are likely to be
highly relevant to deciding how wide the margin of discretion should be.”

Should the Court give a wider margin of discretion to a decision which requires expert
knowledge? What’s the difference between rights in socio-economic or political
spheres from other fundamental rights?

16. According to the CA in Cheung Tak Wing, do lone protestors need to seek permission
to protest at the Forecourt?

Yes cf. demonstrators only need to obtain letter of no objection for a public
procession with more than 30 people (s. 13(2)(b) of the POO) and for a public
meeting with more than 50 people (s.7(2) of POO). Cheung Tak Wing ¶130

17. Why did the CA rule in Cheung Tak Wing that the restriction was “no more than
reasonably necessary”?

Cheung Tak Wing ¶¶100-101

Whilst the CA acknowledged the symbolic significance of expressing views at or in

the vicinity of Civic Square (¶123), the existence of alternative means is a relevant
consideration under the proportionality analysis (¶119). The designation of the
demonstration area just outside the Civic Square for demonstration and public
meetings and the arrangements of receiving petitions from Government officials are
realistic alternatives that demonstrate the restrictions, to avoid any potential violence
arising from public meetings, are no more than reasonably necessary.

18. After CA Cheung Tak Wing, can the government have a blanket ban on
demonstrations of more than one person at the Forecourt on weekdays, even if LegCo
is not in session?

Yes, ¶129

19. In Kwok Wing Hang, why did the CFA state that the Regulations made under the
Emergency Regulations Ordinance cannot override the Bill of Rights Ordinance?

¶79, IGCA section 2A(1) and Section 5 of the HKBORO

20. Why did the CFA in Kwok Wing Hang uphold the ban on facial covering at lawful
public assemblies?

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Rights engaged: (i) the freedom of assembly, procession and demonstration under
Article 17 of the BOR and Article 27 of the Basic Law, (ii) the freedom of speech and
expression under Article 16 of the BOR and Article 27 of the Basic Law, and (iii) the
right to privacy under Article 14 of the BOR. 

Paras 123, 129, 130

Para 134: the CFA held that the right to wear mask to demonstrate does not lie at the
heart of the right to peaceful assembly