Public should take heed of important legal principles in exercising rights to freedom of expression and assembly

Both the Basic Law and the Hong Kong Bill of Rights guarantee the freedom of expression, peaceful assembly, procession and demonstration as fundamental rights. At the same time, they also recognise that these rights are not absolute and are subject to restrictions, which are necessary for respecting the rights of others and protection of public order.

There have been occasions where Government premises were unlawfully occupied by protestors that disrupted Government’s operation, it was not all that long ago when this happened during the protests in June and July 2019. There have also been times when peaceful events developed rapidly into violent ones and people resorted to unlawful means in carrying out their activities. To ensure the safety and security of those visiting or working in Government premises concerned, and the normal functioning of the offices, it is necessary from time to time for the Government to implement controls on the public meetings and processions that may be allowed to be held on its premises.

One example of such controls is the permission scheme that requires applications to be made for use of the East Wing Forecourt of the Central Government Office (Forecourt) for holding public order events. The legal challenge against the constitutionality of the permission scheme has come to an end with the Court of Appeal in its recent judgment upholding the constitutionality of the permission scheme and its ruling that it did not infringe the fundamental rights to freedom of expression and assembly (Cheung Tak Wing v Director of Administration [2020] HKCA 124).

In the decision, the Court of Appeal has enunciated important legal principles that sets out the proper limits of the exercise of such freedoms:

(1) The Government has proprietary rights in respect of its properties: The Government as the owner of its premises has the right to manage its premises and to implement measures to ensure that premises can be used for its proper purpose and function. The Government has a duty to take precautions so as not to compromise the premises’ proper function. The court also remarked that it was a misnomer to call the Forecourt the Civic Square, and it was wrong to perpetuate the mistaken characterisation of the primary function of the Forecourt by attributing symbolic significance to it as a public place for protest or demonstration.

(2) The Government owes a duty of care as to the safety and well-being of those working at Government premises: The Government has a duty to ensure that the activities on its premises would not compromise its normal and effective operations, as well as the safety of those visiting and working there.

(3) The Government needs to strike a balance between the need for public order and public safety and the orderly operation of the offices, and the need to facilitate public expression of opinion: The balance should be made by reference to the particular facts and circumstances of the case in question.

(4) The relevant factors when striking the balance include -

(a) The nature of the public meetings and processions, and the degree disruptions to the ordinary and peaceful use of the premises.

(b) The availability of alternative and equally effective means, manners and forms of exercise of freedom of expressions and demonstrations. This is relevant as there is no freedom of forum for exercising the said right.

The Court of Appeal has now affirmed that while the Government has a duty to facilitate public expression of opinions at or near its premises, it must also ensure this does not compromise the normal and effective operation and public safety including the safety of the other users of the premises.

The Government always respects and attaches great importance to the rights and freedoms (including the freedoms of assembly, of procession and of demonstration) protected under the Basic Law. However, it should be noted that the Court of Final Appeal in its judgment of Kwok Wing Hang & Others v Chief Executive in Council & Anor [2020] HKCFA 42 and Leung Kwok Hung v Secretary for Justice & Anor [2020] HKCFA 42 pointed out that: “None of these rights is absolute but may be subject to lawful restrictions. As will be apparent from its wording, the freedom of assembly, procession and demonstration under Article 17 of the [Bill of Rights] is not absolute but is subject to lawful restrictions including the interests of public safety, public order and the protection of the rights and freedoms of others.” Members of the public, in exercising their rights and freedoms, should take heed of the important legal principles.

April 26, 2021