Hong Kong, Court of Final Appeal, 21 December 2020, Kwok Wing Hang and Ors v Chief Executive in Council (No. 6)
Case overview
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Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
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Type of Court (territorial scope)
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Outcome of the decision
Link to the full text of the decision
General Summary
In 2019, the Hong Kong government enacted the Prohibition on Face Covering Regulations (“PFCR”) pursuant to the Emergency Regulations Ordinance (Cap 241) (“ERO”) to prohibit the wearing of masks and other facial coverings at certain public gatherings, following months of violent protests on the streets.
Thereafter, 24 members of Hong Kong’s Legislative Council (“LegCo”) lodged an application for the judicial review of the ERO and the PFCR made thereunder. The Court of First Instance (“CFI”) originally held that the ERO was “incompatible with the Basic Law” but this decision was partially overturned by the Court of Appeal (“CA”) in 2020, with the onset of COVID-19. The present case was a further appeal to the HKCFA which confirmed that the PFCR had been a proportionate response on the part of the government.
The HKCFA held that the rights to assembly, speech, and privacy were not absolute; they were subject to lawful restrictions – the prohibitions under PFCR were proportionate and struck an adequate balance between the rights of individuals and the societal benefits of encroaching upon these rights.
Facts of the case
The Applicants in Kwok Wing Hang and Ors v Chief Executive in Council and Anor (No 5) [2020] 2 HKLRD 771, [2020] HKCA 192 appealed to the CFA on the following grounds: (i.e. the same grounds that failed in the CA):
- The ERO is unconstitutional (the “Constitutionality Argument”); and
- Sections 3(1)(b) – (d) of the PFCR made thereunder were disproportionate (the “Proportionality Argument”).
Type of measure challenged
Measures, actions, remedies claimed
- Declaration of the ERO as unconstitutional and invalid
- Declaration of the measures imposed under the PFCR as disproportionate and legally invalid.
Individual / collective enforcement
Type of procedure
Reasoning of the deciding body
Rejecting the Constitutionality Argument:
First, the HKCFA acknowledged that HKSAR’s legislative power is only vested in the LegCo and the ERO must not delegate to the Chief Executive in Council (“CEIC”) “general legislative power to make primary legislation” (at [37]).
However, the HKCFA highlighted that the power of the CEIC to make emergency regulations was adequately controlled and restrained by:
- The internal requirements of the ERO (see [50] – [54]);
- The courts (i.e. judicial control) (see [55] – [56]);
- The LegCo (see [57] – [65]); and
- The Basic Law (see [67] – [71]).
The HKCFA also swiftly dismissed three cursory arguments put forth by the Applicants:
- The principle of legality argument: the values and principles of the common law cannot allow the legislature to confer an unfettered power such as the ERO on the Executive (at [77]).
- The ERO is inconsistent with section 5 of the Hong Kong Bill of Rights Ordinance (“HKBORO”) and should hence be repealed (at [79]).
Rejected as “there is no question of any implied repeal of the ERO” since section 2A(1) of the Interpretation and General Clauses Ordinance (Cap 1) simply requires the ERO to be construed in such a way as to be compatible with the Basic Law.
- The ERO contravenes Art 39(2) of the Basic Law, which provides that the rights and freedoms enjoyed by Hong Kong residents “shall not be restricted unless as prescribed by law” (at [81]).
Rejected as the prescribed by law requirement is not directed at empowering legislation (e.g. ERO) which merely authorises the making of subsidiary legislation.
Rejecting the Proportionality Argument:
The HKCFA highlighted that the restrictions imposed under the PFCR provision satisfied the four-step proportionality test.
In supporting the reasoning, the HKCFA also gave an account of the available evidence showing, among other things, the alarming breakdown of law and order and escalating violence around the time of introduction of the PFCR. (see [86] – [97]).
The HKCFA also emphasised that the freedom and rights alleged to be restricted by the PFCR (i.e. the freedom of assembly, procession and demonstration, the freedom of speech and expression and the right to privacy) were not absolute but may be subject to lawful restrictions. (at [99] – [100]).
The allegedly conflicting mask-wearing requirements due to COVID-19:
The CFA opined that this was a supervening circumstance that was “wholly irrelevant” to the proportionality of the PFCR, which was to be judged by reference to the circumstances pertaining in October 2019 when the prohibition on facial coverings was made (at [143]).
Conclusions of the deciding body
The CFA partially overruled the CA.
Although the power under the ERO to make regulations in cases of "emergency" or "danger to public security" is broad, it is not unconstitutional and is still subject to judicial control, the "negative vetting" of the Legislative Council, and the Basic Law (at [57]).
CFA agreed with HKCA that the application of section 3(1)(b) PFCR (i.e. prohibition of facial covering at unauthorised assembly) was a proportionate means to achieve the legitimate aims of (1) the deterrence and elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the law; and (2) the facilitation of law enforcement, investigation, and prosecution of these persons (at [102], [125]).
This same reasoning was applied equally to sections 3(1)(c) – 3(1)(d) PFCR; therefore, these sections were both proportionate.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom of expression
- Right to privacy
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of assembly, procession, and demonstration, Art 17 of the HKBORO and Art 27 of the Basic Law
- Freedom of speech and expression, Art 16 of the HKBORO and Art 27 of the Basic Law
- Right to privacy, Art 14 of the HKBORO
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The proportionality test was applied to determine whether sections 3(1)(b) – (d) of the PFCR were disproportionate measures.
- Legitimate aim: Sections 3(1)(b) – (d) of the PFCR pursued the same legitimate aims of preventing, deterring, and stopping violence, or at least assisting the police to detect and apprehend persons breaking the law (at [103]).
- Rational connection between the restrictions and their legitimate aims: by prohibiting the use of facial coverings at public events, the Government would directly address both unlawful behaviour itself and the emboldening effect the wearing of masks had on both violent and peaceful protestors alike; it would also assist in the identification of those persons breaking the law and facilitate their apprehension and prosecution (at [105]).
- Proportionality: On whether the restrictions were no more than necessary for achieving the legitimate aims, the CFA identified two errors in the CA’s Decision regarding PFCR sections 3(1)(c) – (d) of the PFCR:
(i) the acceptance that there is no simple dichotomy between peaceful and violent protesters and that it is important to give effect to the preventative and deterrent nature of the prohibition was ignored; and
(ii) it was erroneous to limit the need for preventative measures to be taken to those situations in which an offence under sections 17A(2)(a) or 17A(3) of the Public Order Ordinance (Cap 245) has been committed, because such measures do not hinge on the commitment of any offence thereunder ([125] – [126], and [129] – [130]). Whether the restrictions may implicate innocent bystanders or passers-by would be a matter of evidence in any given case, to determine if they were “at” the relevant public gathering for the purposes of the PFCR; they may also be able to rely on a defence of reasonable excuse or lawful authority under section 4 of the PFCR (at [132], [141]).
- On whether a fair balance has been struck: the Court held that there was a clear societal benefit in the PFCR when weighed against the limited extent of encroachment of the protected rights in question. Notably, the Court agreed that the interests of a range of different people – in particular, the interests of Hong Kong as a whole – should be given due weight in the balance. This is especial when the rule of law itself was being undermined by the actions of masked lawbreakers who were seemingly free to act without impunity with their identities concealed (at [146]).
Impact on Legislation/Policy
The issue of mask-wearing as part of measures to combat COVID-19 was irrelevant to this policy (at [142] – [143]).
Other notes
On the type of court: Courts in Hong Kong SAR only have territorial jurisdiction over the region
