FACC No 9 of 2023

[2024] HKCFA 2

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 9 OF 2023 (CRIMINAL)

(ON APPEAL FROM HCMA NO 51 OF 2022)

BETWEEN

HKSAR Respondent
(Appellant)
and

CHOW HANG TUNG (鄒幸彤) Appellant

(Respondent)

Before: Chief Justice Cheung, Mr Justice Ribeiro PJ,

Mr Justice Fok PJ, Mr Justice Lam PJ and
Mr Justice Gleeson NPJ

Date of Hearing: 22 November 2023

Date of Judgment: 25 January 2024

JUDGMENT
 -2-

Chief Justice Cheung:

1. This appeal by the prosecution raises the question of whether a

collateral challenge to the validity of a prohibition of the holding of a public
meeting can be mounted in a prosecution for inciting others to take part in
the prohibited meeting, contrary to section 17A(3)(a) of the Public Order
Ordinance1 and the common law.

The facts

2. The facts giving rise to the prosecution below may be briefly

stated. On 27 April 2021, the Hong Kong Alliance in Support of Patriotic
Democratic Movements of China, 2 of which the respondent, Miss Chow
Hang Tung, was the Vice Chairman at the time, gave a written notification,
as required by sections 7(1)(a) and 8 of the Ordinance, to the Commissioner
of Police of its intention to hold a meeting at Victoria Park between 8 pm
and midnight on 4 June 2021 to commemorate the 32nd anniversary of the
“4 June incident”.

3. On 25 May 2021, the police had a liaison meeting with the

Alliance’s representative to discuss arrangements for the proposed meeting.
After the meeting, the Alliance submitted to the police a revised notification
dated 25 May 2021 in which the estimated number of participants was
revised downwards from 100,000 to 150,000 to between 40,000 and 60,000,
and the time of the proposed meeting was shortened to between 8 pm and
10 pm.

4. On 27 May 2021, the Commissioner of Police issued a notice

of prohibition to the Alliance pursuant to section 9 of the Ordinance,

1
Cap 245, “the Ordinance”.
2
“the Alliance”.
 -3-

prohibiting the holding of the meeting on 4 June 2021. The notice stated
that in view of the need of maintaining public safety, public order and
protecting the rights and freedoms of others, and after taking into account
local and global Covid pandemic situations at the time, the Commissioner
had decided to prohibit the intended meeting.

5. Pursuant to section 16 of the Ordinance, the Alliance lodged an

appeal against the prohibition with the Appeal Board constituted under
section 44 of the Ordinance. On 29 May 2021, the Appeal Board confirmed
the decision of the Commissioner and dismissed the appeal.

6. On the same day, the government issued a press release

informing the public of the Commissioner’s prohibition of the intended
public meeting on 4 June 2021 and the Appeal Board’s dismissal of the
Alliance’s appeal. It advised that the intended meeting, if held, would be an
unauthorised assembly and no one should take part in it nor advertise or
publicise it. Otherwise, he or she would be acting in contravention of the
law.

7. That notwithstanding, the respondent published posts on her

personal Facebook page and Twitter account on 29 May 2021, as well as an
article in a Chinese newspaper on 4 June 2021 criticising the prohibition
and, so the courts below found, encouraging others to attend the prohibited
meeting.

Before the magistrate

8. The respondent was therefore charged 3 with an offence of

“incitement to knowingly take part in an unauthorised assembly”, contrary

3
WKCC 2595/2021.
 -4-

to common law and section 17A(3)(a) of the Ordinance, and punishable

under section 101I of the Criminal Procedure Ordinance.4

9. At trial before the magistrate,5 the respondent took a number of

points by way of defence. Among others, she argued that the
Commissioner’s prohibition of the intended meeting was “unlawful” as it
was an unlawful and disproportionate interference with her fundamental
rights to freedom of assembly, expression and demonstration.

10. Agreeing with the prosecution, the magistrate rejected the

defence on the grounds that it was not open to the respondent to challenge
the validity and lawfulness of the prohibition in a criminal court but only by
way of judicial review.6 The magistrate also rejected other defences raised
by the respondent. She convicted the respondent accordingly and sentenced
her to 15 months’ imprisonment.7

Before the judge on appeal

11. On appeal,8 Barnes J agreed with the magistrate and rejected

all but one grounds of appeal relied on by the respondent. The learned
judge parted company with the magistrate on whether the respondent could
challenge the legality of the prohibition in the criminal prosecution.
Pointing out that whether such a challenge could be mounted turned on the
proper interpretation of the Ordinance, the judge stressed that although a
prohibition under section 9 of the Ordinance applies to all members of the

4
Cap 221.
5
Ms Amy Chan.
6
No application for judicial review was ever made by the Alliance or anyone else.
7
[2022] HKMagC 1.
8
HCMA 51/2022, [2022] HKCFI 3692.
 -5-

public, not everyone may resort to the appeal mechanism under the
Ordinance to challenge the prohibition :

“44. I agree that since a member of the public may be prosecuted for measures
of a general character without any opportunity to appeal, the construction of a
statute should allow the citizen to challenge the lawfulness of these measures in
the criminal trial. The Prohibition Order in the present case is a measure of a
general character rather than a measure against an individual member of the
public for failing to comply with an enforcement notice. Although the respondent
relied upon the appeal mechanism under the Public Order Ordinance and
emphasised the finality of the Appeal Board's determination under the Ordinance,
the mechanism can by no means provide to the general public (such as the
appellant) any opportunity to appeal because only specified persons may appeal.
For this reason, I accept the submission of Mr. Pang SC that upon proper
construction, the Public Order Ordinance allows the appellant to challenge the
legality of the Prohibition Order in the criminal trial.”9

12. The judge further reasoned that :

“45. …If the Prohibition Order was not lawfully issued, the appellant then would
not be breaking the law even if she had appealed to others to assemble in
Victoria Park. Therefore, in my view, the legality of the Prohibition Order is an
essential element of the offence, and the appellant may also challenge its legality
in the criminal trial.”

13. The judge then proceeded to examine the “operational

proportionality” of the prohibition, that is, whether a complete ban of the
intended meeting at Victoria Park was necessary given the prevailing
circumstances at the time. She referred to the restriction on the rights to
freedom of assembly, expression and demonstration by the prohibition and
thus the applicability of the proportionality test,10 but essentially zeroed in
on the requirement of section 9(4) 11 of the Ordinance in deciding the
question of “operational proportionality”.12 Largely on the basis that the

9
The judgment was written in Chinese. The extracts in this judgment are taken from
the certified English translation of the Chinese judgment.
10
[47] - [48], [51].
11
See [46] below.
12
[52].
 -6-

Commissioner had not seriously considered whether the intended meeting

could be allowed to be held by the imposition of suitable measures or
conditions with a view to controlling or minimising the risk of Covid as
required by section 9(4), the judge held that the prosecution had failed to
establish the legality of the prohibition. The judge said :

“64. Taking all the above into consideration, it is my view that the evidence
did not show that the police had discharged their positive duty under section 9(4)
of the Public Order Ordinance by considering that apart from the ban, whether
there were other feasible measures which would permit and facilitate the holding
of the meeting. Both the Appeal Board and the trial magistrate accepted the
pandemic consideration to be the reason for issuing the Prohibition Order, but
they also did not take into account the feasibility of other measures or conditions.
Therefore, the respondent has failed to establish the legality of the Prohibition
Order, and I find that the challenge by the appellant succeeds.”

14. The judge accordingly allowed the respondent’s appeal and

quashed her conviction and sentence, notwithstanding her rejection of the
respondent’s other grounds of appeal.

Two certified points of law

15. Recognising that her decision raised important questions of law,

by a decision dated 19 January 2023,13 the judge certified two points of law
of great and general importance pursuant to section 33 of the Hong Kong
Court of Final Appeal Ordinance :14

“(1) In a prosecution for an offence of incitement to knowingly take part in an

unauthorized assembly contrary to Common Law and section 17A(3)(a) of the
Public Order Ordinance, Cap. 245 and punishable under section 101I of the
Criminal Procedure Ordinance, Cap. 221, is it open to a defendant to raise by
way of defence the legality of the police’s prohibition of the subject public
meeting which was subsequently upheld by the Appeal Board on Public
Meetings and Processions (‘the Appeal Board’)?

13
[2023] HKCFI 226.
14
Cap 484.
 -7-

(2) In the event that the answer to the above question is in the affirmative,
what is the correct approach that the court should take in considering a
defendant's challenge to the legality of the police's prohibition and of the
subsequent determination by the Appeal Board?”

16. On 8 June 2023, the Appeal Committee15 granted leave to the

prosecution to appeal from the judge’s decision on the basis of the two
certified points of law.16

The arguments on appeal

17
17. At this appeal, the appellant essentially repeated its
arguments below and contended that the legislature had already set up an
elaborate appeal mechanism under the Ordinance to review the
Commissioner’s prohibition of an intended public meeting. The decision of
the Appeal Board is “final”, 18 and therefore is final for all purposes
including that of a criminal prosecution for contravention of the prohibition,
save for and subject to a successful challenge (if any) by way of judicial
review in the High Court. To allow a collateral challenge to the validity of
the Commissioner’s prohibition in a prosecution before a criminal court
would lead to uncertainty and confusion, might result in inconsistent
decisions, and would defeat the purpose of the Ordinance. The appellant
also pointed out that there are differences in terms of the parties involved,
the materials that may be considered, the onus of proof, and the expertise of
the courts between a collateral challenge before a criminal court and a
judicial review in the High Court. Allowing a collateral challenge before
the criminal court would render the criminal trial unfocused, protracted and

15
Ribeiro and Lam PJJ, Chan NPJ.
16
[2023] HKCFA 14.
17
Represented by Mr William Tam SC and Mr Edward Lau.
18
s 44A(7).
 -8-

lengthy. The appellant submitted that all this could not have been the
legislative intent of the Ordinance.

18. The respondent basically supported the judge’s reasons.

Counsel 19 pointed out that while the matter is always one of statutory
construction, there is a strong presumption in favour of allowing a collateral
challenge. Where an offence consists of disobeying a prohibition, the
validity of the prohibition must be an essential premise for the commission
of the offence. It would take very clear words to deprive a defendant of an
opportunity to challenge the validity of the prohibition. This is especially
so when an intending participant, like the respondent, does not have a right
of appeal against the prohibition to the Appeal Board. Counsel also
suggested that the respondent might not have the necessary standing to
lodge an application for judicial review of the Appeal Board’s dismissal of
the Alliance’s appeal against the prohibition. The criminal trial, counsel
submitted, therefore represented the first and only opportunity for the
respondent to bring into issue the validity of the prohibition. To deny her
the opportunity to do so would be contrary to the rule of law.

19. The parties also made submissions on the proper approach of a

criminal court in deciding a collateral challenge to the validity of a
prohibition, assuming that such a challenge was open to a defendant, as well
as whether, on the facts of the present case, the prohibition was
disproportionate or otherwise invalid.

General principles on collateral challenges in criminal proceedings

20. I turn first to some general principles on collateral challenges,

before focusing my attention on the Ordinance and its relevant provisions.

19
Mr Robert Pang SC and Mr Chris Ng.
 -9-

21. The general principles on collateral challenges in criminal

proceedings should not be controversial. I take it as reasonably settled that
whether a collateral challenge may be mounted in a criminal court is a
matter of statutory construction of the relevant legislation. The question is
sometimes framed as whether it is the legislative intent to “allow” such a
challenge to be made in a criminal prosecution. A more focused and indeed
accurate way of putting it is whether on a proper construction, the validity
of the administrative act in question (the prohibition in the present case) is
an essential element of the offence or a statutory defence provided for under
the offence-creating provision. If the answer is in the affirmative, the
criminal court will necessarily have to deal with the issue when trying the
prosecution. Indeed, strictly speaking, it is a misnomer to call the challenge
a “collateral” challenge. 20 If the answer is in the negative, the court is
simply not seized of it. Analysed thus, the question is not so much whether
the challenge is “allowed” by the legislature to be made as whether it is
relevant to an issue before the criminal court. As Lord Hoffmann explained
in R v Wicks :21

“… The question must depend entirely upon the construction of the statute under
which the prosecution is brought. The statute may require the prosecution to
prove that the act in question is not open to challenge on any ground available in
public law, or it may be a defence to show that it is. In such a case, the justices
will have to rule upon the validity of the act. On the other hand, the statute may
upon its true construction merely require an act which appears formally valid and
has not been quashed by judicial review. In such a case, nothing but the formal
validity of the act will be relevant to an issue before the justices. It is in my view
impossible to construct a general theory of the ultra vires defence which applies
to every statutory power, whatever the terms and policy of the statute.”
(emphasis added)

20
Nonetheless, I will continue to call the challenge a collateral challenge in this
judgment, as the term has been generally used to refer to the type of challenge faced
in the present appeal.
21
[1998] AC 92, 117B - D.
 - 10 -

22. In Wicks, the issue was whether a collateral challenge could be

mounted against an “enforcement notice”, the non-compliance of which led
to the criminal prosecution. Lord Hoffmann explained :22

“In my view the question in this case is likewise one of construction. What is
meant by ‘enforcement notice’ in section 179(1) of the Act of 1990? Does it
mean a notice which is not liable to be quashed on any of the standard grounds in
public law? Or does it mean a notice issued by the planning authority which
complies with the formal requirements of the Act and has not actually been
quashed on appeal or judicial review? The words ‘enforcement notice’ are in my
view capable of either meaning. The correct one must be ascertained from the
scheme of the Act and the public law background against which it was passed.”

23. In the oft-cited House of Lords case of Boddington v British

Transport Police,23 Lord Irvine LC echoed :24

“However, in every case it will be necessary to examine the particular statutory

context to determine whether a court hearing a criminal or civil case has
jurisdiction to rule on a defence based upon arguments of invalidity of
subordinate legislation or an administrative act under it. There are situations in
which Parliament may legislate to preclude such challenges being made, in the
interest, for example, of promoting certainty about the legitimacy of
administrative acts on which the public may have to rely.”

24. The same principles have been recognised and applied in quite
a few local cases. In the well-known case of Secretary for Justice v Ocean
Technology Ltd & others,25 the Court of Appeal held that as a matter of
statutory construction of sections 8 and 20 of the Telecommunications
Ordinance26 concerning the offence of establishing or maintaining a means
of telecommunications without a licence, the legality of a decision to refuse
a broadcasting licence or of an aspect of the licensing scheme at any given
time is not a necessary element of the offence, and therefore is not an issue
22
p 119A - B.
23
[1999] 2 AC 143.
24
p 160C - D.
25
[2009] 1 HKC 271.
26
Cap 106.
 - 11 -

that a criminal court is concerned with in a prosecution of the offence.27

Stock JA28 explained :

“94. A proper construction of ss 8 and 20 of the Ordinance is one that

recognises that it must have been the legislature’s intention that the
legality of a licensing decision or of an aspect of the licensing scheme at
any given time was not a necessary ingredient of the offence. It would
be as unrealistic and non-contextual to suggest that, as it would to
contend that in enacting a provision that prohibited the driving of a
motor vehicle without a licence, the legislature intended that it would be
a defence to a charge of driving without a licence to show that, upon a
driving test, the driving examiner ought not to have refused the
examinee his full licence or to show that the criteria for granting driving
licences were insufficiently precise to meet the test of prescription by
law.

95. It must follow that it was the legislature’s intention that if an applicant
for a broadcasting licence wishes to attack the statutory licensing system,
or a licensing decision, he must do so once he has made an application
and has received a response which might be impugned at law. In a
prosecution for an offence under ss 8 and 20 of the Ordinance, it is not
open to a defendant to raise by way of defence the legality of a licensing
decision or of the licensing scheme. Any other construction would, in
my opinion, be contrary to the clear policy of the legislative scheme as a
whole.”

See also HKSAR v The Incorporated Owners of No 10 Bonham Strand ＆

another; 29 HKSAR v Joy Express Ltd (No 2); 30 HKSAR v Sky Wide
Development Ltd;31 HKSAR v Cheung Kam Fai.32

25. Although the question is one of statutory interpretation, as a

matter of the rule of law, the courts lean against a construction which will
deprive a defendant of the right to challenge the validity of the

27
[71], [94] - [96], [98], [123].
28
as Stock NPJ then was.
29
HCMA 239/2004, 28 May 2004.
30
[2005] 2 HKC 147.
31
[2013] 1 HKLRD 613.
32
[2021] HKCFA 15.
 - 12 -

administrative act concerned, the breach of which resulted in the criminal

prosecution. Lord Irvine put it strongly in Boddington :33

“However, in approaching the issue of statutory construction the courts proceed

from a strong appreciation that ours is a country subject to the rule of law. This
means that it is well recognised to be important for the maintenance of the rule
of law and the preservation of liberty that individuals affected by legal measures
promulgated by executive public bodies should have a fair opportunity to
challenge these measures and to vindicate their rights in court proceedings.
There is a strong presumption that Parliament will not legislate to prevent
individuals from doing so : ‘It is a principle not by any means to be whittled
down that the subject’s recourse to Her Majesty’s courts for the determination
of his rights is not to be excluded except by clear words.’ Pyx Granite Co. Ltd v.
Ministry of Housing and Local Government [1960] A.C. 260, 286, per Viscount
Simonds; cited by Lord Fraser of Tullybelton in Wandsworth London Borough
Council v. Winder [1969] A.C. 461, 510.”

26. One important consideration is whether the defendant in the

prosecution has any other opportunities to challenge the administrative act
in question, or whether the criminal prosecution represents the first and
perhaps only opportunity for him to do so. In Boddington, where in issue
was the vires of a smoking ban on trains imposed under subsidiary
legislation, the House of Lords was very much influenced by the fact that
the defendant had had no chance to challenge the ban until he was charged
with disobeying it. Lord Irvine said :34

“By contrast, where subordinate legislation (e.g. statutory instruments or byelaws)

is promulgated which is of a general character in the sense that it is directed to
the world at large, the first time an individual may be affected by that legislation
is when he is charged with an offence under it : so also where a general provision
is brought into effect by an administrative act, as in this case. A smoker might
have made his first journey on the line on the same train as Mr. Boddington; have
found that there was no carriage free of no smoking signs and have chosen to
exercise what he believed to be his right to smoke on the train. Such an
individual would have had no sensible opportunity to challenge the validity of
the posting of the no smoking signs throughout the train until he was charged, as
Mr. Boddington was, under byelaw 20. In my judgment in such a case the strong
presumption must be that Parliament did not intend to deprive the smoker of an

33
p 161C/D - E/F.
34
pp 161H - 162B/C.
 - 13 -

opportunity to defend himself in the criminal proceedings by asserting the

alleged unlawfulness of the decision to post no smoking notices throughout the
train. I can see nothing in section 67 of the Transport Act 1962 or the byelaws
which could displace that presumption. …”

27. The situation was contrasted with the earlier case of Wicks,
which concerned an administrative act specifically directed at the defendant
(the recipient of an enforcement notice), where there had been clear and
ample opportunity provided by the scheme under the relevant legislation for
the defendant to challenge the legality of the act, before his being charged
with an offence.35

28. That said, it has to be firmly borne in mind that ultimately, the
issue is one of statutory construction, depending on the context and purpose
of the legislation, the wording used and other relevant considerations.
There is no rule of law that a statute must not prescribe the elements of an
offence or any statutory defence applicable in such a way as to deprive a
defendant of the opportunity to challenge the validity of an administrative
act in the criminal prosecution itself, the non-compliance of which act
founds the offence. As the authorities have pointed out, the legislature may
have good reasons for so legislating in particular situations, and where that
is the case, the court must construe the statutory provisions accordingly.

29. Another relevant consideration discussed in the case law is

whether the criminal courts, particularly the magistrates’ courts, are suitable
forums for hearing challenges against the validity of administrative acts (or
the vires of subsidiary legislation), bearing in mind that judicial reviews are
as a rule heard in the High Court. In this regard, it had been observed by
the Divisional Court in Quietlynn Ltd v Plymouth City Council36 that :

35
Boddington, at p 161F/G - G/H.
36
[1988] QB 114, 131D - E.
 - 14 -

“… The law relating to judicial review has become increasingly more

sophisticated in the past few decades, and in our view justices are not to be
expected to have to assume the functions of the Divisional Court and consider
the validity of decisions made by a local authority under this Act in the light of
what is now a complex body of law. If a bona fide challenge to the validity of the
decision in question is raised before them, then the proceedings should be
adjourned to enable an application for judicial review to be made and
determined. …”

30. Likewise, in The Incorporated Owners of No 10 Bonham

Strand, McMahon J queried :

“17. By that he was suggesting in my view that the question was whether the
legislative intent was to have questions as to whether the decision in issue was
based upon irrelevant or improper grounds dealt with by a criminal court. In the
present case, which factually is very similar to the circumstances in Wick’s case,
it is certainly possible to argue that our legislature cannot have intended that a
busy magistrates’ court was the proper forum to go behind the Director’s issued
directions and determine whether his decision to issue those directions to the
appellants was Wednesbury reasonable or not.”

31. On the other hand, Lord Irvine in Boddington 37 cautioned

against “belittling” magistrates’ courts :

“Nor do I think it right to belittle magistrates’ courts: they sometimes have to

decide very difficult legal questions and generally have the assistance of a legally
qualified clerk to give them guidance on the law.”

32. Still on the question of judicial review as the proper channel to

challenge the validity of an administrative act, Lord Steyn in Boddington
put the matter very strongly against depriving a defendant of an opportunity
to mount a collateral challenge in the criminal court just because judicial
review was also available :38

“… It is true that Bugg’s case allows the defendant to challenge the byelaw in
judicial review proceedings. The defendant may, however, be out of time before
he becomes aware of the existence of the byelaw. He may lack the resources to
defend his interests in two courts. He may not be able to obtain legal aid for an
application for leave to apply for judicial review. Leave to apply for judicial

37
p 162F/G - H.
38
p 173C - G.
 - 15 -

review may be refused. At a substantive hearing his scope for demanding

examination of witnesses in the Divisional Court may be restricted. He may be
denied a remedy on a discretionary basis. The possibility of judicial review will,
therefore, in no way compensate him for the loss of the right to defend himself
by a defensive challenge to the byelaw in cases where the invalidity of the
byelaw might afford him with a defence to the charge. My Lords, with the utmost
deference to eminent judges sitting in the Divisional Court I have to say the
consequences of Bugg’s case are too austere and indeed too authoritarian to be
compatible with the traditions of the common law. In Eshugbayi Eleko v.
Government of Nigeria [1931] A.C. 662, a habeas corpus case, Lord Atkin
observed, at p. 670, that ‘no member of the executive can interfere with the
liberty or property of a British subject except on condition that he can support the
legality of his action before a court of justice.’ There is no reason why a
defendant in a criminal trial should be in a worse position. And that seems to me
to reflect the true spirit of the common law.”

These are strong words indeed.

33. The availability or non-availability of judicial review is

certainly a relevant consideration, but by no means a conclusive one.
Likewise, whether the magistrates’ courts are well-equipped to handle a
collateral challenge which otherwise should normally be dealt with by the
High Court in judicial review proceedings is also a relevant factor.
Ultimately, it is a question of statutory interpretation. No generalised theory
or hard and fast rule can be, or should be, laid down. Absent a
constitutional challenge to the offence-creating provision itself which, if
mounted, the criminal court hearing the prosecution of the offence under
challenge will necessarily have to hear and decide for itself,39 the legislature
is free to enact criminal offences comprising whatever constituent elements
as it sees fit, or to specify what may constitute a defence to an offence and
what may not.

34. Similarly, the availability of a statutory or administrative

procedure to review or appeal against the original administrative act is also
a relevant indicium of the true legislative intent, particularly if the

39
See [37] below.
 - 16 -

administrative decision, the review/appeal mechanism and the criminal

sanction (for non-compliance with the administrative decision) all form part
and parcel of an elaborate statutory scheme to control and regulate a certain
type of activity and/or balance competing rights and freedoms. As observed
by L’Heureux-Dubé J in the Canadian Supreme Court case of R v
Consolidated Maybrun Mines Ltd40 concerning a collateral challenge to an
environmental administrative order in general proceedings :

“In his treatise on administrative law (Administrative Law (3rd ed. 1996)),
Professor David Mullan suggests that the validity of government acts can just as
well be raised directly as collaterally. He wrote the following, inter alia, at p. 490:

The essence of collateral attack is invalidity or an absence of jurisdiction.

Decisions or orders made or actions taken without jurisdiction or in
excess of jurisdiction are nullities which cannot be relied upon as a
justification; they have no legally recognized existence.

Although this proposition is sound, as is usually the case in regulatory matters, it

is far too general in scope to be applied in all circumstances. Taken literally, it
would imply that a person to whom an order is directed is entirely free, rather
than having recourse to the established procedures for challenging the order, to
wait for penal charges to be laid before challenging its validity. Such a solution
would obviously have serious ramifications for both the government and society
in general. Aside from the danger that administrative tribunals would be
discredited, increasing recourse to penal sanctions would result. Rather than
promoting cooperation and conciliation, which are among the basic objectives of
such administrative mechanisms, this would result in a hardening of relations
between governments and citizens. In many cases, this would seriously
undermine the effectiveness of administrative schemes designed to respond to
situations requiring immediate remedial action, as is often the case, for example,
in environmental matters.”

All these considerations, where applicable, are therefore relevant in

discerning the statutory intent of the offence-creating provision.

Collateral challenges based on constitutional grounds

35. In my view, the above legal principles hold true whether the
validity of the administrative act is sought to be challenged on conventional

40
[1998] 1 SCR 706, [41] - [42].
 - 17 -

public law or other non-constitutional grounds, or on constitutional grounds

(ie based on fundamental rights). In either case, the question whether the
challenge can be made before the criminal court remains a question of
statutory construction of the relevant legislation. As Lord Hoffmann
pointed out in Wicks,41 the legislature may simply require an administrative
act that is formally valid and has not been quashed by judicial review. It
may, for reasons of its own, merely require such an act as a constituent
element of the offence. If that is the case, the fact that the act may be liable
to be quashed on constitutional grounds in judicial review is not something
that concerns the criminal court and does not require that court’s
determination. So long as the act has not been quashed by judicial review,
it may convict the defendant of the offence.

36. Here, it is important to repeat the point made earlier that the
question is not whether it is the legislative intent to “allow” a collateral
challenge based on constitutional grounds to be made against the
administrative act in a criminal prosecution. This way of framing the
question rather unhelpfully raises the non-issue of whether the legislature
can ever by legislation “disallow” defendants from relying on their
constitutional/fundamental rights to defend criminal charges by raising
collateral challenges.

37. As explained, the answer to the question of whether a collateral

challenge can be mounted against the administrative act which founds the
offence – regardless of the grounds on which it is based – lies in whether it
is relevant to any issues that the criminal court has to deal with in the
criminal prosecution. The answer to this latter question turns solely on
what constitute the elements of the offence, and what the applicable

41
p 117B - D.
 - 18 -

statutory (or common law) defence(s), if any, are. And this is essentially a
question of statutory construction. If the collateral challenge based on
constitutional grounds does not go to any of the elements of the offence or
defence(s), it is simply not an issue that the criminal court need or has
jurisdiction to deal with. The fact that it is based on constitutional grounds
is neither here nor there in the criminal prosecution. If it is contended that
the offence, as constituted, is not constitutional, a direct challenge against
the offence-creating provision may always be made before the criminal
court hearing the prosecution of the offence. In that event, the criminal
court will be seized of the challenge and must deal with it accordingly – it
will have to consider whether the offence, constituted as it is by merely
requiring a formally valid administrative act which has not been quashed by
judicial review, engages the alleged fundamental right(s); and if so, whether
the offence as so constituted can pass the four-stage proportionality test.
But it has to be stressed that such a constitutional challenge against the
offence itself is entirely different in nature and involves very different
(although some overlapping) considerations from a collateral challenge
based on constitutional grounds against a particular administrative act
which founds the prosecution, and the two should not be confused with
each other. In the present case, one is concerned with the latter, not the
former.42

38. Section 6(1)(b) of the Hong Kong Bill of Rights Ordinance43

provides that a court in proceedings within its jurisdiction “in which a
violation … of the Bill of Rights is relevant” may grant such remedy or
relief, or make such order, in respect of the violation as it has power to grant
or make in these proceedings. The section does not help decide whether a

42
See [88] below.
43
Cap 383.
 - 19 -

collateral challenge against the validity of the administrative act based on a

violation of the Hong Kong Bill of Rights44 can be entertained in a criminal
prosecution because it simply begs the question of whether the violation is
“relevant” to the criminal prosecution in terms of the constituent elements
of the offence or an applicable statutory defence (if any). The ultimate
question remains one of statutory construction of the legislation concerned.

General principles on statutory interpretation

39. For the sake of completeness, I should add that the general
principles on statutory interpretation are well established. As was
summarised in HKSAR v Chan Chun Kit :45

“10. The rules of statutory construction are well established. Words are
construed in their context and purpose. They are given their natural and ordinary
meaning with context and purpose to be considered alongside the expressed
wording from the start, and not merely at some later stage when an ambiguity is
thought to arise. A purposive and contextual interpretation does not mean that
one can disregard the actual words used in a statute. Rather, the court is to
ascertain the intention of the legislature as expressed in the language of the
statute. As has been repeatedly pointed out, one cannot give a provision a
meaning which the language of the statute, understood in the light of its context
and purpose, cannot bear.

11. Context here is to be taken in its widest sense and includes other statutory
provisions and the general law. The purpose of a statutory provision may be
evident from the provision itself, the recommendation of a report such as that
published by the Law Reform Commission, the explanatory memorandum to the
relevant bill or a statement by the responsible official of the government in
relation to that bill in the Legislative Council. It may also be relevant in any
given case to look at the history of the provision concerned.”

The Ordinance

40. With all this in mind, I turn to the relevant provisions in the
Ordinance. The Ordinance, first enacted in November 1967 after the very

44
The Hong Kong Bill of Rights Ordinance, section 8.
45
(2022) 25 HKCFAR 191, citations omitted.
 - 20 -

serious civil unrest earlier that year, was substantially amended in 199546
and again in 1997. 47 The amended long title says it is an ordinance to
“consolidate and amend the law relating to the maintenance of public order,
the control of organizations, meetings, processions, places, … unlawful
assemblies and riots and matters incidental thereto or connected therewith”.

41. Part III of the Ordinance makes provisions for the control of
meetings, processions and gatherings. Section 7 regulates the holding of
public meetings. Relevantly, it stipulates :

“(1) Subject to this Ordinance, a public meeting may take place if, but only if, –
(a) the Commissioner of Police is notified under section 8 of the intention
to hold the meeting; and
(b) the holding of the meeting is not prohibited by the Commissioner
of Police under section 9.
(2) This section shall not apply to –
(a) a meeting of not more than 50 persons; …”

42. Section 8 provides for the giving of notification of public

meetings. Subsection (1) reads :

“For the purposes of section 7, notice of the intention to hold a public meeting
shall be given in writing to the Commissioner of Police –

(a) not later than 11 a.m. on the same day of the week in the preceding
week as the day on which the meeting is intended to be held; or

(b) where the last day for giving notice under paragraph (a) would fall
on a general holiday, not later than 11 a.m. on the first day
immediately preceding that day which is not a general holiday. …”

46
The Public Order (Amendment) Ordinance 1995, Ord No 77 of 1995. Among other
things, sections 8 to 16, 43 and 44 were repealed and replaced by new provisions,
and a new section 44A was added.
47
The Public Order (Amendment) Ordinance 1997, Ord No 119 of 1997. Among other
things, “public safety or public order” was replaced by “the interests of national
security or public safety, public order (ordre public) or the protection of the rights
and freedoms of others” where the phrase appeared in the Ordinance. Section 16 was
also repealed and replaced by new provisions.
 - 21 -

43. Section 9 gives to the Commissioner of Police the power to

prohibit the holding of a public meeting. Subsection (1) reads :

“Subject to this section, the Commissioner of Police may prohibit the holding of
any public meeting notified under section 8 where he reasonably considers such
prohibition to be necessary in the interests of national security or public safety,
public order or the protection of the rights and freedoms of others.”

44. Subsection (2) requires the notice of prohibition to “state the

ground or grounds on which the prohibition is considered to be necessary
and the reasons for the Commissioner’s opinion as to those grounds”.

45. Subsection (3) sets out a stringent timeframe within which the
power of prohibition must be exercised :

“The power conferred by subsection (1) shall not be exercised in respect

of any public meeting notified under section 8 –
(a) where notice is given in accordance with section 8(1), at any time
later than 48 hours; or
(b) where shorter notice of 72 hours or more is accepted by the
Commissioner of Police pursuant to section 8(2), at any time later
than 24 hours,
prior to the time of commencement of the meeting as so notified.”

46. Importantly, subsection (4) restricts the power of the

Commissioner to prohibit the holding of a meeting as follows :

“The Commissioner of Police shall not exercise the power conferred by

subsection (1) to prohibit the holding of a public meeting in any case where he
reasonably considers that the interests of national security or public safety, public
order or the protection of the rights and freedoms of others could be met by the
imposition of conditions under section 11(2).”

47. Where the Commissioner prohibits the holding of a meeting,

an appeal may be lodged with the Appeal Board as provided in section 16 :

“(1) A person, society or organization –

(a) named in a notice given under section 8 or 13A;

 - 22 -

(b) to whom a notice of prohibition is given under section 9; or

(c) to whom notice of objection is given under section 14,

who is aggrieved by the decision of the Commissioner of Police to prohibit a

public meeting, to object to a public procession or to impose conditions on the
holding of a public meeting or public procession may appeal to the Appeal Board.

(2) In this section Appeal Board (上訴委員會) means the Appeal Board
constituted under section 44.”

48. The “person, society or organization” referred to in section

16(1), in the case of an intended public meeting, is a reference back to
section 8(4)(a)(i), that is, “the person organizing the meeting and any
society or organization promoting or connected with the holding of the
meeting”, or the person who gave the section 8 notice.

49. Similar provisions in Part III are there to regulate the holding
of public processions.

50. Part IX deals with, among other things, the Appeal Board.
Section 43 sets out the composition of the Board :

“(1) Every appeal made under section 16 shall be determined by an appeal

board to be known as the Appeal Board on Public Meetings and
Processions (in this section and sections 44 and 44A referred to as the
Appeal Board).

(2) The Chief Executive shall appoint to be the Chairman of the Appeal Board a
person who –

(a) is a retired Justice of Appeal or judge of the Court of First Instance;

(b) is a retired District Judge; or
(c) has served for more than 10 years as a magistrate but who is no
longer serving as a magistrate.

(3) The Chief Executive shall appoint a panel of 15 persons, not being public
officers, whom he considers suitable for appointment under section 44 as
members of the Appeal Board, 2 of whom he shall appoint to be the Deputy
Chairmen of the Appeal Board. …”
 - 23 -

51. Sections 44 and 44A govern the procedure and practice of the
Appeal Board when hearing appeals :

“44. Constitution and powers of Appeal Board

(1) The Appeal Board shall consist of the Chairman or a Deputy

Chairman who shall preside at the hearing and 3 persons selected
in rotation in accordance with the alphabetical order of their
surnames from the panel referred to in section 43(3), whom the
Chairman shall appoint to be members of the Appeal Board to
hear any appeal.
(2) In relation to the hearing of appeals every question before the
Appeal Board shall be determined by the opinion of the majority
of the members hearing the appeal and in the case of an equality
of votes the Chairman or Deputy Chairman shall have a casting
vote.
(3) In hearing an appeal the Appeal Board may receive and consider
any material, whether by way of oral evidence, written statements,
documents or otherwise, and whether or not it would be
admissible in a court of law.
(4) The Appeal Board may, after hearing an appeal, confirm, reverse
or vary the prohibition, objection or condition appealed against.

44A. Supplementary provisions relating to appeals

(3) In the hearing of an appeal, the appellant and the Commissioner of

Police shall be entitled to be heard either in person or through a
representative.
(4) If a party mentioned in subsection (3) fails to attend or be
represented at a hearing of which he has been notified the Appeal
Board may hear and determine the appeal in the party’s absence.
(5) Before deciding to dispose of any appeal in the absence of a party
the Appeal Board shall consider any representations in writing
submitted by that party and, for the purposes of this subsection, an
appeal and any reply to an appeal shall be treated as representations
in writing. …”

52. Section 44A(6) is of importance in terms of timing :

“Where any notice of an appeal is given the Appeal Board shall consider and
determine the appeal with the greatest expedition possible so as to ensure that the
appeal is not frustrated by reason of the decision of the Appeal Board being
delayed until after the date on which the public meeting or public procession is
proposed to be held.”
 - 24 -

53. Subsection (7) is equally important :

“The determination of an appeal by the Appeal Board shall be final.”

54. Returning to Part III, section 17A(2)(a) materially provides

that where “any public meeting … takes place in contravention of section 7
…; … the public meeting … shall be an unauthorized assembly.”48

55. Section 17A(3) goes on to provide :

“Where any public meeting … is an unauthorized assembly by virtue of
subsection (2) —

(a) every person who, without lawful authority or reasonable excuse,

knowingly takes or continues to take part in or forms or continues to form
part of any such unauthorized assembly; and

(b) every person who—

(i) holds, convenes, organizes, forms or collects, or assists or is

concerned in the holding, convening, organizing, forming or
collecting of, any public meeting … referred to in subsection
(2)(a); …

after the same has become an unauthorized assembly as aforesaid,

shall be guilty of an offence and shall be liable —

(i) on conviction on indictment, to imprisonment for 5 years; and

(ii) on summary conviction, to a fine at level 2 and to imprisonment for 3

years.”

56. Incitement to commit an offence under section 17A(3), with

which the respondent was charged in the present case, is a common law
offence, and is punishable under section 101I(2) of the Criminal Procedure
Ordinance :

48
Although section 17A(2)(a) only refers to a contravention of section 7, which
requires the non-prohibition of the proposed meeting by the Commissioner, without
mentioning the possibility of a prohibition being reversed by the Appeal Board on
appeal, on the proper construction of section 17A(2), it seems clear that where a
prohibition is so reversed, the public meeting cannot be an unauthorized meeting.
 - 25 -

“Where a person is convicted of …

(c) incitement,

to commit an offence for which a maximum penalty is provided by any

Ordinance, and no penalty is otherwise provided by any Ordinance for
such … incitement, he shall be liable to be sentenced to that maximum
penalty.”

57. The notification requirement under Part III of the Ordinance

for the holding of public meetings (and public processions) plainly affects
the fundamental rights to freedom of assembly, expression and
demonstration. On the other hand, the object of the requirement is to ensure
and protect “the interests of national security or public safety, public order
or the protection of the rights and freedoms of others”,49 which are equally
weighty matters. Obviously, a delicate balance has to be struck between
them. Indeed that was the task faced by the legislature when the substantial
amendments leading to the current regime were tabled before the legislative
body for debate in 1995. From the Hansard material placed before us, it is
plain that the legislature deliberated in great detail on the proposed
amendments.

58. In relation to the notification regime, it subsequently gave rise

to litigation which went all the way up to this court. In Leung Kwok Hung v
50
HKSAR concerning public processions, the court upheld the
constitutionality of the notification regime as being a necessary and
proportionate restriction on the right to freedom of peaceful assembly. As
to the appeal mechanism, it is plain from the Hansard material placed
before this court that the legislature had debated at some length on the
relevant provisions. According to the Report of the Bills Committee to

49
Section 9(1).
50
(2005) 8 HKCFAR 229.
 - 26 -

study the Public Order (Amendment) Bill 1994 dated 4 July 1995, which
was placed before the meeting of the House Committee on 7 July 1995 :

“The appeal provision

10. Members found the new section 16 inadequate. This new section
provided that an aggrieved person could appeal to the Governor in writing
against such prohibition or condition imposed by the Commissioner of Police.
Members held the view that the appeal body should be independent, effective and
able to command trust and should give decision on the appeal before the
proposed event. After lengthy deliberation on the principle and the details, the
Administration agreed to set up an Appeal Board which would consist of a
Chairman and a panel of 15 persons as members. Members discussed in detail
the proposed constitution and powers of the Appeal Board with the
Administration. Members also discussed in detail the qualification of the
Chairman of the Appeal Board and they opined that in order to ensure its
independence from Government, both in substance and in appearance, he should
be a member of the community with high standing and should command respect.
The Bills Committee recommended that he should be a retired High Court or
District Court judge, or a former magistrate who had served in the Judiciary for
ten years or more. The Administration agreed with Members’ suggestion and
would move a Committee Stage Amendment to this effect.

11. Members considered whether the Appeal Board should be empowered to

consider appeals against the Police’s decision not to accept notices of less than
seven days for holding of a public meeting, despite the fact that the Board might
not be able to meet and give a ruling prior to the event. The Administration said
the organiser would then be at liberty to seek a judicial review as a post-event
ruling given by the Appeal Board would not be meaningful. Hon FUNG Chi-
wood however remained unsatisfied with the answer and might consider moving
a Committee Stage Amendment.”

(emphasis added)

59. In the Secretary for Security’s speech to the Legislative

Council on 19 July 1995 during the Second Reading of the Bill, it was said :

“The Bills Committee felt strongly that there should be an independent appeal
procedure to replace the present arrangement for appeals to be made to the
Governor. The proposed Appeal Board should be independent from the
Administration, be able to hear an appeal quickly and deliver a pre-event
decision, that is, before the public gathering is scheduled to take place. After
careful consideration, we have agreed to provide for the establishment of the
Appeal Board on Public Meetings and Processions and have accepted the
suggestion of the Bills Committee to appoint a retired judicial officer to be
Chairman of the Board.”
 - 27 -

60. As can be seen from sections 16, 44 and 44A, the Appeal
Board with the composition outlined by the Secretary was indeed
established under the Ordinance after the amendments were passed into law.

Two competing concerns

61. As the long title of the Ordinance expressly says, the object
and purpose of the Ordinance are, relevantly, the maintenance of public
order, and the control of meetings, processions, unlawful assemblies and
riots. In particular, section 9(1)51 highlights the importance of the interests
of national security, public safety, public order and the protection of the
rights and freedoms of others, in the context of regulating and controlling
the holding of public meetings (and public processions). These are
important matters, especially when Hong Kong has at different stages of its
history seen mass public meetings and demonstrations involving tens if not
hundreds of thousands of people. Given Hong Kong’s small geographical
size and crowded urban condition, concerns of public safety, public order
and the protection of the rights and freedoms of others, not to mention the
interests of national security where applicable, have always been important
and proper issues that require serious consideration and addressing.

62. Equally importantly, the rights to freedom of expression,

peaceful assembly and demonstration are important fundamental rights.
Back in 1995, those were particularly significant and sensitive rights, as
Hong Kong was only two years away from 1997.

63. The relevant provisions in the Ordinance no doubt represent a

considered balance between these two competing and equally valid
concerns that the legislature has sought to address. The resulting

51
See also sections 6(1) and 14(1) relating to public gatherings and public processions.
 - 28 -

notification regime comprises, among other things, a ban of all meetings of

more than 50 people absent notification or if prohibited; the power to
prohibit but only on specific grounds and as a last resort; an appeal
mechanism against a prohibition; a carefully chosen Appeal Board which is
“independent, effective and able to command trust”;52 a requirement that the
appeal be heard “with the greatest expedition possible” before the intended
meeting date so as not to “frustrate” the holding of the meeting; a “final”
determination by the Appeal Board; and criminal sanctions for non-
compliance. It can be fairly said that the regime represents a carefully
considered scheme designed to strike a proper balance between the two
concerns outlined above.

The strong emphasis on time

64. The strong emphasis on time regarding the giving of
notification of an intended meeting, the notification of a prohibition, and the
hearing and disposal of an appeal, coupled with the express provision that
the determination of the Appeal Board is “final”, is highly indicative of a
statutory intent to ensure that everyone – the organiser of the intended
meeting, the police, the intended participants of the proposed meeting, and
the public at large – clearly knows where they stand in relation to the
proposed meeting before the scheduled date for its holding. All this makes
sense.

65. If a meeting is not prohibited or is allowed by the Appeal

Board to proceed, both the organisers and those intending to join the
meeting will know for sure that they can hold and join the meeting, so long
as any conditions or measures required by the police are complied with. On
the other hand, if a meeting is prohibited and an appeal (if any) is

52
Report of the Bills Committee dated 4 July 1995, [10].
 - 29 -

unsuccessful, likewise, everyone concerned will know that the meeting

cannot be lawfully held. There is certainty for everyone, and public order,
public safety, rights and freedoms of others as well as the interests of
national security (where relevant) are protected at the same time.

The offence

66. Situating the offence-creating provisions (that is, section 17A(2)

and (3)) in the above context and as part of the notification regime under the
Ordinance, one can immediately see the purpose and object of the offence.
It is there to back up a prohibition made under the notification regime
which is not overturned by the Appeal Board on appeal (if any). A
prohibition without criminal sanction for its defiance is one without teeth,
the inevitable consequence of which is to jeopardise the interests of national
security, public order, public safety and the rights and freedoms of others
(where relevant).

67. Zooming in on the very question that this appeal raises, if an

offence under section 17A(3) permits 53 a defendant to re-open in the
prosecution the question of the validity of a prohibition even though it has
been upheld by the Appeal Board, this would certainly weaken the authority
of a prohibition and might encourage people to hold and attend the public
meeting despite the prohibition, in the hope that in any subsequent criminal
prosecution they would succeed in challenging the legality of the
prohibition. This would in turn lead to uncertainty and confusion among
members of the public as to whether they could or could not attend the
intended public meeting. Nor would the police know whether they could
lawfully arrest or take other enforcement actions against those assembling

53
whether by way of a constituent element of the offence or by way of a “lawful
authority or reasonable excuse” defence as provided under section 17A(3)(a).
 - 30 -

in spite of the prohibition. All this would be to the detriment of the

protection of any relevant interests of national security, public order, public
safety or the protection of the rights and freedoms of others. One therefore
asks, rhetorically, whether that could have been the true legislative intent,
despite all that had been said and debated during the legislative process
regarding striking a proper balance between upholding fundamental
freedoms and protection of public order etc, as well as the promotion of
certainty and so forth.

The Appeal Board

68. The requirement that the Chairman of the Appeal Board shall
be a retired professional judge or judicial officer is telling. Indeed, section
43(2)(a) refers to a retired Justice of Appeal of the Court of Appeal or a
retired Judge of the Court of the First Instance. At the minimum, section
43(2)(c) requires someone who has served for more than ten years as a
magistrate but who is no longer serving as a magistrate to chair the Board.
Such a stringent qualification requirement for the Chairman of the Board,
who sits with three non-government members and enjoys a casting vote,
suggests a legislative intent that the decision of the Appeal Board should
carry authority and weight, and more importantly, an assurance of
correctness of its decision, so that everybody, as mentioned, can be sure as
to what the legal position of the proposed meeting is before the scheduled
date of its holding. This suggests that, as discussed below, judicial review
aside, the determination of the Appeal Board is intended to be “final”;54 so
that it cannot be reopened in a criminal prosecution under section 17A(3)(a)
for contravention of a prohibition even though, by definition, a prohibition
restricts fundamental rights. All this accords well with the known intention

54
Section 44A(7), see below.
 - 31 -

behind the new appeal mechanism that “the appeal body should be
independent, effective and able to command trust”.55

“final”

69. Section 44A(7) of the Ordinance specifically says that the

decision of the Appeal Board shall be “final”. As a matter of proper
interpretation, the word must be given a meaning. It is common ground that
despite the use of the word “final”, the Appeal Board’s decision is always
subject to judicial review. By definition, a prohibition restricts people’s
rights to freedom of assembly, expression and demonstration, which are
constitutional rights. It is therefore only right that the finality provision in
section 44A(7) should be construed to be subject to the right to apply for
judicial review to challenge the prohibition.56

70. Indeed, even if the legislative intent were otherwise (as

evinced by the use of extremely clear language), given the constitutional
guarantee to access to the courts in article 35 of the Basic Law, the finality
provision in section 44A(7) would still be read down to mean subject to
judicial review, unless the restriction on access to the courts could be
justified.

71. However, what is important here is not to fall into the mistake
of thinking that since the legislature may not be able to create a finality
provision which ousts judicial review and therefore “final” in section 44A(7)
does not really mean final so far as judicial review is concerned, the word
also does not mean what it says when it comes to a collateral challenge to
the validity of the prohibition in a criminal prosecution under section

55
Report of the Bills Committee dated 4 July 1995, [10].
56
R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491; R
(Woolas) v Parliamentary Election Court [2012] QB 1.
 - 32 -

17A(3)(a). While the former may be something quite outside what the
legislature may do and it has to accept that, the latter is perfectly within the
legislature’s competence and where good reasons exist, something which it
may always do. In the present case, it is difficult to discern any reason for
the legislature to intend that the validity of a prohibition can be re-opened
by a criminal court in a prosecution under section 17A(3), particularly given
the context and background of the amendments to the Ordinance. Indeed to
so construe the word “final” would deprive the word of any practical
meaning at all. The Hansard material clearly shows that the legislature was
fully aware of the fundamental rights involved when debating about the
appeal mechanism, and as observed above, the resulting regime, including
the finality provision in section 44A(7), represents a carefully considered
balance struck between upholding those fundamental rights and achieving
the object of the Ordinance to regulate and control public meetings in
protection of public order etc.

72. The above discussion also answers the point that once it is
accepted that a successful judicial review would trump a criminal
prosecution under section 17A(3)(a), the advantage of promoting certainty
and avoiding confusion etc offered by a construction that renders the
legality of the prohibition an irrelevant matter in the criminal prosecution is
more illusory than real. Granted that the Appeal Board’s determination
being subject to judicial review will necessarily undermine the advantage of
certainty etc, it is, as explained, something beyond the legislature’s power
and control. It does not follow that when it comes to something within its
power, such as prescribing the elements of the offence or defining the scope
of the statutory defence, the legislature does not want to do what it can to
promote certainty and avoid confusion, in protection of public order etc. It
clearly does.
 - 33 -

“with the greatest expedition possible”

73. The requirement under section 44A(6) that the Appeal Board
shall consider and determine an appeal “with the greatest expedition
possible” so as to ensure that the appeal is not “frustrated” by reason of the
decision of the Board being given only after the proposed meeting date is
again indicative of a legislative intent that the Board’s decision is “final”
(leaving aside judicial review). If this was not so, and if at a criminal
prosecution the question of whether the prohibition had been validly made
could still be re-visited despite its having been upheld by the Board, there
would be very little reason for requiring the Board to decide the appeal
before the date of the proposed meeting in the first place. Nor would the
holding of the meeting be “frustrated” by the Board rendering its decision
only after the date of the intended meeting. For the practical effect of such
a contention is that the criminal court – very likely a magistrates’ court –
would be the final arbiter of the matter, rather than the Appeal Board. This
would, in turn, make the stringent qualification requirements for the
Chairman of the Appeal Board, as part of the statutory design under the
Ordinance, a rather odd and indeed unnecessary one.

74. The stipulation that the decision of the Appeal Board, to be

given before the date of the intended meeting, is final has the advantage of
informing all members of the public where they stand in relation to the
meeting. Given the purpose of the Ordinance, that is, the protection of
public order, public safety and so forth, this is an advantage which the
legislature must have firmly borne in mind when designing the scheme
under the Ordinance, including the enforcement provisions.
 - 34 -

Appeal, judicial review and the rule of law

75. For most people, a “final” determination by the Appeal Board

upholding a prohibition would be the end of the matter. But if the
organisers do not agree with the Appeal Board’s decision, they may always
apply for judicial review against it. No doubt, such a course would
normally take time, and they would have to make up their minds as to
whether they would wish to risk prosecution by proceeding with holding the
prohibited meeting in the meantime. The same also applies to others who
would otherwise want to join the meeting. Although the appellant has
apparently not been prepared to accept so much, it is quite plain that if the
prohibition or the decision of the Appeal Board is subsequently quashed by
the High Court in judicial review, any criminal prosecution would fail.57 It
is difficult to imagine a legislative intent under section 17A(3) that a
conviction may be based merely on a formally valid prohibition at the time
of the commission of the alleged offence, even though by the time of the
criminal trial, it has been quashed by judicial review. This is especially so
when a prohibition in the present context necessarily affects people’s
fundamental rights to freedom of assembly, expression and demonstration.

76. If the organisers do not challenge the Appeal Board’s decision

by means of judicial review, it is safe to assume that the legislature would
not expect them to proceed with holding the proposed meeting, nor that
other people would want to join or participate in the prohibited meeting.
And if somehow they do and are prosecuted, there is little injustice if the

57
Wicks at p 117C/D : “On the other hand, the statute may upon its true construction
merely require an act which appears formally valid and has not been quashed by
judicial review.” (emphasis added) Mr Tam SC, for the appellant, would only say at
the hearing that upon a successful judicial review, the prosecution would probably be
dropped.
 - 35 -

legislature does not intend the criminal court to re-visit the validity of the
prohibition.

77. In Boddington, the House of Lords was very much concerned

by the fact that the byelaw in question was directed at the general members
of the public, and the first time a member was made aware of it and had the
opportunity to challenge it would likely be when he or she was prosecuted
before a criminal court for breaching the byelaw. The present case is,
however, far from that situation. In the context of public meetings falling
within the ambit of the Ordinance, the public or intended participants of a
proposed meeting are likely to be well aware of a prohibition. Likewise,
any decision of the Appeal Board is likely to be well publicised. If the
organisers want to challenge the prohibition by way of judicial review, they
can do so and, in the nature of things, this would also be known to the
public.

78. Therefore, although this is not a case like Wicks where the
enforcement notice was directed at a particular individual (namely, the
defendant) affording him an opportunity to challenge it before any
prosecution, the prohibition here is directed at the organisers who may
appeal it to the Appeal Board, and subsequently challenge any adverse
outcome in the High Court by way of judicial review. It is legitimate to
assume that the legislature intends and expects the intending participants of
the proposed meeting to rely on the organisers to challenge the prohibition.
After all, the organisers are in the best position to know their own ability
and capacity to hold the meeting, what measures they can offer to the police
to ensure public order etc, what conditions required by the police are within
their ability and power to comply with, and so forth. If the organisers do
not appeal a prohibition and somehow the meeting is still proceeded with, a
participant at the meeting who has been arrested and/or fears prosecution, or
 - 36 -

is in fact prosecuted, may still resort to judicial review to challenge the

prohibition. Of course, he or she must act promptly given the time limit for
making judicial review applications, but then the court always has the
power to extend time if good reason is shown.58 I do not see standing as a
problem as, by definition, these are people who have been arrested and/or
are fearing prosecution, or are being prosecuted for violating the prohibition
and therefore have a sufficient interest in challenging the prohibition by
way of judicial review, over and above other members of the general
public.59

79. Thus analysed, a balance is well struck between achieving the

object of the Ordinance (that is, protecting the interests of national security,
public safety, public order or the rights and freedoms of others) and
upholding the rights to freedom of assembly, expression and demonstration,
and also between the need for effective enforcement of a prohibition on the
one hand and upholding the rule of law by affording those affected by it a
direct or indirect means to challenge the prohibition on the other.

80. In summary, as regards the rule of law concerned, it has to be

remembered that the Ordinance provides for a very speedy and effective
means of reviewing a prohibition by the Appeal Board. Furthermore, the
decision of the Appeal Board is always subject to judicial review. Although
those who may appeal to the Appeal Board are essentially limited to the
persons organising the proposed meeting, they are the very persons who are
expected to challenge a prohibition if they disagree with it. Moreover, it is
quite unlikely that if the organisers do not challenge a prohibition and no
longer proceed with holding it, other intending participants of the meeting

58
Order 53, rule 4(1), the Rules of the High Court (Cap 4A).
59
Cf Leung v Secretary for Justice, [2006] 4 HKLRD 211. The present situation is an
a fortiori one.
 - 37 -

would still go ahead with the meeting. And if they do, given the absence of
an organiser, the concern of public order or public safety etc would be even
greater, and there would be all the more reason for enforcing a prohibition
by criminal sanction. In the quite unlikely event that the meeting still
proceeds and results in prosecution, those prosecuted may still apply for
judicial review against the prohibition and ask for an adjournment of the
criminal prosecution pending the outcome of their application.60

81. I am not attracted by the suggestion that since only the

organisers can resort to the appeal mechanism under the Ordinance but not
a mere intending participant at the meeting, only the former but not the
latter should be disallowed from mounting a collateral challenge against the
prohibition in a criminal prosecution. Obviously, this suggestion would
result in the risk of inconsistent prosecution outcomes between the
organisers and the mere participants, which would neither be fair nor
conducive to promoting the object of the Ordinance to protect public order
etc. It is difficult to justify any such inconsistency in terms of the statutory
intent, especially when, as explained, the intending participants are
expected to rely on the organisers to appeal the prohibition, and more
importantly, both the organisers and the participants can resort to judicial
review to challenge the prohibition. Nothing in the Ordinance indicates that
the suggested distinction between the organisers and the participants
represents the legislative intent behind the offence-creating provisions.

Construction of the provisions

82. Bearing all this in mind, I would construe section 17A(2) when
it refers to a public meeting taking place “in contravention of section 7” to
mean a public meeting of over 50 persons taking place despite a formally

60
Quietlynn, at p 131E.
 - 38 -

valid prohibition by the Commissioner under section 9. It is a formally

valid prohibition “under section 9”61 if on the face of it, it complies with the
requirements of that section, and has not been reversed by the Appeal Board
on appeal or quashed by judicial review before the conclusion of the
criminal proceedings. In my view, “prohibited by the Commissioner of
Police under section 9” in section 7(1)(b) is, as a matter of language
construed in the light of the purpose and context of the Ordinance explained
above, capable of bearing and does bear such a meaning.

83. Likewise, I would further construe “without lawful authority or

reasonable excuse” in section 17A(3)(a) to not include the mere fact that the
prohibition may be liable to be quashed by judicial review but has not been
so quashed, whether on conventional public law or other non-constitutional
grounds, or on constitutional grounds.

84. For these reasons, in a prosecution under section 17A(3)(a), the

validity of the prohibition is not relevant to any issues facing the criminal
court and for that reason, no collateral challenge to its validity may be
mounted before that court. In this regard, there is no difference between a
collateral challenge based on conventional public law or other non-
constitutional grounds and one that is founded on constitutional grounds.

85. By the same token, in a prosecution for incitement to commit a

section 17A(3)(a) offence, no such collateral challenge may be made.

Conclusion on the first certified point of law

86. I would answer the first certified point of law in the negative.

61
Section 7(1)(b).
 - 39 -

The second certified point of law

87. It is therefore unnecessary to answer the second certified point

of law on the approach to determining a collateral challenge, and I do not
wish to do so. However, I should not be taken to be agreeing with the
conclusion reached by the judge on the question of “operational
proportionality” on the facts of the present case.

No other constitutional challenges

88. For the sake of completeness, it should be noted that in this

case, there is no constitutional challenge against the offence created under
section 17A(2) and (3)(a) of the Ordinance or the underlying notification
regime under the Ordinance.62 In other words, there is no suggestion, for
instance, that if (as I have held) the essential elements of the offence only
require a formally valid prohibition, the offence is unconstitutional as it
disproportionately restricts the right to freedom of assembly etc. If there
had been any such challenge before the criminal court hearing the
prohibition of the offence, that court, as explained,63 would necessarily be
seized of the issue and have to decide it. However, no such challenge has
ever been made, and it is therefore not something that the criminal court or
this court need deal with.

Disposition

89. There being no longer any other grounds to challenge the

conviction, I would allow the appeal and restore the conviction of the
respondent. The judge has not dealt with the respondent’s appeal against
sentence, despite hearing submissions on it. I would remit the appeal
against sentence to the judge for determination.

62
This is not surprising given what this court has decided in Leung Kwok Hung.
63
See [37] above.
 - 40 -

Mr Justice Ribeiro PJ:

90. I have had the advantage of reading in draft the judgment of

the Chief Justice. I respectfully agree with his conclusion that the appeal
should be allowed, the respondent’s conviction restored and her appeal
against sentence remitted to the Judge for determination. However, I have
arrived at that conclusion by a different route. I shall therefore set out my
reasoning and indicate where, with the greatest respect, I differ from his
Lordship.

A. The issues

A.1 The questions arising

91. In this appeal, the Court has occasion to consider whether and
on what basis an accused may be permitted to challenge by way of defence
in criminal proceedings the lawfulness of an allegedly pertinent
administrative act or order. In this case, that act involves the prohibition by
the Commissioner of Police (“CP”) pursuant to powers under the Public
Order Ordinance (“POO”)64 of a public assembly proposed to be held at
Victoria Park on 4th June 2021. The respondent, Ms Chow Hang Tung
(“Chow”), seeks to challenge the lawfulness of that prohibition by way of
defence in the prosecution she faces for inciting others to take part in that
prohibited meeting (alleged to constitute an unauthorized assembly)
contrary to section 17A(3)(a) of the POO.

92. Leave to appeal was granted in respect of the following

questions:

“(1) In a prosecution for an offence of incitement to knowingly take part in an

unauthorized assembly contrary to Common Law and section 17A(3)(a)

64
Cap 245.
 - 41 -

of the Public Order Ordinance, Cap 245 and punishable under section
101I of the Criminal Procedure Ordinance, Cap 221, is it open to a
defendant to raise by way of defence the legality of the police’s
prohibition of the subject public meeting which was subsequently upheld
by the Appeal Board on Public Meetings and Processions (‘the Appeal
Board’)?

(2) In the event that the answer to the above question is in the affirmative,
what is the correct approach that the court should take in considering a
defendant’s challenge to the legality of the police’s prohibition and of the
subsequent determination by the Appeal Board?”

93. Such a challenge to the prohibition’s legality may be based on

non-constitutional grounds alleging, for instance, that the statutory
requirements were not complied with, or invoking conventional public law
grounds, such as that the decision was ultra vires; arrived at in a
procedurally unfair way; was Wednesbury unreasonable, and so forth. I
shall call such a challenge a “collateral attack” to distinguish it from a
challenge mounted on constitutional grounds (a “constitutional challenge”)
in which it is argued that the prohibition unlawfully restricts a guaranteed
constitutional right and is thus constitutionally invalid.

94. The question arises as to whether the approach in law differs

depending on whether the challenge is a collateral attack or a constitutional
challenge. Hence, in my view, the certified questions may appropriately be
elaborated upon as follows:

(a) Is it open to Chow to mount a collateral attack on the

prohibition by way of defence in the criminal proceedings? If
so, what are the principles for determining when such a
challenge is permissible and whether it succeeds?

(b) Similarly, is it open to Chow to mount a constitutional

challenge on the prohibition by way of defence in the criminal
proceedings? And if so, what are the principles for
 - 42 -

determining when such a challenge is permissible and whether

it succeeds?

In a particular case, a challenge might be mounted on both grounds.

A.2 The context: two different processes

95. The aforesaid questions arise in the context of two separate

events or processes. The first involves the process under the POO which
led to the CP’s prohibition of the gathering by giving the organizers notice
to that effect (“the prohibition order”). I shall call this “the decision
process”. The second process involves the criminal proceedings against
Chow before the Magistrate65 and, on appeal, before Barnes J.66

B. The decision process

96. The decision process occurred within the framework of the

POO. A public meeting is permitted to take place only if the CP has been
notified of the intended meeting and has not prohibited it from being held,67
the duty to give such notice (with prescribed particulars) resting on the
organizers.68

97. In the present case, notice was given on 27 April 2021 by one
Tsoi Yiu-cheong Richard (“Tsoi”), named as the organizer, stating that the
Hong Kong Alliance in Support of Patriotic Democratic Movements of
China (“Hong Kong Alliance”) was the organisation promoting the intended
meeting. Subsequent contacts with the police were conducted by one

65
Ms Chan Wai Mun, Amy [2022] HKMagC 1 (4 January 2022).
66
[2022] HKCFI 3692 (14 December 2022).
67
POO section 7.
68
POO section 8.
 - 43 -

Leung Kam-wai (“Leung”), 69 apparently as Tsoi’s or the association’s

designated representative. The notice stated that the meeting was to take
place from 08:00h to 24:00h on 4 June 2021 in Victoria Park “to
commemorate the 32nd anniversary of ‘June 4’” with between 100,000 and
150,000 persons expected to attend. This was during a period when Hong
Kong and the rest of the world were severely affected by the Covid-19
pandemic.

98. On 25 May 2021, Leung had a meeting with the police and
consequently amended the notice to state that the meeting would only last
from 20:00h to 22:00h, with the earlier and subsequent hours spent in
preparing and then cleaning up the venue. The estimated number of
expected participants was revised downwards to 40,000 to 60,000 and the
number of marshals raised from 50 to 100 to 70 to 120.

99. POO section 9(1) empowers the CP to prohibit “the holding of

any public meeting notified under section 8 where he reasonably considers
such prohibition to be necessary in the interests of national security or
public safety, public order or the protection of the rights and freedoms of
others” (“the specified interests”). Section 9(2) requires written notice of
such prohibition to be given to the person who gave the section 8 notice and
must “state the ground or grounds on which the prohibition is considered to
be necessary and the reasons for the [CP’s] opinion as to those grounds”.
POO section 9(4) precludes the exercise of the power to prohibit if the
specified interests can adequately be met by imposing appropriate
conditions:

“The Commissioner of Police shall not exercise the power conferred by

subsection (1) to prohibit the holding of a public meeting in any case where he
reasonably considers that the interests of national security or public safety, public

69
POO section 8(4) providing for there to be persons acting in place of the organizer.
 - 44 -

order or the protection of the rights and freedoms of others could be met by the
imposition of conditions under section 11(2)70.”

100. A point to which I shall return71 is that the wording of POO

sections 9(1) and 9(4) identifying the specified interests closely resembles
the wording of Article 17 of the Hong Kong Bill of Rights (“BOR17”)
which provides:

“Right of peaceful assembly

The right of peaceful assembly shall be recognized. No restrictions may be

placed on the exercise of this right other than those imposed in conformity with
the law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of
public health or morals or the protection of the rights and freedoms of others.”

101. Thus, the grounds upon which the CP is authorised to prohibit

public assemblies closely track the grounds upon which BOR17 permits
proportionate restrictions on the right of peaceful assembly.

102. On 27 May 2021, exercising his powers under section 9, the

CP gave notice to Tsoi and the Hong Kong Alliance, cc Leung, that the
proposed June 4 meeting was prohibited since he considered this necessary
“for maintaining public safety and public order, and protecting the rights
and freedom of others after taking into account” the need to prevent the
spread of Covid-19. The prohibition order referred to the Prevention and
Control of Disease (Prohibition on Group Gathering) Regulation 72 which
then prohibited gatherings of more than four persons in any public place
and noted that Covid-19 was “a highly infectious and potentially fatal
disease, with [a] long incubation period and asymptomatic carriers”; and

70
Section 11(2) provides that the CP “may, where he reasonably considers it necessary
in the interests of national security or public safety, public order or the protection of
the rights and freedoms of others, impose conditions in respect of any public meeting
notified under section 8 [subject to an inapplicable exception]”.
71
In Section G.4 below.
72
Cap 599G.
 - 45 -

stated that Hong Kong’s response level was still at the highest Emergency
Level indicating a high and imminent risk of community outbreaks; that the
Department of Health had advised the reduction of social contact; that
public meetings were high-risk activities posing serious threats to the lives
and health of all citizens; and that conditions which might be imposed
would not provide sufficient protection.

103. POO section 16(1) gives a right of appeal to the Appeal Board
against a prohibition order to “A person, society or organization (a) named
in a notice given under section 8 …; (b) to whom a notice of prohibition is
given under section 9; ... who is aggrieved by the decision of the CP...” Tsoi,
the Hong Kong Alliance as the relevant organization and Leung came
within section 16(1). Chow did not. The Appeal Board is empowered to
confirm, reverse or vary the prohibition, objection or condition appealed
against.73

104. Leung lodged an appeal and attended a hearing on 29 May

2021 where he made representations to the Appeal Board against the
prohibition. He was unsuccessful and the Board confirmed the CP’s
decision stating that, given the currency of the Covid-19 pandemic, the
proposed meeting would pose a serious threat to the general public, public
order and public safety. It observed that the pandemic was not yet under
control in neighbouring areas and that the World Health Organization had
pointed out that mass gatherings “would intensify the spreading of the
virus”; that restrictions on gathering were still in force in Hong Kong; and
“the progress of vaccination seemed to be less than satisfactory”. It stated
that Leung had “failed to convince the Appeal Board that the anti-virus
measures suggested by them would be practical.”

73
POO section 44(4).
 - 46 -

105. On the same day, the Security Bureau publicised the

prohibition. The press release advised that the meeting would constitute an
unauthorized assembly and that taking part in it or advertising or
publicising it would be an offence under POO section 17A. Leung, Tsoi
and the Hong Kong Alliance took no further steps to challenge the
prohibition.

106. Thus, the decision process came to an end on 29 May 2021.

The prohibition order took effect and no meeting was held at Victoria Park
on 4th June 2021.74

C. The criminal proceedings

C.1 The offence charged and applicable POO provisions

107. The proceedings against Chow were occasioned by online

messages she had posted on Facebook and Twitter on 29 May 2021 and a
newspaper article she had published in Ming Pao on 4 June 2021
concerning the marking of the June 4 anniversary. Those publications led to
her being charged with inciting others, without lawful authority or
reasonable excuse, knowingly to take part in a public meeting which was an
unauthorized assembly by virtue of section 17A(3)(a) of the POO. That
provision relevantly states:

“Where any public meeting ... is an unauthorized assembly by virtue of

subsection (2) –

(a) every person who, without lawful authority or reasonable excuse,

knowingly takes or continues to take part in or forms or continues to form
part of any such unauthorized assembly ... shall be guilty of an offence
and shall be liable ... on summary conviction, to a fine at level 2 to
imprisonment for 3 years.”

108. “Subsection (2)” (ie, section 17A(2)) relevantly provides:

74
Reasons for Verdict (RfV§58); Judgment (J§34).
 - 47 -

“Where –
(a) any public meeting ... takes place in contravention of section 7 ...;
the public meeting, ... shall be an unauthorized assembly.”

109. And section 7 materially provides:

“(1) Subject to this Ordinance, a public meeting may take place if, but only if,
–

(a) the Commissioner of Police is notified under section 8 of the

intention to hold the meeting; and

(b) the holding of the meeting is not prohibited by the Commissioner

of Police under section 9.”

110. As has already been noted, section 9(1) empowers the CP to

prohibit public meetings if he reasonably considers prohibition necessary in
the specified interests, subject to section 9(4) which states that he shall not
exercise that power if he reasonably considers that the specified interests
could be met by the imposition of appropriate conditions.

111. The prosecution’s case 75

was that Chow knew that the
proposed meeting had been prohibited by the CP whose decision had been
upheld by the Appeal Board, but that she had unlawfully incited other
persons without lawful authority or reasonable excuse knowingly to take
part anyway in an unauthorized assembly “namely the prohibited Proposed
Public Meeting” at Victoria Park on 4 June 2021.76

C.2 The proceedings before the Magistrate

112. Chow’s trial before the Magistrate began on 5 October 2021,

some four months after the decision process had ended. She raised a
number of issues denying guilt, one of her main contentions being that the
publications did not constitute an incitement to commit a section 17A
75
“Brief Facts” dated 2 July 2021, §14.
76
That meeting was not in fact held: Reasons for Verdict (RfV§58).
 - 48 -

offence but merely encouraged others to light a candle to mark the June 4
anniversary. However, the Magistrate held that on the evidence, readers of
her publications “were asked to persist in attending the Hong Kong people’s
annual candlelight vigil at Victoria Park on 4 June organized by the Hong
Kong Alliance”77. That finding was later upheld on appeal.78

113. Of immediate importance is the Magistrate’s acceptance of the

prosecution’s submission that:

“... it was not open to the defendant to challenge the validity and justifications of
the Prohibition Order in a criminal court by way of defence because such
challenges, in particular those raised by the defendant were grounds for a judicial
review, which should be dealt with by the Appeal Board and examined and
resolved by way of judicial review rather than by a criminal court.”79

114. The Magistrate also held that the validity of the CP’s decision
was not a necessary element in the offence 80 and that, as a matter of
construction, the legislative intention, manifested by the existence of an
appeal procedure and by POO section 44A(7) which provides that the
determination of an appeal by the Appeal Board shall be “final”, was to
exclude such challenges.81

115. It was on that basis that the collateral attack and constitutional
challenge were rejected without being substantively addressed.

C.3 The appeal proceedings

116. Barnes J disagreed with the Magistrate’s exclusion of the

challenges to the prohibition’s validity. She noted that Chow had raised a

77
RfV§65.
78
J§66.
79
RfV§31.
80
Ibid.
81
RfV§33.
 - 49 -

constitutional challenge but held that there was insufficient evidence to

draw a conclusion on whether the ban was disproportionate in the then
current state of the pandemic.82

117. Her Ladyship allowed the appeal on the basis that the CP’s
decision to prohibit was invalid because he had failed to comply with POO
section 9(4). She accepted the appellant’s submission that certain
conditions for holding the meeting:

“... could obviously be taken into account, such as, ... limiting the time slots for
admission, the number of participants, setting up multiple venues to thin out the
crowd, requiring participants to scan the LeaveHomeSafe app and wear a mask
and imposing a ban on eating, so as to control the actual risk of spreading the
virus.”83

118. Barnes J held that the CP was under a positive duty “seriously
[to] initiate consideration on or propose” those measures. Failure to do so
amounted to non-compliance with section 9(4) so that the CP was thereby
precluded from prohibiting the meeting. The Appeal Board’s decision
suffered from a like deficiency. Her Ladyship concluded:

“Taking all the above into consideration, it is my view that the evidence did not
show that the police had discharged their positive duty under section 9(4) of the
Public Order Ordinance by considering that apart from the ban, whether there
were other feasible measures which would permit and facilitate the holding of the
meeting. Both the Appeal Board and the trial magistrate accepted the pandemic
consideration to be the reason for issuing the Prohibition Order, but they also did
not take into account the feasibility of other measures or conditions. Therefore,
the respondent has failed to establish the legality of the Prohibition Order, and I
find that the challenge by the appellant succeeds.”84

I return to consider the learned Judge’s decision further in Section I of this

judgment.

82
J§49.
83
J§60.
84
J§64.
 - 50 -

D. The two processes should not be elided or confused

119. It is self-evident that the two processes are entirely separate

and distinct. They occurred at different times, involved different parties,
differed in their subject-matter, required the application of different legal
principles and produced different outcomes. Chow did not take part in the
decision process. In the criminal proceedings, she was not concerned with
re-opening, appealing or setting aside the CP’s prohibition order. Her aim
was to mount a defence which would have no effect on the prohibition order
which had been issued four months before the magistracy trial and 18
months before the appeal.

120. It is therefore of basic importance that the legal aspects of the

two processes should not be elided and confused. With respect, such
confusion arose when the Magistrate held that it was not open to Chow to
challenge the validity of the prohibition by way of defence “because such
challenges, ... were grounds for a judicial review, which should be dealt
with by the Appeal Board and examined and resolved by way of judicial
review rather than by a criminal court.” 85 It was misplaced to deprive
Chow of an opportunity to raise an important aspect of her defence on the
basis that she should instead have had her challenge dealt with by the
Appeal Board and by judicial review as part of the decision process to
which she had not been a party. Such an approach is, with one exception
referred to in Section E below, fallacious. That erroneous elision appears
repeatedly in the appellant’s submissions on the present appeal. For
instance, the appellant submits that “[the] proper forum for [a challenge to

85
RfV§31.
 - 51 -

the legality of the CP’s decision] is via an appeal to the Appeal Board and
by judicial review.”86 Elaborating, the appellant’s written case states:

“... a CP’s decision is a constrained one and subject to dual supervision by the
Appeal Board and by judicial review. Thus, if a CP’s decision is upheld by the
Appeal Board and is not quashed in judicial review, it must follow that such
decision is or should be proportionate and lawful as the issue has been addressed.
In those circumstances, there is no basis for a defendant to challenge such
decision in the subsequent criminal trial.”87

121. It confuses the two processes to suggest that the CP’s

successful defence of the prohibition order before the Appeal Board and/or
on a possible judicial review (to which Chow was not a party), removes any
basis for Chow to raise a challenge by way of defence in her own criminal
trial (to which the CP and the Appeal Board were not parties).

E. “Same person” cases

122. The exception referred to above involves the situation where

the person seeking to mount a collateral attack questioning the lawfulness
of an administrative order by way of criminal defence is the very person
against whom that order was specifically directed as intended by the statute
pursuant to which the order was made. I shall call these “same person”
cases. This discussion is confined to collateral attacks, leaving aside for the
present constitutional challenges.

123. In same person cases, the order sought to be impugned is, in

accordance with the legislative purpose of the enabling statute, directed
distinctively at the individual or individuals concerned (and not generally at
members of the public or members of a class of individuals) requiring them
to comply with the order. Such individuals must realise that they will face
prosecution if the order is contravened. If aggrieved by the order, it is
86
Appellant’s Written Case (“AWC”) AWC§4.
87
AWC§19.
 - 52 -

reasonable to expect those persons to challenge it by an available appeal

procedure and/or by judicial review. Where such a challenge has been
unsuccessful (or not resorted to) and they go ahead with contravening the
order, the authorities show that an attempt by them to mount a collateral
attack against the order’s legality by way of defence in a consequent
prosecution is generally held to be precluded as a matter of statutory
construction.

124. For example, in R v Wicks, 88 a local planning authority had

served an enforcement order on the defendant requiring him to remove
certain parts of a building erected in breach of planning control. The
defendant appealed to the Secretary of State without success but persisted in
failing to comply with the notice. When prosecuted, he sought to challenge
the enforcement order on the basis that it had been issued in bad faith and
motivated by immaterial considerations. Lord Hoffmann noted the “same
person” aspect of the case, observing:

“As Keene J. said in the Court of Appeal, the owner has been served with the
notice and knows that he has to challenge it or comply with it. His position is
quite different from that of a person who has contravened a byelaw, who may not
have heard of the byelaw until he contravened it.”89

125. The contrasting approach in a byelaws case (as opposed to a

same person case) was highlighted in Boddington v British Transport
Police,90 where, pursuant to new byelaws, it was made an offence to smoke
in a railway carriage in which a notice prohibiting smoking was displayed.
Such byelaws were of a general character and directed at all users of the
railway. The defendant found that “no smoking” notices had been posted in
every carriage and went ahead with smoking a cigarette anyway. He was

88
[1998] AC 92.
89
Ibid at 122.
90
[1999] 2 AC 143.
 - 53 -

convicted by the Magistrate and his case eventually reached the House of
Lords, one of the certified points of law being “whether a defendant could
raise as a defence to a criminal charge a contention that a byelaw, or an
administrative decision made pursuant to powers conferred by it, is ultra
vires.”91 One of his arguments was that the power to “regulate” smoking on
trains did not extend to imposing a ban throughout the train.

126. Lord Irvine of Lairg LC explained the principle as follows:

“The particular statutory schemes in question in Reg. v. Wicks [1998] A.C. 92 and
in the Quietlynn case [1988] 1 QB 114 did justify a construction which limited
the rights of the defendant to call the legality of an administrative act into
question. But in my judgment it was an important feature of both cases that they
were concerned with administrative acts specifically directed at the defendants,
where there had been clear and ample opportunity provided by the scheme of the
relevant legislation for those defendants to challenge the legality of those acts,
before being charged with an offence.

By contrast, where subordinate legislation (e.g. statutory instruments or byelaws)

is promulgated which is of a general character in the sense that it is directed to
the world at large, the first time an individual may be affected by that legislation
is when he is charged with an offence under it: so also where a general provision
is brought into effect by an administrative act, as in this case. A smoker might
have made his first journey on the line on the same train as Mr. Boddington; have
found that there was no carriage free of no smoking signs and have chosen to
exercise what he believed to be his right to smoke on the train. Such an
individual would have had no sensible opportunity to challenge the validity of
the posting of the no smoking signs throughout the train until he was charged ....
In my judgment in such a case the strong presumption must be that Parliament
did not intend to deprive the smoker of an opportunity to defend himself in the
criminal proceedings by asserting the alleged unlawfulness of the decision to
post no smoking notices throughout the train.”92

127. Boddington was therefore not a “same person” case and the
appellant was not precluded from raising a collateral attack challenging the
vires of the byelaw by way of defence, although that challenge was held to
be unsuccessful.

91
Ibid at 149-150.
92
Ibid at 161-162.
 - 54 -

128. An example of a “same person” approach in our courts is

HKSAR v The Incorporated Owners of No 10 Bonham Strand. 93 The
defendants there failed to comply with a Fire Services Department direction
specifically requiring them to install a sprinkler system in their premises
and did not seek to challenge that direction until they were prosecuted and
convicted before the Magistrate for such failure. They sought to argue on
appeal that it was an unreasonable direction because the premises were so
small. McMahon J held that that argument was not open to them, stating:
“...unlike the position in Boddington’s case where the defendant was
unaware of the particular order or law until or shortly before he committed
and was charged with the offence” the defendant was given ample time by
the Ordinance and direction issued to challenge the direction in the High
Court which was a more appropriate forum.94

129. HKSAR v Sky Wide Development Ltd,95 provides an extreme

example. The appellants had previously applied to the Court of First
Instance and the Court of Appeal for judicial review of demolition orders
issued against them by the Building Authority, arguing that those orders
were too vague to be complied with, but all the applications were dismissed.
When they were summonsed for failing to comply with the orders they
sought to challenge their validity, resurrecting the rejected arguments. They
failed before the Magistrate and on appeal. It would have been startling for
the Magistrate to entertain the challenge on grounds already rejected by the
Court of First Instance and the Court of Appeal.

130. The same person cases may juridically be explained on the

basis of statutory construction. It is held in such cases that the legislative

93
HCMA 239/2004 (28 May 2004), McMahon J.
94
Ibid at §18.
95
[2013] 1 HKLRD 613 at §12.
 - 55 -

intent is for such individuals to have recourse to the means made available
to challenge the orders which had been explicitly directed against them
rather than to launch collateral attacks in subsequent criminal proceedings.
As Lord Hoffmann put it, one must “challenge it or comply with it”. For
the reasons developed below, constitutional challenges are not susceptible
to exclusion by way of such statutory construction. But, as later explained,
that does not mean that the prospects of success of a constitutional
challenge in same person cases are likely to be any greater.

131. The present case is not in the “same person” category.

Although Tsoi and the Hong Kong Alliance were served with notice of the
CP’s prohibition as required by POO section 9(2), the order was not merely
addressed to them, but was directed at the general public (in accordance
with the statutory purposes of that Ordinance) who were informed that the
meeting was an unauthorized assembly and that “no one should take part in
it, or advertise or publicise it, or else he or she may violate the law”96. Thus,
in the present case, as a matter of construction, the “same person” exception
is inapplicable and does not provide a basis for excluding a collateral attack
raised by way of defence on Chow’s part in her subsequent prosecution.

F. Collateral attacks

F.1 A matter of construction

132. Whether a collateral attack on non-constitutional grounds is

open to a defendant in criminal proceedings by way of defence depends on

96
RfV§7.
 - 56 -

the construction of the relevant statute.97 As Lord Hoffmann stated in R v

Wicks:98

“The question must depend entirely upon the construction of the statute under
which the prosecution is brought. The statute may require the prosecution to
prove that the act in question is not open to challenge on any ground available in
public law, or it may be a defence to show that it is. In such a case, the justices
will have to rule upon the validity of the act. On the other hand, the statute may
upon its true construction merely require an act which appears formally valid and
has not been quashed by judicial review. In such a case, nothing but the formal
validity of the act will be relevant to an issue before the justices. It is in my view
impossible to construct a general theory of the ultra vires defence which applies
to every statutory power, whatever the terms and policy of the statute.”

133. In Boddington v British Transport Police, 99 Lord Irvine LC

opined that, apart from the offence-creating provisions of the statute, “any
other relevant statutory provisions” should also be considered.

134. Thus, the statute is construed to determine whether the

legislative intention is to exclude a collateral attack and that the formal
validity of the order challenged suffices to found criminal liability or
whether, on the other hand, the statutory intent is that the order’s validity
may be impugned by way of defence, in which case the challenge has to be
dealt with by the criminal court.

97
Before R v Wicks [1998] AC 92, various distinctions had been suggested in the case-
law for when an order might or might not be challenged by way of criminal defence,
such as distinctions between orders which were nullities because, on their face, they
did not comply with statutory requirements and orders which were only liable to be
quashed on the basis of extraneous evidence; between orders suffering from
substantive as opposed to procedural invalidity; and between void and voidable
orders. Those distinctions gave way to the principle that the susceptibility of an
order to a collateral attack depends on the construction of the relevant statutory
material. However, one rule which was preserved was the long-established rule that
magistrates could and should deal with challenges to the vires of byelaws: Ibid, at
112-117.
98
[1998] AC 92 at 117.
99
[1999] 2 AC 143 at 152: “...whether a public law defence may be mounted to a
criminal charge requires scrutiny of the particular statutory context in which the
criminal offence is defined and of any other relevant statutory provisions.”
 - 57 -

135. But how does one decide, in construing the statute, whether
formal validity is sufficient or whether the order may be impugned? While
Lord Hoffmann notes the impossibility of constructing “a general theory of
the ultra vires defence”, the authorities give some indication of how the
exercise of construction might be approached.

F.2 The construction exercise

136. It is clear that the starting-point is that a defendant should

generally be allowed to raise the defence. In Wicks, Lord Nicholls of
Birkenhead puts it thus:

“Prima facie one would expect, surely, that in the criminal proceedings an
accused should be able to challenge, on any ground, the lawfulness of an order
the breach of which constitutes his alleged criminal offence. That seems the
proper starting point.”100

137. In Boddington, 101 this was considered a strong presumption.

Lord Irvine LC stated:

“...it is well recognised to be important for the maintenance of the rule of law and
the preservation of liberty that individuals affected by legal measures
promulgated by executive public bodies should have a fair opportunity to
challenge these measures and to vindicate their rights in court proceedings. There
is a strong presumption that Parliament will not legislate to prevent individuals
from doing so...”102

138. Lord Steyn favoured permitting the defence to be raised and

having the court decide whether the challenge succeeds:

“There is no good reason why a defendant in a criminal case should be precluded

from arguing that a byelaw is invalid where that could afford him with a defence.
Sometimes his challenge may be defeated by special statutory provisions on
analogy with the decision in Reg. v. Wicks [1998] A.C. 92. The defence may fail
because the relevant statutory provisions are held to be directory rather than
mandatory. It may be held that substantial compliance is sufficient. But, if an

100
Ibid at 106.
101
Boddington v British Transport Police [1999] 2 AC 143.
102
Ibid at 161. Lord Slynn of Hadley was of like mind, ibid at 164.
 - 58 -

issue as to the procedural validity of a byelaw is raised, the trial court must rule
on it.”103

139. It is logically a requirement of being allowed to mount a

collateral attack that, if successful, the criminal defence would succeed.
Only then would the challenge be “by way of defence”. This has led to the
proposition (developed by the Court of Appeal in SJ v Ocean Technology
Ltd & others 104 in the context of a constitutional challenge) that such a
collateral attack will only be permitted if, as a matter of construction of the
offence-creating provisions, it bears on an essential ingredient of the
offence. If it does not do so and if a successful challenge against the
targeted subject-matter does not lead to an acquittal, the challenge becomes
irrelevant and so is excluded.

140. It appears further from the authorities that the construction

exercise involves the court balancing the presumption in favour of
permitting the defence to be raised against arguments in favour of confining
such challenges to a forum considered more suited to dealing with public
law issues.

141. Lord Nicholls105 identified arguments in the latter category as

including the following:

“The primary reasons put forward are that the Divisional Court is a more suitable
tribunal than the criminal court for deciding certain types of issue. Challenges to
the lawfulness of an order often raise complex and sophisticated issues, suited for
decision by the specialist judges in the Divisional Court. The criminal courts, and
lay magistrates in particular, are not equipped to handle them.
Further, judicial review proceedings have built-in safeguards, in the public
interest. There are tight time limits, and the court has a measure of discretion in
deciding whether to permit proceedings to be brought and in granting or

103
Ibid at 173.
104
[2009] 1 HKC 271.
105
R v Wicks [1998] AC 92 at 106.
 - 59 -

withholding relief. This protection would be circumvented if a similar challenge

could be raised as of right by way of defence in the criminal court.
Still further, the public body whose order is being impugned will be a party to
judicial review proceedings. The public body can ensure that all the necessary
evidence and legal submissions are presented. This will not always be so with
criminal proceedings.
Finally, a decision in the criminal proceedings will not bind the public body.
There is a risk of inconsistent decisions in different cases. This is not so in
judicial review proceedings. There, if the challenge is successful, the impugned
order will be quashed and set aside.”

142. While acknowledging that those are weighty considerations,

His Lordship cautioned against regarding them as decisive:

“These reasons, taken cumulatively, show that there will be cases where
proceedings in the Divisional Court are, in practice, much more suitable and
convenient. Having said that, it must also be said that the guidance they give on
where the boundary should be drawn, and, indeed, on whether there should be a
boundary at all, is questionable. These arguments stand in danger of proving too
much. If they are persuasive they might be thought to lead to the conclusion that,
save in glaringly obvious cases, all challenges to the lawfulness of an impugned
order should be made directly to the Divisional Court rather than indirectly by
way of defence in the criminal court.” (Italics in original)

143. Lord Nicholls noted that Magistrates do often deal with tricky
questions of law and that the suggested difficulties can often in practice be
assuaged and, indeed, that contrary arguments (such as against introducing
a judicial discretion capable of affecting criminal liability) exist:

“In respect of challenges which even on the narrowest view may be raised by
way of defence, lay magistrates can be confronted with tricky questions of law.
So far as there is a risk of inconsistent decisions, or a problem regarding parties,
that also exists in those cases where the challenges may be raised as a defence in
the criminal courts. Similarly with the risk of inadequate evidence: evidence may
have to be called in the criminal court to establish, for instance, whether land to
which a byelaw purports to extend is subject to rights of common and outside the
authorised reach of the byelaw. Likewise, in those ultra vires cases which
admittedly are within the purview of the criminal courts, the decision in the
criminal court does not formally set aside the impugned order. And in those
cases the protective time limits and discretions are not available. Indeed, as to
this last point, it is highly questionable whether a judicial discretion to grant or
 - 60 -

withhold relief should have a significant role when a criminal consequence hangs
upon the lawfulness or unlawfulness of the impugned order.”106

144. The aforesaid discussion and all the authorities canvassed

(except for the Ocean Technology case which is dealt in the Section which
follows) concern non-constitutional collateral attacks. In my view, a
constitutional challenge by way of defence requires a different approach.
Such a challenge is not to be excluded simply as a matter of statutory
construction.

G. Constitutional challenges

G.1 Constitutional challenges and relevance

145. As with collateral attacks, it is logically necessary for a

constitutional challenge to bear on an essential ingredient of the offence
charged so that if successful, it operates by way of defence. To that extent,
the offence-creating provisions must be construed to identify the subject-
matter of the challenge and its relevance to liability for the offence charged.

146. This requirement was highlighted by the Court of Appeal in SJ

v Ocean Technology Ltd & others.107 The respondents there had applied for
a broadcasting licence with a view to operating a radio station but their
application had been rejected by the Chief Executive in Council. They were
charged with the statutory offence of broadcasting without a licence. They
sought to argue by way of defence that the power given to the Chief
Executive in Council to refuse a licence was an unconstitutional
infringement of their freedom of expression because that power was not

106
Ibid at 106-107.
107
Ma CJHC, Stock JA and A Cheung J (as their Lordships then were) [2009] 1 HKC
271.
 - 61 -

“prescribed by law” since it was “unfettered”. That argument was accepted

by the Magistrate but was rejected by the Court of Appeal.

147. It had correctly and inevitably been conceded by the

respondents that “control of the airwaves by a ban on broadcasting without
a licence was of itself a permissible fetter upon” freedom of expression so
that no one has a right to a broadcasting licence.108 This led Stock JA (as
his Lordship then was) to observe:

“Given that the requirement for a broadcasting licence is a permissible fetter on

the freedom of expression, and that there is no right to a licence, it is difficult to
see, in the context of the magistrate’s remit to determine the charges of
establishing or otherwise operating means of telecommunications without a
licence, and of the specific legislation under consideration, upon what basis it
was relevant for him to determine whether the discretion of the Chief Executive
in Council to grant or refuse a licence was prescribed by law.”109

148. His Lordship therefore questioned the relevance of the

challenge mounted and went on to hold as follows:

“A proper construction of ss 8 and 20 of the Ordinance is one that recognises that

it must have been the legislature’s intention that the legality of a licensing
decision or of an aspect of the licensing scheme at any given time was not a
necessary ingredient of the offence. It would be as unrealistic and non-contextual
to suggest that, as it would to contend that in enacting a provision that prohibited
the driving of a motor vehicle without a licence, the legislature intended that it
would be a defence to a charge of driving without a licence to show that, upon a
driving test, the driving examiner ought not to have refused the examinee his full
licence or to show that the criteria for granting driving licences were
insufficiently precise to meet the test of prescription by law.

It must follow that it was the legislature’s intention that if an applicant for a
broadcasting licence wishes to attack the statutory licensing system, or a
licensing decision, he must do so once he has made an application and has
received a response which might be impugned at law. In a prosecution for an
offence under ss 8 and 20 of the Ordinance, it is not open to a defendant to raise
by way of defence the legality of a licensing decision or of the licensing scheme.

108
Ibid at §§67 and 69.
109
Ibid at §70.
 - 62 -

Any other construction would, in my opinion, be contrary to the clear policy of

the legislative scheme as a whole.”110

149. Stock JA emphasised that his holding did not affect the general
availability of constitutional challenges but that a logical connection
between the subject-matter of the challenge and the essential elements of
the offence was needed:

“As Cheung J emphasises in the judgment which follows, none of this is to

suggest that it is not open to a defendant to challenge, as a defence to a charge,
the constitutionality of the offence-creating provision directed against him. To
the contrary, it is always open to a defendant to do so as has been illustrated in a
number of instances in this jurisdiction. It is merely to say that in this case the
constitutionality of the offence did not depend on the validity of the licensing
regime and it is in assuming that it did that the magistrate went wrong.” 111
(footnote omitted)

150. Andrew Cheung J (as the Chief Justice then was) pointed out
that various aspects of the statutory telecommunications regime were
capable of constituting restrictions on the freedom of expression and might
need justification, including the licensing requirement; a refusal of an
application for a licence; and the creation of a criminal offence for
broadcasting without a licence.112 But his Lordship similarly stressed the
need, in the context of a constitutional challenge by way of defence, for the
subject-matter of the challenge logically to bear on whether criminal
liability is established (such as by challenging the constitutionality of the
offence itself):

“Therefore, in the prosecution of the offence, the accused may always challenge
the constitutionality of the offence itself as being an unjustifiable restriction on
his rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of
Rights. But it does not follow that he can put in issue the constitutionality of the
restriction represented by the licensing regime or that by the refusal of a licence
(if one has been applied [for]). Whether he may do so depends entirely on

110
Ibid at §§94-95.
111
Ibid at §96.
112
Ibid at §§120-122.
 - 63 -

whether, on the proper construction of the offence, its essential elements include
the constitutional validity of the licensing regime and/or the refusal of a licence
in question.

In other words, if, on its proper construction, the offence prohibits broadcasting
etc in the absence of a [constitutionally] valid licence granted under a
constitutionally valid licensing regime, the accused will be quite entitled to put
the constitutionality of the licensing regime or the refusal of a licence in the
particular case in issue. But not otherwise.”113 (Italics in original)

151. As appears from the passages cited above, whether the

constitutional challenge engages an essential element of the offence making
it relevant by way of defence, depends on the construction of the offence-
creating provisions. That such relevance is in principle required is reflected
in section 6(1) of the Hong Kong Bill of Rights Ordinance 114 which
materially provides:

“(1) A court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of

this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or

threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach,
violation or threatened violation as it has power to grant or make in those
proceedings and as it considers appropriate and just in the circumstances.”
(Italics supplied)

G.2 An essential element

152. In the present case, the lawfulness of the CP’s prohibition order
is in my view plainly an essential element of the offence charged and a
necessary part of the prosecution’s case. As set out in Section C.1 above,
the substantive offence under section 17A(3)(a) which Chow is alleged to
have incited requires there to be an unauthorized assembly. By section

113
Ibid at §§123-124.
114
Cap 383.
 - 64 -

17A(2), a public meeting becomes an unauthorized assembly if it takes

place in contravention of section 7. Section 7 is contravened if it is held
without going through the process of notifying the CP and securing its non-
prohibition by him. Thus, in a case like the present, a prohibition under
section 9 qualifies a public assembly as an unauthorized assembly and is a
necessary element of the offence created by section 17A(3)(a) and of the
associated charge of incitement.

G.3 Constitutional challenges and statutory construction

153. It should, however, be noted that the scope and purpose of the
abovementioned exercise of construction is confined to establishing the
relevance of the challenge as explained above.

154. In my view, unlike in relation to non-constitutional collateral

attacks, the question whether a constitutional challenge to an impugned
order may be permitted by way of defence in criminal proceedings cannot
be determined simply by construing the offence-creating provision and any
related statutory material.

155. This is because constitutionally guaranteed rights and freedoms

enjoy an entrenched status under the Basic Law under the following
Articles (all italics supplied):

(a) Article 8 of the Basic Law (“BL8”) provides:

“The laws previously in force in Hong Kong, that is, the common law,
rules of equity, ordinances, subordinate legislation and customary law
shall be maintained, except for any that contravene this Law, and subject
to any amendment by the legislature of the Hong Kong Special
Administrative Region.”

(b) Turning to laws currently in force, BL18 states:

“The laws in force in the Hong Kong Special Administrative Region shall
be this Law, the laws previously in force in Hong Kong as provided for in
 - 65 -

Article 8 of this Law, and the laws enacted by the legislature of the
Region.”

(c) BL11 then relevantly states:

“In accordance with Article 31 of the Constitution of the People’s

Republic of China, the systems and policies practised in the Hong Kong
Special Administrative Region, including ... the system for safeguarding
the fundamental rights and freedoms of its residents, ... shall be based on
the provisions of this Law.

No law enacted by the legislature of the Hong Kong Special

Administrative Region shall contravene this Law.”

(d) As discussed below, Chow relies on the constitutional right of

peaceful assembly guaranteed by BOR17. 115 That provision
(among others) is given constitutional effect and entrenched by
BL39 which materially states:

“The provisions of the International Covenant on Civil and Political

Rights [“ICCPR”]... as applied to Hong Kong shall remain in force and
shall be implemented through the laws of the Hong Kong Special
Administrative Region [as has been done by the Hong Kong Bill of
Rights Ordinance (Cap 383) enacting inter alia BOR17].

The rights and freedoms enjoyed by Hong Kong residents shall not be
restricted unless as prescribed by law. Such restrictions shall not
contravene the provisions of the preceding paragraph of this Article.”

156. Accordingly, if, on their true construction, statutory provisions

and administrative acts or orders issued thereunder are inconsistent with
fundamental rights entrenched by the Basic Law, including the right of
peaceful assembly, they must give way. They cannot derogate from or
restrict those protected rights except insofar as such derogations or
restrictions satisfy the well-established proportionality analysis referred to
in the Section which follows.

115
Set out in Section B above and again in Section G.4 below.
 - 66 -

G.4 Proportionality

157. The general approach to constitutional challenges is well-

established.116 The starting-point is to identify the constitutional right relied
on and to examine whether the impugned measure or act derogates from or
restricts that right. If it does, and if it is not an absolute right, 117 one
proceeds with a proportionality analysis asking whether the challenged act
pursues a legitimate aim; whether the restriction is rationally connected to
that aim; whether that restriction is no more than reasonably necessary to
accomplish that aim (a matter related to the width of the margin of
discretion to be afforded to the decision-maker in the particular case); and
finally, whether a reasonable balance has been struck between the societal
benefits of the encroachment and the inroads made into the individual’s
constitutionally protected right. This structured inquiry has been elaborated
upon especially in the Hysan case118 and is routinely employed. It applies
generally, including in relation to constitutional challenges mounted by way
of defence in criminal proceedings.

H. Availability of the challenges by way of defence

158. The challenge sought to be mounted by Chow by way of

defence may be viewed as involving a collateral attack or alternatively a
constitutional challenge. In my view, on either basis, the application of the

116
Eg, HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at §40; Mok Charles v Tam
Wai Ho (2010) 13 HKCFAR 762 at §28; Official Receiver v Zhi Charles (2015) 18
HKCFAR 467 at §§22-23; Hysan Development Co Ltd v Town Planning Board
(2016) 19 HKCFAR 372 at §§43-80.
117
Such as the prohibition against torture and cruel, inhuman or degrading treatment or
punishment: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at §106-
111; Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at
§43.
118
Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372
summarised at §§131-141.
 - 67 -

foregoing principles leads to the conclusion that it is open to Chow to raise

such challenges by way of defence in the criminal proceedings.

H.1 Is a collateral attack available by way of defence?

159. As a matter of statutory construction, in my view, it is open to

Chow to mount a collateral attack by way of defence and it is not the
statutory intent that a formally valid prohibition order suffices to found
criminal liability under section 17A(3)(a) so that challenges are excluded.

160. Starting with the strong presumption in favour of permitting a

collateral attack, and noting that the validity of the CP’s prohibition is an
essential element of the offence (as explained in Section G.2 above), there
are two broad bases for concluding that as a matter of statutory construction,
a collateral attack is available by way of defence.

161. The first emerges from the content of POO Part III. As we
have seen, those provisions constrain the CP’s power to prohibit a public
assembly: he must reasonably consider (which I construe to mean “he has to
have reasonable grounds for considering”) that such prohibition is
“necessary” in the specified interests (section 9(1)); and he may not
exercise the power if the specified interests can be met by imposing
appropriate conditions (section 9(4)). It is plainly intended that he must
justify his decision to prohibit an assembly in accordance with the statutory
constraints. Thus, section 9(2) requires him to serve notice of his
prohibition order on the person giving notice of the intended meeting and
the prohibition order must “state the ground or grounds on which the
prohibition is considered to be necessary and the reasons for the [CP’s]
opinion as to those grounds” (section 9(2)). Thus the CP is required to
explain his decision in a manner enabling it to be scrutinised and, if
necessary, challenged.
 - 68 -

162. That challenge may obviously be made on a section 16 appeal

to the Appeal Board and it is also accepted by all that the order may be
impugned on a judicial review. Such challenges occur, of course, as part of
the decision process but, given the aforesaid strong presumption, given the
clear intention requiring the CP to justify the prohibition, and given that the
validity of the order is an essential element of the offence, construction of
the offence-creating provision in the context of Part III of the POO inclines
strongly against any contention that a formally valid prohibition order is
intended to be sufficient and beyond challenge in subsequent criminal
proceedings.

163. The second broad basis for the aforesaid conclusion rests on
the manifest intention that the statutory scheme should mirror and operate
consistently with the constitutional guarantee of the right of peaceful
assembly. This is indicated by the close resemblance of the wording of
BOR17 and POO sections 9(1) and 9(4) pointed out in Section B above.
Indeed, relevant BOR17 concepts have been expressly incorporated into the
POO which are required to be interpreted in the same way as they are
interpreted in the constitutional context. POO section 2(2) materially states:

“In this Ordinance the expressions public safety, the protection of public health
and the protection of the rights and freedoms of others are interpreted in the same
way as under the [ICCPR] as applied to Hong Kong”.

164. In Leung Kwok Hung & Others v HKSAR (“LKH 2005”),119

this Court held that the legislative intention of incorporating the
constitutional scheme into the POO went considerably further. It was held
that the reference to “necessary” in POO section 9(1) should be interpreted
in the same way as “necessity” in BOR17, thereby importing the operative
concept of proportionality into the POO provisions:

119
(2005) 8 HKCFAR 229 at §§55-57.
 - 69 -

“Although the direction on interpretation in s.2(2) does not specifically cover the
expression ‘necessary’ and the statutory test of necessity does not refer to the
expression ‘in a democratic society’ found in art.21 of the ICCPR [enacted as
BOR17], the clear legislative intent, evident from the incorporation of the ICCPR
necessity requirement into the statute, is that the statutory necessity test should
be interpreted and approached in the same way as the necessity requirement
found in art.21.

As the ICCPR necessity requirement involves the application of a proportionality

test, it follows that that test must also be applied in relation to the statutory
necessity test. The Commissioner has a discretion to restrict the right of peaceful
assembly, by objecting to or by imposing conditions on a notified public
procession. In deciding whether and if so what restriction to impose in the
exercise of his discretion, the Commissioner must consider: (1) whether a
potential restriction is rationally connected with one or more of the statutory
legitimate purposes; and (2) whether the potential restriction is no more than is
necessary to accomplish the legitimate purpose in question.”

165. This strongly supports the view that the legislative intention is
for the POO to reflect the constitutional scheme, acknowledging that a ban
on meetings by the CP is a restriction of the right of peaceful assembly
which he must justify as a matter of proportionality. It is not the legislative
intention that formal validity of such prohibition orders should suffice or
that collateral attacks should be excluded.

H.2 Is a constitutional challenge available by way of defence?

166. If the challenge is based on a constitutional right which is

engaged because the prohibition order restricts that right, that challenge is
in principle available, provided that it bears on an essential element of the
offence and thus represents a relevant challenge by way of defence (as
discussed in Sections G.1 an G.2 above).

167. There is no question of the constitutional challenge being

excluded simply on the basis that, as a matter of statutory construction, it
was the legislative intention that a formally valid order is sufficient. If that
were their true construction, such inconsistent statutory provisions would
give way to the entrenched constitutional right save insofar as such
 - 70 -

inconsistency, involving a restriction on the constitutional right, could be

justified on a proportionality analysis. Thus, in principle, provided that
Chow’s constitutional challenge meets the relevance requirement, it is open
to her by way of defence.

I. Does Chow’s collateral attack succeed?

168. Chow’s collateral attack involves the argument that found

favour with the Judge, set out in Section C.3 above. Having (with respect
rightly) concluded that it was open to Chow to mount a collateral attack, her
Ladyship held that, in exercising his power to prohibit the June 4 meeting,
the CP had failed to comply with section 9(4). If that holding was correct, it
would have justified quashing the conviction since the meeting would not
have been prohibited “under section 9” so that it would not have
contravened section 7 and so would not have constituted an “unauthorized
assembly” for the purposes of section 17A(3)(a).

169. That decision rested on three propositions: First, that section

9(4) was properly construed as placing the CP under a positive duty
proactively “seriously [to] initiate consideration on or propose” measures to
enable the meeting to be held; secondly, that there were certain conditions
that should “obviously” have been taken into account as a possible basis for
allowing the meeting to be held; and thirdly, that the CP had failed
proactively to consider and propose such measures.120 The Appeal Board’s
determination was also held to suffer from the same deficiencies.121

170. I respectfully disagree with her Ladyship’s conclusions. In the

first place I am unable to agree that section 9(4) is properly construed as
imposing a proactive duty of the kind suggested. That provision merely
120
J§§60-61, 64.
121
J§62.
 - 71 -

requires the CP to consider whether the specified interests can be met by

appropriate conditions. It does not require him to take the initiative to
devise and propose conditions that would enable the meeting to take place.
Whereas one might expect the police to lay down conditions reflecting their
normal duties and falling within their usual areas of competence, such as
regarding traffic and crowd control or ensuring public order, it is
unwarranted to construe section 9(4) as imposing the proactive obligation
suggested. A more natural construction of section 9(4) is that it obliges the
CP to give genuine and reasonable consideration to any pertinent conditions,
especially any proposals suggested by the organizers, assessing their
workability and likely effectiveness in the light of the organizers’ resources
and capabilities.

171. Secondly, I find it hard to accept that in the circumstances of

the pandemic, the suggested conditions were “obviously” to be considered
as potentially meeting the public health concerns. The risks and adequacy
of counter-measures would plainly involve potentially difficult questions of
medical and scientific judgment. And thirdly, it appears from the contents
of the prohibition order and the Appeal Board’s decision 122 that on the
evidence, the CP and the Appeal Board did in fact consider possible
conditions, taking advice from the Department of Health, and concluded
that contemplated conditions did not provide the necessary assurance,
although there is no evidence whether the conditions said to have been
“obvious” were mentioned or discussed in the decision process.

J. Does Chow’s constitutional challenge succeed?

172. In her defence, Chow also seeks to rely on the constitutional

right of peaceful assembly under BL27 and BOR17. She contends that any

122
Section B above.
 - 72 -

persons who might have gone to Victoria Park to hold the June 4 vigil as a
result of reading her posts and article would merely have been exercising
their constitutionally protected right of peaceful assembly and would not
have been acting unlawfully so that her “inciting” them to do so was
equally not unlawful.

173. BL27 materially provides:

“Hong Kong residents shall have freedom of speech, …; freedom …, of

assembly, of procession and of demonstration; …”

174. BOR17 is set out here again for convenience. It provides:

“The right of peaceful assembly shall be recognized. No restrictions may be

placed on the exercise of this right other than those imposed in conformity with
the law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of
public health or morals or the protection of the rights and freedoms of others.”

175. The prohibition against holding the June 4 meeting was plainly
a restriction on the right of peaceful assembly. The next step in the
proportionality analysis is therefore to ask whether that restriction pursues a
legitimate aim. As this Court held in LKH 2005:123

“... the legitimate purposes for restriction of this right have been set out in the
relevant constitutional text. It must be emphasised that the legitimate purposes
specified in art. 21 of the ICCPR [ie BOR17] are the only legitimate purposes.
This list is exhaustive. There cannot be a restriction for any other purpose.”

176. Thus, in asking whether the CP’s prohibition pursues a

legitimate aim, one has to ask whether it pursues one of the aims listed in
BOR17 and, taking it further, whether it is rationally connected to achieving
the relevant aim. On its face, the prohibition order states as its aim the
protection of public health, which is a matter coming within the exhaustive
BOR17 list. The banning of a mass public gathering to prevent the spread of

123
(2005) 8 HKCFAR 229 at §35.
 - 73 -

the Covid-19 virus in the community in the circumstances of the prevailing

pandemic is plainly rationally connected with that objective.

177. The main controversy involves Chow’s argument which

replicates that discussed above in the collateral attack context, namely, that
the prohibition was disproportionate and unlawful in that (i) the CP was
under a positive duty to propose reasonable and appropriate measures to
enable lawful assemblies to take place peacefully; (ii) that by virtue of POO
section 9(4), this translated into a duty not to prohibit a meeting without
having taken the initiative to propose such conditions; and (iii) that the CP
failed in this duty thereby rendering the prohibition disproportionate and
invalid.

178. The alleged positive duty on the CP is thus central to Chow’s

argument. It is based on the decision of this Court in LKH 2005, where it
was held that the police have a positive duty to take reasonable and
appropriate measures to enable lawful assemblies to take place peacefully.
However, the Court also emphasised that “the Government cannot
guarantee that lawful assemblies will proceed peacefully and it has a wide
discretion in the choice of the measures to be used. What are reasonable and
appropriate measures must depend on all the circumstances in the particular
case.”124 Thus the positive duty does not imply that the police must devise
a way to ensure that the assembly can take place. If (and consistently with
section 9(4)) the CP gives genuine consideration to whether the specified
interests can be met by the imposition of certain conditions but reasonably
decides that this cannot be achieved, he is not required either by section 9(4)
or the requirement of proportionality to refrain from prohibiting the
assembly. Indeed, as noted above, the positive duty should generally be

124
Ibid at §22.
 - 74 -

understood to relate to the normal powers and duties of the police in the
context of public meetings, processions and gatherings, such as in relation
to traffic arrangements, crowd control and the preservation of order,
including dealing with counter-demonstrations and the like. It does not
import a duty of the type advocated on Chow’s behalf.

179. It was primarily for the organizers who knew the extent of their
own resources and capabilities, to put forward satisfactory arrangements to
justify the holding of the mass public assembly notwithstanding the
undoubtedly grave risks to public health and safety then existing. It was up
to them to identify realistic measures and to persuade the CP that they had
the ability to enforce them effectively. As noted above, with respect to the
learned Judge, it is hard to see why it should have been “obvious” that the
conditions suggested at the hearing of the appeal were a potential basis for
permitting the assembly to be held. Bearing in mind that some 40,000 to
60,000 participants were expected to gather for some hours, it is perfectly
understandable that the CP reasonably failed to be convinced that the
organizers could effectively ensure that such conditions would be complied
with and that they would provide an acceptable level of safety in the
circumstances of the prevalent pandemic. The CP had a wide margin of
discretion. The prohibition was, in my opinion, plainly a proportionate and
legitimate measure.

180. It is also my view that the aforesaid considerations meet the

requirements of the 4th step in the proportionality analysis referred to in the
Hysan case125 regarding a reasonable balance between the societal benefits
of the restriction and the inroads made into the individual’s constitutionally
protected right.

125
Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at
§§64-80.
 - 75 -

181. I am thereof respectfully unable to agree with the Judge’s

conclusions and would hold that the respondent’s challenge, whether
viewed as a collateral attack or as a constitutional challenge, fails on the
basis that the CP’s decision to prohibit the June 4th assembly was
proportionate and lawful.

K. Burden of proof

182. Barnes J, correctly held that the prosecution bore the legal
burden of proving the legality of the prohibition order.126 That proposition
may be thought to be unsurprising since the validity of the prohibition order
is an essential element127 of the offence. One would thus expect the burden
to be on the prosecution to prove every necessary ingredient. Of course, the
challenge, whether by way of collateral attack or constitutional challenge,
may involve a question of law, such as whether a given act or order was
ultra vires or what the true construction of a relevant provision was. Such a
question is determined by the court as a legal question rather than a matter
involving the burden of proof. If the challenge involves questions of fact,
such facts may be undisputed, involving for instance, the contents of
relevant documents. But if proof of extraneous facts is needed, in line with
general principles, the accused would normally be held to bear an evidential
burden to raise the factual issue with the prosecution bearing the legal
burden of proving the offence charged.

183. The issue of burden of proof was not argued at the hearing.
However, it is mentioned here because in Boddington,128 Lord Irvine LC
stated: “The burden in such a case is on the defendant to establish on a

126
J§64.
127
See section G.2 above.
128
Boddington v British Transport Police [1999] 2 AC 143 at 155 and 162.
 - 76 -

balance of probabilities that the subordinate legislation or the administrative

act is invalid ...”. His Lordship thus placed the legal burden – to be
discharged on the balance of probabilities – on an accused who wished to
mount a collateral attack.

184. Is that approach applicable in the present case? While I would

not definitively shut out a contrary argument since the point was not
canvassed at the hearing, my answer for present purposes is “No”.

185. Boddington was a byelaws case. As Lord Hoffmann pointed

out in Wicks,129 this involved an “ancient jurisdiction” (which he upheld,
approving R v Reading Crown Court, Ex parte Hutchinson 130 ) whereby
“defendants prosecuted for breaches of local byelaws have always in the
past been allowed to challenge their vires without discrimination as to the
grounds upon which they were doing so.”

186. It was in that context that the accused’s legal burden of

establishing the invalidity of the impugned byelaw was asserted. This was
explained by the English Divisional Court in DPP v Bugg, 131 where the
respondent was charged with contravening a byelaw and contended that it
was invalid. The justices found that the prosecutor had not proved beyond
reasonable doubt that the byelaws were valid in all necessary respects and
dismissed the case. However, the prosecutor’s appeal was allowed and the
case remitted with a direction to convict, the Divisional Court explaining
that once proved, byelaws are to be presumed to be valid unless and until
the defendant discharges the onus upon him of showing that they are invalid.

129
R v Wicks [1998] AC 92 at 115-116.
130
[1988] 1 QB 384 at 391.
131
[1987] Crim LR 625. Whereas the later decision of Bugg v DPP [1993] QB 473 met
with disapproval in the Wicks case, this earlier decision was unaffected.
 - 77 -

That was endorsed by Lloyd LJ in ex p Hutchinson, 132 stating that the

justices in Bugg’s case were “clearly wrong”.

187. While in Wicks,133 Lord Hoffmann did not explore the question,
in holding that the availability of a collateral attack depended on statutory
construction, his Lordship might be taken also to have been suggesting that,
as a matter of statutory construction, the burden may rest on either the
prosecution or the defence. He stated:

“The question must depend entirely upon the construction of the statute under
which the prosecution is brought. The statute may require the prosecution to
prove that the act in question is not open to challenge on any ground available in
public law, or it may be a defence to show that it is.”

188. Since his Lordship was not seeking to modify the “ancient
jurisdiction” of the justices, and in the light of the subsequent decision of
the House of Lords in Boddington, it would seem that the better view of the
English jurisprudence is that the legal burden rests on a defendant only in
the special class of case involving a challenge the vires of a byelaw.

189. Those byelaw cases have no application in the present appeal.

We are not concerned with a byelaw or other subsidiary legislation that is
prima facie valid. We are concerned with the section 17A(3)(a) offence of
which a necessary ingredient is a valid prohibition order issued in
accordance with the provisions of Part III of the POO. Those are
provisions which plainly require the prohibition to be justified by the CP.
Thus, as discussed above, on the true construction of the offence-creating
provisions, in criminal proceedings an impugned order is subject to a
collateral attack, with the prosecution ultimately bearing the onus of
proving every essential element of the offence. This is a fortiori the case

132
R v Reading Crown Court, ex p Hutchinson [1988] 1 QB 384 at 393.
133
R v Wicks [1998] AC 92 at 117.
 - 78 -

where the prohibition order is subjected to a constitutional challenge. The

restriction on the right of peaceful assembly must be justified by the person
contending that the restriction is proportionate and lawful. Thus it is the CP
in the decision process and the prosecution in subsequent criminal
proceedings who bear the legal burden, with the accused, in so far as
relevant, bearing no more than an evidential burden.

L. Summary

190. Where, in cases like the present, the accused seeks to challenge
an impugned order by way of defence in criminal proceedings, the
challenge cannot properly be excluded on the ground that the accused ought
to have brought proceedings to challenge that order in a different forum in
the context of an earlier separate process to which he or she was not a party.
The availability of the challenge must be determined within the context of
the criminal proceedings themselves. (Section D)

191. The position is different in “same person” cases which is a

category inapplicable in the present case. (Section E)

192. A challenge may involve a non-constitutional collateral attack

or a constitutional challenge (or both). (Section A).

193. A non-constitutional collateral attack involves an allegation

that the impugned order was made in contravention of statutory
requirements or was susceptible to public law objections. (Section F)
Whether such an attack is available by way of criminal defence depends on
the construction of the applicable statutory provisions, asking whether the
legislative intent is that a formally valid order suffices for criminal liability
or whether such orders may be impugned. (Section F.1) The starting-point
in such a construction exercise is a strong presumption in favour of
 - 79 -

allowing the accused to mount a criminal defence challenging the relevant

order’s validity on any grounds. (Section F.2)

194. It is necessary for the collateral attack to be directed at what, as

a matter of construction, is an essential element of the offence so that if
successful, it would constitute a defence to the prosecution. The exercise of
construction also seeks to determine where the balance lies between the
aforesaid presumption and considerations militating against having the
issues adjudicated by a criminal court. (Section F.2)

195. An accused cannot be precluded from raising a constitutional

challenge simply on the basis of statutory construction. This is because
constitutional rights are entrenched by the Basic Law and any statutory
provisions or administrative orders made thereunder which are inconsistent
with those protected rights must give way, save insofar as the restrictions on
those rights pass the proportionality test. (Section G.3)

196. The proportionality test extends to constitutional challenges

made by way of defence in criminal proceedings. That test involves
examining the legitimacy and rational connection between the purported
restriction and the constitutional right concerned and the proportionality of
that restriction, bearing in mind the decision-maker’s margin of discretion.
(Section G.4)

197. As with non-constitutional collateral attacks, in a constitutional

challenge by way of defence, the subject-matter impugned as
unconstitutional must involve an essential element of the offence charged
and thus bear directly on the defence. If, as a matter of construction, a
successful challenge does not have that effect, it is excluded since it is not
relevant by way of defence. (Section G.1)
 - 80 -

198. The lawfulness of the CP’s prohibition of the intended peaceful

assembly was an essential element of the section 17A(3)(a) offence.
(Section G.2)

199. It was open to Chow to raise in the alternative, a collateral

attack and a constitutional challenge by way of defence in the criminal
proceedings. (Sections H.1 and H.2)

200. However, the collateral attack fails on the true construction of

section 9(4). The evidence also shows that the CP and the Appeal Board
gave due consideration to conditions that might be imposed. (Section I)

201. The constitutional challenge fails since the prohibition order

was a proportionate measure and represented a fair balance between the
restriction on the right of peaceful assembly and the societal benefits of the
prohibition. (Section J)

202. Where such challenges are raised, the prosecution bears the
legal burden of proving the validity of the prohibition order as an essential
element of the offence charged. (Section K)

M. A difference of approach

203. It will be apparent that the approach set out above differs
significantly from that adopted by the Chief Justice. It is with the utmost
respect that I draw attention to some of those differences.

204. The Chief Justice holds that the first certified question should
be answered in the negative so that it is not open to a defendant in a case
like the present to raise by way of defence a challenge to the legality of the
prohibition. That conclusion is reached as a matter of statutory construction
of the provisions forming the POO’s framework for the control of public
 - 81 -

assemblies in general, and sections 7, 9, 17A(2), and 17A(3)(a) in particular.

It is held that the legislative intent is for it to be sufficient for the
prosecution to prove the existence of a formally valid prohibition order
which has not been set aside on appeal or quashed on a judicial review as
the basis for establishing the section 17A(3)(a) offence and accordingly for
proving an incitement of that offence. No challenge to such formal validity
is to be permitted in the criminal proceedings, whether by way of a
collateral attack or a constitutional challenge.

205. The reasoning in this judgment differs by holding that both as a

matter of statutory construction and on constitutional principles, it was open
to Chow to mount a collateral attack or constitutional challenge, each of
those challenges involving a different legal approach.

M.1 Collateral attack

206. In this judgment, the general approach to the question whether

a collateral attack is available differs little from that adopted by the Chief
Justice: the availability of such a challenge is a matter of statutory
construction where the object is to determine whether the statutory intent is
to preclude raising a collateral attack by way of defence, with a strong
presumption in favour of allowing the defence to be raised; asking whether
it relevantly concerns an essential element of the offence and balancing
practical considerations against that presumption. I would respectfully
agree that if, on the proper construction of the relevant statute, it was
intended to preclude a non-constitutional collateral attack in criminal
proceedings, that conclusion decides the matter (leaving aside constitutional
challenges).
 - 82 -

207. However, for the reasons given in Section H.1 above, it is my

view that on the true construction of the relevant provisions of the POO,
especially those constraining the CP’s power to prohibit meetings and the
requirement that he justify his action, the legislative intention was for the
CP’s prohibition order to be subject to challenge, both within the decision
process and in subsequent criminal proceedings and not for a formally valid
order to be sufficient.

208. I would also suggest, with great respect, that many of the
provisions in Part III of the POO for controlling public meetings, etc, relied
on in the exercise of statutory construction in the Chief Justice’s judgment
are relevant only to the decision process, and ought not to be elided with
issues arising in the subsequent criminal proceedings (this not being a
“same person” case).

209. Thus, provisions laying down strict time limits for notification
and the CP’s decision and the need for expedition on the part of the Appeal
Board are directed at arriving at a decision in adequate time for everyone to
know whether the assembly is prohibited. They do not seem to me to bear
on the criminal proceedings four months later. The same applies to the
provisions setting out the limits of the CP’s power of prohibition, involving
a balance between public order considerations and respecting the right of
peaceful assembly, which are intended to govern the CP’s decision whether
or not to prohibit the notified meeting. Likewise, providing for an appeal to
an Appeal Board whose composition includes independent and legally
competent members is aimed at promoting fairness in determining whether
the intended meeting ought to be prohibited as part of the decision process.
As indicated above, insofar as these provisions are relevant to the criminal
proceedings, they support the view that a collateral attack is permitted.
 - 83 -

210. When POO section 44A(7) provides that “The determination

of an appeal by the Appeal Board shall be final”, it defines the end of the
statutory decision process. It is concerned only with the finality of the
appeal determined by the Appeal Board, an administrative process, and does
not purport to exclude challenges to the validity of a prohibition in any
extraneous proceedings, much less in criminal proceedings brought against
a person who did not take part in the decision process or the appeal.
Everyone accepts that section 44A(7)’s “finality” does not preclude post-
appeal judicial review proceedings. Neither does it purport to exclude a
post-appeal collateral attack or constitutional challenge in subsequent
criminal proceedings.

211. In my view, it is not possible to extrapolate from the

abovementioned provisions the conclusion that, as a matter of construction,
the statutory intent is to deprive a person who was not party to the decision
process of the opportunity to challenge the validity of the prohibition by
way of defence in subsequent criminal proceedings. On the contrary, for
the reasons set out in Section H.1 above, it is my respectful view that the
statutory intent is to accommodate a collateral attack and not to deem a
formally valid order sufficient.

212. Of course such a challenge may fail. But that will not
necessarily be the case. The accused may raise issues not mentioned by the
organizers before the Appeal Board or in judicial review proceedings; or the
criminal court may be more receptive to submissions which may be more
cogently made by the accused in the criminal context. If such arguments
turn out to be without merit, they will be dismissed, but the accused should
not be prevented from raising such issues on the basis of reasons which
elide considerations properly relevant only to the decision process.
 - 84 -

M.2 Constitutional challenges

213. A major difference in approach concerns constitutional

challenges. For the reasons explained in Section G.3, I am respectfully
unable to agree that the exercise of statutory construction is capable of
excluding a constitutional challenge mounted by way of criminal defence.
A constitutional right is entrenched against inconsistent laws. Assuming
that the court is satisfied that the constitutional right relied on is engaged by
a measure restricting that right and that the constitutional challenge is
relevant to the outcome of the prosecution, it is in my view not open to the
court to hold that because it construes the statute as requiring proof only of
a formally valid order to establish the offence, the order cannot be
impugned as unconstitutional.

214. If the order is properly challenged, the court seized of the

prosecution has to resolve that challenge. If it is a challenge on
constitutional grounds, it has to conduct a proportionality analysis as
indicated in Section G.4 above. This is an exercise which should not be
regarded as beyond the capabilities of a magistrate. That magistrates can
and should resolve such issues (obviously subject to appeal) has generally
been accepted, as it was by this Court in Secretary for Justice v Yau Yuk
Lung.134

215. It is argued that permitting the defence to be made in the

criminal proceedings may create uncertainty and undermine the legitimacy
of the CP’s and Appeal Board’s decisions and also create the risk of
inconsistency in the decisions of various magistrates. With great respect,
such concerns should not be over-stated.

134
(2007) 10 HKCFAR 335.
 - 85 -

216. The decision process, following the procedures prescribed in

the POO for a timely and reasoned decision to be reached, is designed to
avoid any uncertainty. The outcome of the process would be publicised to
let everyone know whether going ahead with the meeting would or would
not be an offence. If a prohibition order is issued, it takes effect and is acted
upon by the police and the public at large. If any persons decide to hold the
meeting anyway, they may expect to be prosecuted. In the present case, no
meeting took place. Whether or not an accused succeeds in challenging the
validity of that order for the purposes of her own defence in criminal
proceedings some months later does not retrospectively create uncertainty.

217. As to legitimacy, if the constitutional challenge fails, no

question of legitimacy of the earlier decision process arises. But if it turns
out that the impugned order was unconstitutional, a decision to that effect in
the criminal proceedings promotes the rule of law and should not be
avoided on the footing that the putative legitimacy of the defective order
should somehow be preserved.

218. Inconsistent decisions among different courts inevitably arise

from time to time. This is generally resolved by an appeal to a higher court
whose decision will be binding. This was recognised in Secretary for
135
Justice v Yau Yuk Lung, which concerned a challenge to the
constitutionality of an offence136 on the ground that it was discriminatory
and infringed the constitutional right to equality. That was a challenge to
the offence itself but the same applies to constitutional challenges to
administrative orders made pursuant to statutory powers which are not
themselves subject to constitutional challenge.

135
Ibid.
136
Criminalising homosexual buggery committed otherwise than in private: section
118F(1) of the Crimes Ordinance (Cap 200).
 - 86 -

219. Another argument is that a magistrate who encounters a

constitutional challenge might adjourn the case to enable the accused to
apply for judicial review of the impugned order. With respect, I find it hard
to see the virtue of that approach. The accused is only concerned with
conducting his or her defence and is not concerned with “re-opening” the
decision process or quashing the impugned order which is water long under
the bridge. It appears wrong in principle for the court to place a burden on
the accused to initiate separate proceedings in a different court rather than
to be permitted to raise a relevant matter by way of defence in criminal
proceedings brought against her. Moreover, as Lord Steyn pointed out in
Boddington v British Transport Police, 137 an accused may be faced with
significant difficulties if required to bring judicial review proceedings:

“... The defendant may, however, be out of time before he becomes aware of the
existence of the byelaw. He may lack the resources to defend his interests in two
courts. He may not be able to obtain legal aid for an application for leave to
apply for judicial review. Leave to apply for judicial review may be refused. At a
substantive hearing his scope for demanding examination of witnesses in the
Divisional Court may be restricted. He may be denied a remedy on a
discretionary basis. The possibility of judicial review will, therefore, in no way
compensate him for the loss of the right to defend himself by a defensive
challenge to the byelaw in cases where the invalidity of the byelaw might afford
him with a defence to the charge.” (Italics in original)

220. As with collateral attacks, constitutional challenges may

obviously lack merit, in which case they can be rejected. It is a daily
occurrence that thoroughly bad points are raised and rapidly disposed of.
This is likely to be true of constitutional challenges mounted in “same
person” cases, especially where the same issues have already been
adjudicated upon by a higher court. If such a constitutional challenge is
made where an available statutory appeal procedure has not been followed
by the person against whom the order was directed, that omission may well
have an obvious effect on proportionality. The accused may well have

137
[1999] 2 AC 143 at 173.
 - 87 -

difficulty arguing that the impugned decision to issue a prohibition order

involved a disproportionate restriction of a constitutional right when he or
she ignored a statutory safeguard forming part of the statutory scheme
relating to the making of that decision.

221. The court’s appropriate response in such cases, in my view,

should generally be for the challenge to be dealt with rather than excluded
as inadmissible.

Mr Justice Fok PJ and Mr Justice Gleeson NPJ:

222. We have had the benefit of reading in draft the judgments of

the Chief Justice, Mr Justice Ribeiro PJ and Mr Justice Lam PJ in this
matter. Each of their judgments arrive at the same conclusion that the
appellant’s appeal must be allowed. With that conclusion, we agree.
However, since the respective reasons of the Chief Justice and Mr Justice
Lam PJ, on the one hand, and Mr Justice Ribeiro PJ, on the other, for
arriving at this conclusion are quite different, it is necessary to state briefly
why we support that conclusion on the basis of the reasons set out in the
judgment of Mr Justice Ribeiro PJ, with which we respectfully agree.

223. The fundamental difference in the reasoning concerns the

elements of the underlying offence of which the respondent was charged
with inciting others to commit, namely an offence under section 17A(3)(a)
of the Public Order Ordinance (Cap.245) (“the POO”). Under that
provision, any person who, without lawful authority or reasonable excuse,
knowingly takes or continues to take part in or forms or continues to form
part of an unauthorised assembly commits the offence. The unauthorised
 - 88 -

assembly is specifically defined as one which takes place in contravention

of section 7 or 13 of the POO.138

224. Under section 7, a public meeting may take place if, but only if,
(a) the Commissioner of Police has been notified under section 8 of the
intention to hold the meeting, and (b) the holding of the meeting has not
been prohibited under section 9. This appeal concerns a public meeting that
was prohibited under section 9. Section 9 provides for the power under
which the Commissioner of Police may prohibit a notified public meeting.
He may do so “where he reasonably considers such prohibition to be
necessary in the interests of national security or public safety, public order
or the protection of the rights and freedoms of others” (section 9(1)).
However, section 9(4) enjoins him from exercising the power to prohibit the
holding of a public meeting “in any case where he reasonably considers that
the interests of national security or public safety, public order or the
protection of the rights and freedoms of others could be met by the
imposition of conditions under section 11(2).”

225. It is in respect of section 9(4) that the fundamental difference

between the judgments lies. Does the offence under section 17A(3)(a)
require the prosecution to prove the lawfulness of the prohibition issued in
respect of the public meeting in question (as Mr Justice Ribeiro PJ holds) or
is it sufficient for the prosecution merely to prove the formal validity of a
prohibition notice (as the Chief Justice and Mr Justice Lam PJ hold)? The
answer to that question determines whether it is open to a defendant to a
charge under section 17A(3)(a) to raise by way of defence a collateral
challenge to the lawfulness of the prohibition, including a constitutional
challenge that the prohibition is a disproportionate restriction of the

138
This appeal is concerned only with a public meeting and not a public procession, so
section 13 is not relevant for present purposes.
 - 89 -

defendant’s constitutional freedom of assembly. It is not controversial that

the answer to that question is a matter of statutory construction.

226. In this regard, we agree with Mr Justice Ribeiro PJ that, as a

matter of statutory construction, a lawful prohibition of the public meeting
is an essential element of the offence under section 17A(3)(a).

227. The starting point of the construction exercise is the

fundamental right in Article 27 of the Basic Law (“BL27”) that “Hong
Kong residents shall have freedom of … assembly, of procession and of
demonstration”. That right is also conferred by Article 17 of the Hong
Kong Bill of Rights (“BOR17”), which provides that:

“The right of peaceful assembly shall be recognized. No restrictions may be placed

on the exercise of this right other than those imposed in conformity with the law
and which are necessary in a democratic society in the interests of national security
or public safety, public order (ordre public), the protection of public health or
morals or the protection of the rights and freedoms of others.”

228. BOR17 is given constitutional effect and entrenched by Article

39 of the Basic Law. As such, and by virtue of Articles 8, 11 and 18 of the
Basic Law, no law of Hong Kong may contravene the provisions of BOR17.
Similarly, by Article 39 of the Basic Law, restrictions on the right under
BL27 may not contravene the International Covenant on Civil and Political
Rights (“ICCPR”) as applied to Hong Kong.

229. The POO was substantially amended in 1995, having regard to

the Hong Kong Bill of Rights Ordinance, enacted in 1991, and the character
of the latter can clearly be seen in various parts of the POO. Thus, section
2(2) expressly links the interpretation of the expressions “public safety, the
protection of public health and the protection of rights and freedoms of
others” in the POO to their interpretation in the ICCPR as applied to Hong
Kong, i.e. the rights entrenched in the Basic Law via Article 39 and
 - 90 -

including BOR17. Sections 9(1) and (4) both require consideration of a

decision to prohibit a public meeting to take into account “the interests of
national security or public safety, public order or the protection of the rights
and freedoms of others”, thereby reflecting the provisions of BOR17.
Similarly, section 11(2) limits the conditions the Commissioner of Police
may impose in respect of a public meeting to those he reasonably considers
“necessary in the interests of national security or public safety, public order
or the protection of the rights and freedoms of others”, again reflecting
BOR17.

230. The need to interpret the provisions of BOR17 and sections 9(1)
and (4) and 11(2) consistently is reinforced by the Court of Final Appeal’s
decision in Leung Kwok Hung & Others v HKSAR.139

231. In view of the nature and importance of the rights under BL27
and BOR17, other than in what is referred to in Mr Justice Ribeiro PJ’s
judgment as a “same person” case, we do not think the existence of the
appeal mechanism under section 16 and Part IX of the POO requires that
section 9(4) be read as only requiring formal validity of a prohibition notice
for the purposes of a prosecution under section 17A(3)(a). Neither the
appeal mechanism nor the constitution of the Appeal Board nor the finality
of a determination by the Appeal Board requires, in our view, a conclusion
that the prosecution need only prove the formal validity of a prohibition
notice for the purposes of a prosecution under section 17A(3)(a).

232. On the contrary, since it is accepted that the requirement of

reasonableness in section 9(4) imports an objective standard, the test of
what is “necessary” in sections 9(1) and 11(2) should correspond with that
which applies in respect of BOR17, namely one which satisfies the test of

139
(2005) 8 HKCFAR 229 at [56]-[57].
 - 91 -

proportionality as set out in this Court’s judgment in Hysan Development

Co Ltd and Others v Town Planning Board.140

233. As to section 44A(7), the determination of the Appeal Board is

final in the sense that it is the end of an administrative process, but the
provision does not have the effect that the prohibition, if upheld by the
Appeal Board, is deemed to be lawful. Indeed, it is common ground that it
could be challenged on judicial review.

234. For these brief reasons, which in substance reflect those of Mr

Justice Ribeiro PJ, we differ, with respect, from the conclusion of the Chief
Justice that the lawfulness of the prohibition is not an essential element of
the offence in question and that any such collateral challenge could and
should only be raised by way of judicial review proceedings separate to and
outside the ambit of the criminal prosecution. The respondent was entitled
to raise a collateral attack to the lawfulness of the prohibition in question,
including a constitutional challenge, by way of defence to the charge she
was facing in the criminal proceedings.

235. Turning to the respondent’s defence to the charge of the

offence, it was argued before the Magistrate and Judge below that the
prohibition was not lawful because (1) it was issued for an improper
purpose, (2) it was ultra vires (i.e. made without jurisdiction) since there
was no power to prohibit a public meeting on public health grounds, and (3)
the prohibition was not a reasonable restriction on the respondent’s right of
assembly, i.e. was not proportionate.

236. The Judge decided in favour of the respondent, holding that the
Commissioner of Police had failed to comply with section 9(4).

140
(2016) 19 HKCFAR 372 at [133]-[141].
 - 92 -

237. For the reasons fully developed by Mr Justice Ribeiro PJ in

Sections I and J of his judgment, we agree that the respondent’s collateral
attacks on the prohibition and her constitutional challenge based on BL27
and BOR17 are without merit and must be rejected. Accordingly, her
challenge to the lawfulness of the prohibition in respect of the meeting
which she was held to have incited others to attend fails and she was rightly
convicted by the Magistrate of the offence charged.

238. We should add that we also agree with the discussion and
conclusion in respect of the burden of proof in Section K of Mr Justice
Ribeiro PJ’s judgment.

239. We would therefore allow the appellant’s appeal and remit the
respondent’s appeal against sentence to the Judge for determination.

Mr Justice Lam PJ:

240. I have had the advantage of reading in draft the judgments of

the Chief Justice and Ribeiro PJ. On Question (1), the Chief Justice holds
that by the design of the legislative regime under the Public Order
Ordinance, Cap. 245 (“POO”) proportionality of the prohibition is not a
relevant issue for the criminal court to decide. On the other hand, Ribeiro PJ
is of the view that a defendant is entitled to raise that issue as a defence in
the criminal proceedings.

241. Further, applying the proportionality test under Question (2),

Ribeiro PJ concluded that the prohibition in question was proportionate and
the judge erred in holding otherwise.

242. On either view, the appeal should be allowed and the

conviction restored. The appeal against sentence should be remitted for
determination. I concur with these outcomes in the appeal.
 - 93 -

243. On the divergence between the Chief Justice and Ribeiro PJ, I
respectfully agree with the Chief Justice on Question (1). Even though such
agreement would render Question (2) otiose, I also agree with Ribeiro PJ
that the judge erred in holding that the prohibition failed to satisfy section
9(4) of the POO. I also agree that even assuming that there is scope for this
Court to conduct a Hysan proportionality assessment 141 , the prohibition
should be upheld.

244. Whilst freedom of peaceful assembly is a fundamental right

protected under article 27 of the Basic Law (“BL 27”) and article 17 of the
Hong Kong Bill of Rights (“HKBOR 17”), it is subject to proportionate
restrictions prescribed by law which are necessary in a democratic society
in the interests of national security or public safety, public order, the
protection of public health or morals or the protection of the rights and
freedoms of others.

245. In Leung Kwok Hung v HKSAR 142 , this Court examined the
statutory regime regarding unauthorised assembly under the POO and held
that it is a proportionate restriction of the freedom of assembly in BL 27 and
HKBOR 17.

246. In that case, it was accepted that the notification requirement is

proportionate and justified. The challenge by the appellants focused on the
Commissioner of Police’s discretion to object to a notified public
procession and his discretion to prohibit or to impose conditions under
section 9 of the POO143. The Court took account of the appeal mechanism
and the availability of judicial review in coming to the conclusion that the

141
Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372.
142
(2005) 8 HKCFAR 229.
143
Ibid at [66].
 - 94 -

restriction imposed by such discretion (including a discretion to prohibit)

satisfied the proportionality test144.

247. This Court held that the Commissioner has to apply the
proportionality test in the exercise of his discretion to restrict the right of
peaceful assembly145. In the event of a judicial review brought to challenge
the decision of the Commissioner or the Appeal Board146, the Court would
have to consider whether the Board has properly applied the proportionality
test147.

248. Hence, the proportionality of a decision to object to the holding

of a notified meeting could be challenged through judicial review
notwithstanding that it is stipulated under section 44A(7) of the POO that
the determination by the Appeal Board is “final”.

249. The POO regime designated the Commissioner to be the

primary decision maker in determining whether there should be objection to
the holding of a public meeting involving large numbers of participants (as
provided for under section 7(2)). Such a legislative choice is not surprising
since the police has to work with whoever organising a public meeting of
such a scale to maintain public order and public safety.

250. The POO also provides that the decision of the Commissioner
is subject to challenge by way of appeal to the Appeal Board. The
legislature further deems it appropriate to provide that the determination of

144
Ibid at [92] to [94]. The appeal mechanism and potential challenge by judicial review
were discussed at [60] to [62] and [64].
145
Ibid at [54] to [58].
146
Since the case should have gone through an appeal before the Appeal Board by way
of exhaustion of statutory remedy prior to an application for judicial review, usually
the decision that should be subject to judicial review challenge is the decision of the
Appeal Board rather than that of the Commissioner, see Re Moshsin Ali [2018]
HKCA 549.
147
(2005) 8 HKCFAR 225 at [64].
 - 95 -

the Appeal Board shall be final. In accordance with the long established
approach in public law, such finality leaves the avenue of judicial review
open. Subject to that, there could not be any challenges to the finality by
other avenue in other legal proceedings. In the present appeal, the
Respondent accepted that the courts in taking up a supervisory role should
accord an appropriate margin of appreciation to the police and the Appeal
Board148.

251. As explained by the Chief Justice, finality of the determination

serves the important objective of bringing certainties on the regulation of a
proposed public meeting under the POO regime. Since the purpose of the
creation of the offence of unauthorised assembly POO is to prevent public
disorder from arising, certainty of the legality of a public meeting is
important to members of the public who may take part in the meeting and
law enforcement officers who are duty bound to enforce a prohibition. In
this connection, I echoed the observations of L’Heureux-Dubé J cited by the
Chief Justice at [34] of his judgment. In the same judgment, Her Honour
succinctly summarised the issue for the criminal court as follows:

“In summary, the question whether a penal court may determine the validity
of an administrative order on a collateral basis depends on the statute under
which the order was made and must be answered in light of the legislature’s
intention as to the appropriate forum. In doing this, it must be presumed that
the legislature did not intend to deprive a person to whom an order is directed
of an opportunity to assert his or her rights.”149

252. With great respect, I prefer this approach to asking if the

validity of an administrative order constitutes an essential ingredient of the

148
Respondent’s printed case, para 54.
149
R v Consolidated Maybrun Mines Ltd [1998] 1 SCR 706 at [52]. This approach is
consistent with the one set out by Lord Irvine LC in Boddington v British Transport
Police [1999] 2 AC 143 at p.160C.
 - 96 -

offence 150 . The difference may merely be a matter of emphasis. If the

relevant statutory provisions are construed in its proper context paying due
regard to the object and purpose of the legislation, either approach should
yield the same result. However, the approach of L’Heureux-Dubé J has the
advantage of focusing precisely on the question that the court has to resolve
in terms of identifying the legislative intent on forum. The disadvantage of
focusing on the essential ingredients of the offence is that one may fall into
the temptation of construing the offence creating provision without paying
sufficient regards to the other provisions relevant to legislative intent on
forum.

253. In the present context, the most relevant provision reflecting

the legislative intent on forum is section 44A(7). It reads:

“The determination of an appeal by the Appeal Board shall be final.”

254. It is necessary to construe what finality provided under that

subsection means in light of the overall statutory context.

255. On the other hand, if one were to follow the essential

ingredient approach, one would naturally start from sections 7 and 8 of the
POO. Since the purpose of the exercise is to discover the legislative intent
on forum, in deciding whether the prohibition is “essential” one must give
due weight to section 44A(7).

The statutory context in which section 44A(7) operates

256. In this section, I shall set out my view on the proper

construction of the POO and the effect of section 44A(7) as a matter of

150
An approach based on the judgment of Stock JA (as he then was) in Secretary for
Justice v Ocean Technology Ltd [2009] 1 HKC 271 at [94] and the judgment of A
Cheung J (as the Chief Justice then was) at [123].
 - 97 -

statutory construction. In the next section, I shall turn to a discussion on

constitutional challenge.

257. An organiser of a public meeting exercises his freedom of

assembly and such freedom is restricted by the POO in a proportionate
manner. If a meeting is held with proper safeguards for public order and
safety as provided under the POO, participants in the meeting also exercise
their freedom of assembly. Such freedom of the participants is only
lawfully exercisable when a public meeting is duly held in accordance with
the POO. The participation in any other form of public meeting would be
taking part in an unauthorised assembly. These are the effects of the POO
regime on the regulation of public meetings which this Court held to be
constitutionally valid in Leung Kwok Hung v HKSAR151.

258. As we shall see, the design of the POO regime focuses on the
organiser at the pre-meeting stage and there is good reason for such design.
However, a decision by the Commissioner to prohibit the holding of a
meeting could have bearings on subsequent stages if the organiser persisted
in holding the meeting notwithstanding the prohibition.

259. The basic premise of Ribeiro PJ’s analysis is the segregation of

the finality of a prohibition in what His Lordship called the statutory
decision process (determining whether a notified meeting should be
prohibited) from subsequent criminal proceedings brought against persons
other than the organiser under section 17A of the POO. With the greatest
respect, I cannot agree with such segregation.

151
(2005) 8 HKCFAR 229.
 - 98 -

A1. No demarcation of finality under Section 44A(7) from criminal

proceedings

260. I cannot discern from the text and the object and purposes of
the POO a legislative intent to draw a distinction in respect of the finality of
a prohibition between the statutory decision process and the criminal
proceedings. The relevant offences under section 17A of the POO were
created to provide criminal sanctions for acts and conducts in defiance of
the regulation regime in POO of which a prohibition forms one component.
Sections 17(1)(a), (3), (4), (5) and (6) conferred powers on police officers to
disperse a meeting which takes place in contravention of section 7 and to
bar access to a public place to prevent such public meeting from taking
place. Such powers, insofar as they are exercised in respect of a meeting
subject to a prohibition, operated on the premise that the prohibition is valid.
Likewise, when a police officer arrested a person for participating in such
unauthorised assembly or for other section 17A offences committed at such
unauthorised assembly, he or she would be doing so on the premise of a
valid prohibition.

261. The regime of the POO also includes a prohibition against

advertising or publicizing an unauthorised meeting, including a prohibited
meeting. As a pre-emptive measure to prohibit the notified meeting from
being held, section 17A(1)(d)(iii) imposes restriction on announcement or
advertisement against all persons, including a person who is unrelated to the
organiser who had given the notice leading to the prohibition. The relevant
part of the subsection reads:

“Any person who makes any announcement or publishes any advertisement

or notice …advertises or publicizes a public meeting which is prohibited
under section 9 and which prohibition has not been reversed on appeal
commits an offence …” (my emphasis)
 - 99 -

262. The highlighted part of this subsection clearly shows that the
finality of a prohibition shall continue to have effect after the statutory
decision process.

263. Given the purpose for which these offences were created, the
legislature could not have intended that a prohibition is only “final”
(meaning that it could not be challenged in any proceedings other than a
challenge brought by way of judicial review) for the statutory decision
process but not for subsequent criminal proceedings buttressing the
effectiveness of the prohibition. Confining the effect of section 44A(7) to
the statutory decision process would strip the provision of any practical
effect. Such construction cannot be sustained if section 44A(7) is to take
effect coherently with the other sections in the POO in regulating public
meetings.

A2. The essential role of organiser in the POO regime

264. Some importance is attached to the lack of standing of any

person other than the organiser to bring an appeal against a prohibition to
the Appeal Board. Though it is true that section 16(1) of the POO only
provides an avenue of appeal for the organiser, one must have regard to the
role placed upon an organiser in the POO regulatory regime in order to
understand the statutory design. In the light of such statutory design, the
lack of standing of other persons to mount an appeal cannot be a sufficient
reason for holding that the finality under section 44A(7) should only be
confined to the organiser. This is particularly so in cases where the
organiser abandons the intention to hold the notified meeting after the
prohibition.

265. The POO restrictions are only placed upon public meeting of
specified scale as set out in section 7(2) and of a nature which does not
 - 100 -

come within the exclusion in the definition of “meeting” in section 2. The

definition in section 2 provides as follows:

“meeting ( 集 會 ) means any gathering or assembly of persons convened or

organized for the purpose of the discussion of issues or matters of interest or
concern to the general public or a section thereof, or for the purpose of the
expression of views on such issues or matters, and includes any gathering or
assembly of persons whether or not previously convened or organized at which
any person assumes or attempts to assume control or leadership thereof for any
such purpose; but does not include any gathering or assembly of persons
convened or organized exclusively—

(a) for social, recreational, cultural, academic, educational, religious or charitable

purposes, or as a conference or seminar bona fide intended for the discussion
of topics of a social, recreational, cultural, academic, educational, religious,
charitable, professional, business or commercial character;
(b) for the purpose of a funeral;
(c) for the purposes of any public body; or
(d) for the purpose of carrying out any duty or exercising any power
imposed or conferred by any Ordinance”.

Section 7(2) reads:

“This section shall not apply to—

(a) a meeting of not more than 50 persons;

(b) a meeting in private premises (whether or not the public or any section of
the public are permitted to attend) where the attendance at the meeting does
not exceed 500 persons;
(c) a meeting in any school registered or provisionally registered or exempted
under the Education Ordinance (Cap. 279), or in any college registered
under the Post Secondary Colleges Ordinance (Cap. 320), or in any
educational establishment established by any Ordinance, if—

(i) the meeting is organized or approved by an accredited society or

similar body of such school, college or educational establishment; and
(ii) the meeting is held with the consent of the management of such school,
college or educational establishment in accordance with the terms of
that consent,

whether or not the public or any section of the public are permitted to
attend.”
 - 101 -

266. In the context of a public meeting of over 50 persons held in

public place and a public meeting of over 500 persons in private premises,
the proper and safe conduct of the meeting depends on the readiness,
willingness and ability of a responsible person or organisation to observe
the requirements of the POO. Thus, it is not surprising that the notice
required to be given under sections 7(1)(a) and 8(1) is a notice of “the
intention to hold a public meeting”. The intention must be that of the
organiser, not the intention of someone else. In the notice, an organiser has
to be identified: section 8(4)(a)(i) requires the name, address and telephone
number of the organiser to be provided. Section 8(4) reads:

“(4) Notice under this section shall be given by being delivered in person by
the person giving it, or by any person on his behalf, to the officer in
charge of a police station, and shall contain particulars of the
following matters—
(a) the name, address and telephone number of—
(i) the person organizing the meeting and any society or
organization promoting or connected with the holding of the
meeting; and
(ii) a person able to act, if necessary, in place of the organizer for
the purpose of section 11(1)(a);
(b) the purpose and subject-matter of the meeting;
(c) the date, location, time of commencement and duration of the
meeting; and
(d) an estimate by the person organizing the meeting of the number of
people expected to attend the meeting.”

267. The role played by the organiser is set out in various provisions
of the POO. It is clear from those provisions that the organiser, working in
conjunction with the police, bears the responsibility for the safe and orderly
conduct of the meeting. Section 11(1) requires the organiser or his
nominated representative to be present at the meeting with a view to
maintain good order and public safety throughout the meeting. Section 11
reads:
 - 102 -

“(1) At every public meeting—

(a) there shall be present throughout the meeting either the person
who organized the meeting or, if he is not present, a person
nominated by him to act in his place;
(b) good order and public safety shall be maintained throughout the
meeting;
(c) the control of any amplification device that is used in such a
manner that it causes a noise that would not be tolerated by a
reasonable person shall, if so required by a police officer, be
surrendered to the police officer for the duration of the meeting.
(2) The Commissioner of Police may, where he reasonably considers it
necessary in the interests of national security or public safety, public
order or the protection of the rights and freedoms of others, impose
conditions in respect of any public meeting notified under section 8;
except that if the meeting is to take place in a designated public area
the Commissioner may, insofar as the interests of public order are
concerned, only impose conditions relating to the time at which such
a meeting may be held.
(3) Notice of any condition imposed pursuant to subsection (2) shall be
given in writing to the person by whom the public meeting has been
notified or to some other person concerned in the holding, convening,
organizing or forming of the meeting and shall state the reasons why
such condition is considered necessary.
(4) The power conferred by subsection (2) to impose conditions includes
a like power to amend any such condition previously imposed and
reference in this Ordinance to a condition imposed under or pursuant
to subsection (2) shall, except where the context otherwise requires,
include reference to an amendment to such a condition pursuant to
this subsection.
(5) Every person who organizes a public meeting, or any person acting in
place of such person for the purpose of subsection (1)(a), shall
comply forthwith with any direction given to him by a police officer
for ensuring compliance with or the due performance of any of the
requirements of subsection (1) or any conditions imposed under
subsection (2). …”

268. Notice of the conditions imposed by the Commissioner under

section 11(2) is given to the organiser who would then have a legal
obligation to comply with the same under section 11(5) as well as the
further directions given by a police officer for ensuring that good order and
public safety is maintained throughout the meeting. This legal obligation is
reinforced by criminal sanction under section 17A(1A).
 - 103 -

269. Hence, under the regulatory regime for public meetings in the
POO it is essential that the organiser has to assume responsibility for a
public meeting. The identity of the organiser and his ability and readiness
to maintain, in conjunction with the police, the good order and public safety
of the public meeting are essential components in the scheme of notification
under section 7. Thus, the notice that is required to be given under section
8(1) is the notice of the intention of a particular organiser to hold the public
meeting.

270. Therefore, it is not surprising that the right of appeal against a

prohibition is only conferred upon the organiser. Other persons cannot
appeal against a prohibition because they could not oblige the organiser
who has previously given notice to the Commissioner to continue with the
organisation and the holding of a meeting. If the organiser does not pursue
an appeal in the wake of a prohibition, it is most likely that the organiser
abandons any intention to hold the meeting. After all, under section 9(1)
the prohibition issued by the Commissioner is a prohibition against the
holding of the public meeting notified by a particular notice. It primarily
functioned as a pre-emption against the organiser to hold the meeting
though notice of such prohibition would be given to the public under
section 9(2).

271. As we have seen, the identity of the organiser and the proposed
manner the meeting is to be conducted by that organiser (including the
resources and measures that the organiser could put in place to safeguard
good order and public safety) are important considerations for the
Commissioner in deciding whether the notified meeting should be
prohibited. It also follows that the notice given under section 8 and the
subsequent prohibition issued by the Commissioner under section 9 are only
effective in respect of the holding of the public meeting by that organiser.
 - 104 -

A3. When the organiser abandons the intention to hold the meeting

272. A prohibition does not preclude another person from giving

another notice to the Commissioner of that person’s intention to hold a
similar meeting though there are time constraints laid down in section 8(1)
and (2). Upon receipt of a new notice, the Commissioner would have to
consider afresh the notice and other relevant information given by the new
organiser. If the Commissioner also issues a prohibition regarding that
notification, the new organiser could appeal.

273. In my view, based on the above analysis, a public meeting to

which section 7 of the POO is applicable which has no organiser is
necessarily an unauthorised one since no effective notice could have been
given under section 8. The requirement of having a responsible organiser to
hold a public meeting is the legislative balance struck between the freedom
of assembly (including the freedom of the organiser as well as the freedom
of those intend to participate in a public meeting) on the one hand and the
interests of national security, public safety, public order and the protection
of the rights and freedoms of others on the other hand.

274. After an organiser has abandoned the intention to hold the

meeting in light of a prohibition, if no new organiser comes forward to give
a fresh notice for the meeting, it would be counterintuitive to suggest that,
despite the absence of any organiser, a meeting could still proceed as an
authorised meeting based on the notice previously given by the original
organiser. The holding of a public meeting without the involvement of any
organiser obviously entails greater risk to public safety and public order
than the aborted meeting for which the organiser has given notice (which
has then been subject to prohibition by the Commissioner). The legislature
could not have intended that such a meeting could be an authorised one
 - 105 -

simply because the organiser capitulated in the wake of the Commissioner’s

prohibition.

275. For this reason, on proper construction, reading the scheme of

the POO regulating public meetings as a coherent whole, section 7 only
countenances public meeting involving large number of participants when
there is an organiser accountable for the safe conduct of the meeting. That
organiser must give a notice of his intention to hold the meeting pursuant to
section 8. He cannot rely on a previous notice given by another organiser.
Nor can a participant rely on a notice given by an organiser who has since
the giving of notice abandoned his intention to hold the meeting.

A4. The prohibition is not an essential ingredient of the offence when

the organiser abandoned the intention to hold the meeting

276. In light of the above analysis, it is difficult to see the rationale

for permitting a defendant charged with an offence of participating in an
unauthorized assembly to raise by way of his defence a challenge to a
prohibition issued to an organiser who no longer played any role in holding
the meeting. As far as that defendant is concerned, he participated in an
unauthorised meeting which had not been subject to any notice under
section 7(1)(a).

277. In order to establish that the meeting is an unauthorised

meeting, the prosecution does not even need to prove that a prohibition had
been made. The meeting contravened section 7 because there was no
person willing to take up the role of an organiser to give a notice to the
Commissioner with regard to his intention to hold the meeting in which the
defendant took part.

278. In a nutshell, when the organiser who had previously given

notice of his intention to hold the meeting subsequently abandoned such
 - 106 -

intention in light of a prohibition, the prohibition has no relevance in any

subsequent criminal proceedings against other parties.

279. A meeting could be held in the absence of an organiser and an

offence of participating in an unauthorised assembly could be committed in
respect of such meeting. The definition in the POO for “meeting” in section
2 provides that “meeting” includes “any gathering or assembly of persons
whether or not previously convened or organized at which any person
assumes or attempts to assume control or leadership thereof …”.

280. Viewed in such context, a participant who took part in such

unauthorised meeting is not deprived of any opportunity to challenge any
relevant element of the offence in the criminal proceedings he faced.

A5. When the organiser proceeded with holding the meeting despite a
prohibition

281. If the organiser held the notified meeting notwithstanding a

prohibition, he could be prosecuted under section 17A(3)(b). It is common
ground that the organiser could bring a judicial review to challenge the
prohibition after he failed before the Appeal Board notwithstanding section
44A(7).

282. A person who knowingly takes part in such meeting without

lawful authority or reasonable excuse could be prosecuted under section
17A(3)(a). I agree with the Chief Justice that when someone is arrested for
participating in an unauthorised assembly, he would have the requisite
standing to bring a judicial review to challenge the proportionality of the
prohibition. Further, I am of the view that someone arrested for inciting
others to participate in such unauthorised assembly held by that organiser
would also have standing to do so.
 - 107 -

283. Likewise, someone arrested for the offence under section

17A(1)(d) for making an announcement or publishing an advertisement or
notice a public meeting which is prohibited would also have standing to
bring such judicial review application.

284. The issue before us is whether, in addition to judicial review, a

defendant could challenge the proportionality of the prohibition in criminal
proceedings. No matter how this question is to be answered, a defendant
would not be deprived of the opportunity for bringing a challenge to the
relevant prohibition in a court of law.

285. For the reasons given by the Chief Justice, and in light of the
other features in the POO regime which I have previously mentioned, I
respectfully agree that it could not have been the intention of the legislature
to permit the substantive validity of a prohibition to be canvassed in
criminal proceedings. The only avenue for mounting a challenge against a
prohibition is by means of judicial review.

286. The above survey on the operation of the POO also

demonstrates that it is impossible to draw a line at the end of the
determination of an appeal by the Appeal Board to delimit the effect of
section 44A(7) on the “finality” concerning challenges to the validity of a
prohibition. It could not have been the intention of the legislature that
section 44A(7) only serves to define the end of the statutory decision
process. The statutory decision process is only a means to serve the ends of
having a prohibition in place to facilitate the regulation of a notified public
meeting. Such regulation takes practical effects through the other statutory
measures in the POO which operate after the decision process.
 - 108 -

287. Subject to judicial review, section 44A(7) instils certainty on

the legality of a prohibition. As explained by the Chief Justice 152 , such
certainty is important for the proper and effective functioning of the
regulatory regime under the POO.

288. Viewed in light of the above analysis, I support the Chief

Justice’s construction of sections 17A(2) and (3)(a).

B. Constitutional challenge

289. Ribeiro PJ also held that since freedom of assembly is a

constitutionally entrenched right a defendant is entitled to challenge the
prohibition as a disproportionate restriction of such right in criminal
proceedings irrespective of the legislative intention embodied in the POO.

290. For my part, I would reckon that the analysis as to the

restriction on freedom of assembly is a more nuanced one. The prohibition
was made by the Commissioner under the POO regime which, according to
Leung Kwok Hung v HKSAR 153 , imposes a proportionate restriction on
freedom of assembly.

291. There is no universal rule that where the activity of a defendant

in committing of an offence took the form of a protest or demonstration, the
criminal court must examine the proportionality of the interference with
such right in the circumstances of each individual case, see In re Abortion
Services (Safe Access Zones) (NI) Bill154 at [28] and [34].

292. Offences containing a reference to “lawful or reasonable

excuse” do not necessarily require an assessment of proportionality in the

152
At [65] and [67] of his judgment.
153
(2005) 8 HKCFAR 229.
154
[2023] AC 505.
 - 109 -

circumstances of each case, Abortion Services 155 at [53] and [58]. The
correct approach is a nuanced one involving the following steps even when
freedom of assembly is engaged:

(a) Whether the offence is one where the ingredients of the offence
themselves strike the proportionality balance: if the offence is so
defined to ensure that any conviction will meet the requirements
of proportionality, the court does not have to go through the
process of verifying that a conviction would be proportionate on
the facts of every individual case, see [55];

(b) If the proof of the ingredients of the offence does not in itself
ensure the proportionality of a conviction, the court should ask if
there is a means by which proportionality of a conviction can be
ensured. One possibility is to interpret a defence of lawful or
reasonable excuse as providing a route for proportionality
assessment, see [56] to [57].

293. Lord Reed PSC summed up the approach at [58] in these

words:

“But the mistake should not be made of assuming that the presence of a
reference to a lawful or reasonable excuse in the definition of an offence
necessarily means that a proportionality assessment in respect of Convention
rights is appropriate…Further, where the ingredients of the offence in
themselves do strike the appropriate balance, there is no need for a
Convention proportionality assessment when considering the lawful excuse
defence. That defence can be relied on in other circumstances that do not
raise Convention issues, such as where the defendant asserts that he acted in
self-defence or out of necessity, or had been lawfully authorised to engage in
the conduct alleged.”

294. In James v Director of Public Prosecutions 156 , the English

Divisional Court considered whether a criminal court should decide on the

155
Ibid.
 - 110 -

proportionality of a direction given by a senior police officer under section

14 of the Public Order Act 1986 imposing a condition requiring a protest
not to take place on a zebra crossing in the wake of protesters crossing and
re-crossing it to impede the progress of traffic by way of protest. The
defendant was charged with the offence of knowingly failing to comply
with such direction. The Divisional Court held that satisfaction of the
statutory test is proof of the proportionality of the making of a direction
because the statute requires the senior officer to hold the necessary belief
that a public assembly may result in serious public disorder and to have
reasonable grounds for that belief157.

295. James was cited by Lord Reed in Abortion Services158 as an

example of a criminal offence achieving inherent proportionality without
the need for a fact-specific assessment in individual cases.

296. As noted by Ribeiro PJ, there is a close resemblance of

wording of HKBOR 17 and sections 9(1) and (4) of the POO and the
relevant HKBOR 17 concepts have been incorporated into the POO. This
suggests that the POO restrictions on freedom of assembly are, like the
offence in James, inherently proportionate. Under this regime, “operational
proportionality” is primarily a matter for the Commissioner and, on appeal,
the Appeal Board. There is a residual route of challenge by way of judicial
review.

156
[2016] 1 WLR 2118.
157
Ibid at [39].
158
[2023] AC 505 at [48]. See also Lord Burnett of Maldon CJ’s reference to James in
Attorney General’s Reference (No 1 of 2022) [2023] KB 37 at [47] and [116] as
typical example of proof of the relevant ingredients of the offence is sufficient to
justify any conviction as proportionate interference with fundamental rights without
the need for a fact-specific proportionality assessment in individual cases.
 - 111 -

297. These concerns have to be addressed before the court launches

into a Hysan proportionality analysis on a fact-specific assessment in
individual case.

298. There is no systemic challenge to the POO regime in the

present case. The respondent does not contend that the finality laid down
by section 44A(7) (confining the avenue of further challenge to a
prohibition to judicial review) is constitutionally disproportionate.

299. In these circumstances, the real debate in the present context is

not whether there is any scope for advancing “operational proportionality”
challenge against a prohibition when the “systemic proportionality” under
the POO is not in issue 159 . Neither the Chief Justice nor Ribeiro PJ
discussed this issue in their draft judgments. I prefer to leave it open as it
may be subject to further debate in another case for which an application for
leave to appeal to this Court is forthcoming.

300. The immediate issue before us is whether “operational

proportionality” of a prohibition could be considered in the context of the
criminal proceedings instead of an application for judicial review. In the
absence of any contention that the restriction on avenue for judicial redress
by section 44A(7) is disproportionate, I agree with the Chief Justice that the
constitutional challenge does not make any difference in the present case.

301. In any event, as indicated earlier, I agree with Ribeiro PJ that

the judge erred in coming to the conclusion that the Commissioner was
under a positive duty to put forward alternatives for the consideration of the
organiser.

159
The expressions of “operational proportionality” and “systemic proportionality” are
taken from the judgment of the Court of Appeal in Leung Kwok Hung v Secretary for
Justice (No 2) [2020] 2 HKLRD 771 at [182].
 - 112 -

Chief Justice Cheung:

302. Accordingly, the Court unanimously allows the appeal, restores

the conviction of the respondent and remits the appeal against sentence to
the judge for determination.

(Andrew Cheung) (R A V Ribeiro) (Joseph Fok)

Chief Justice Permanent Judge Permanent Judge

(M H Lam) (Murray Gleeson)

Permanent Judge Non-Permanent Judge

Mr William Tam SC, DDPP and Mr Edward Lau, SPP, of the Department
of Justice, for the respondent (appellant)

Mr Robert Pang SC and Mr Chris Ng, instructed by Cheng & Co, for the
appellant (respondent)