Tutorial 4: Human Rights Protection in the HKSAR

Tripartite framework unusual that there are 3 constitutions protecting fundamental

rights in HK
Rights both in BORO and BL? -> Depend on who you are arguing for

Question 1
On 2 October 2015, the Hong Kong Legislative Council passed the Prohibited Flag Ordinance
(PFO). The long title of the PFO states: An Ordinance to partly implement Article 23 of the
Basic Law, which prohibits secession. Section 3 states Anyone that publicly displays a flag
with the Hong Kong colonial armourial bearing is guilty of an offence and is liable to a fine of
$5,000. A group known as Localism frequently uses the colonial flag during
demonstrations. The leader of the group, Tsui, argues that the PFO violates the right to
freedom of expression protected by Article 27 of the Basic Law and Article 16 of the Bill of
Rights Ordinance. He would like to initiate judicial review. Advise him on the substantive
issue of whether the PFO violates the freedom of expression.
Issue: Is the restriction of rights constitutional?
(Bear in mind who you are advising: argue based on it)
(1) identify the rights
o freedom of expression art 21 and art 16
o define the scope of the rights: include freedom to impart information through all
kinds of media
(2) absolute rights?
o Not absolute, restrictive rights here
(3) infringement of provisions?
o s.3 is limiting peoples ability in terms of the forms of expression
(4) restriction prescribed by law?
o (a) specified in law? (i.e. restriction in the form of statute?)
o (b) sufficiently precise to guide behavior (i.e. clear enough)
examples of ambiguities
flag
o What about a banner inclusive of the drawing of a flag?

publicly
o In a place with how many people?
o Image as Facebook picture and has it set to public?

(5) proportionality (3 stages) test?

o (a) Legitimate aim (is protecting national security a legitimate aim?)
protection of national security to prohibit secession
secession may threatens national security and causes social disharmony
-> possibly legitimate
o (b) Rationally connected to the aim?
Displaying colonial flag necessarily harms national security, therefore
restriction of right is needed?
Secession: To withdraw formally from membership in a state, union,
or other political entity (Oxford dictionary: but when construing
literal meaning, dictionaries can be tricky, always a dictionary that
supports your stance)
Here, not necessarily convey secession; but might incite secession
etc
Under what circumstances would such display harms national security?
Govt: By analogy in Ng Kung Siu in which national and regional
flags are important symbols of PRC and thus desecration of flag

should be prohibited
(c) No more than necessary?
Mwan: Complete ban is more than necessary (Probably unconstitutional)
Should be confined to the circumstances
Govt: By analogy in Ng Kung Siu, Flags are symbol of national unity and
sovereignty should prohibit merely a trivial mode of expression
Question 2
o

Alexis Fung is the leader of Real Democracy, a group that advocates democracy in Hong
Kong. On the morning of 1 August 2014, the Chief Executive submitted to the National
Peoples Congress Standing Committee a report on political reform. Real Democracy was of
the view that this report misrepresented the views of Hong Kong people. With the assistance
of online tools Fung called for a sit-in to be held on the public roads outside the Tamar
government headquarters (including Lung Wo Road, Lung Wui Road, Tim Mei Avenue and
Tim Wa Avenue) on that night. He did not pre-notify the police. In the end, 30,000 people
attended the protest. The gathering flooded the Tamar area, blocking traffic, and causing
inconvenience to those working in the neighbourhood, but no violence ensued. The sit-in
lasted day and night for 3 months. Fung was subsequently prosecuted for, inter alia,
organising an unauthorized public meeting contrary to s 17A(3)(b)(i) of the Public Order
Ordinance. He would like to challenge the constitutionality of the relevant provisions of this
Ordinance. Advise him on this issue.
Q.2
Leung Kwok Hung case
Everything in the ordinance is constitutional apart from the part of ordre public
POO is quite a restrictive ordinance, set up after the 1997 riots quite a draconian
law.
Why notification system constitutional?
o Protect the polices right so that they can help maintain public order
o Determine how much manpower to deploy
However, the court may revisit the constitutionality of POO provisions
Ds defence? (infringement of the right of assembly)
Notification requirement? (crux of Leung Kwok Hung)
o Prescribed by law?
Looking at the term rather than the scenario
POO s.8: is it clear enough? Probably yes: very clear instruction of what
to do
o Proportionality test?
Legitimate aim:
YES, maintain public order
Rational connection?
notification is required to for police to plan for maintain public
order
but without notification system, public order can still be
maintained?
No more than necessary?
Penalties (another provision)
o Imprisonment for 3 - 5 years too serious?
o Why participants and organizers are equally guilty?
o Not
differentiate
peaceful
and
non
peaceful
demonstration
Time limit (online notification, quite easy -> why need so many

days?)

Question 3
The Social Welfare Departments old age allowance (commonly known as
scheme allows elderly persons aged between 65-69 to receive $1,090 per
satisfy a means test of a monthly income limit of $6,660 and an asset limit of
allows elderly persons aged 70 or above to receive this sum without being
The objective of this scheme is to show a token of appreciation to the elderly.

fruit money)
month if they
$186,000; and
means tested.

The government recently introduced an old age living allowance (OALA) scheme that
enables elderly persons aged 65 or above to receive $2,200 per month if they satisfy the
above-mentioned means test; those aged 70 or above who fail the means test will still
receive the fruit money of $1,090 per month. The objective of OALA is to alleviate poverty.
The government claims that if no means test is set for those aged 70 or above, additional
expenditure in the first year will soar from $6.2 billion to almost $10 billion.
Lam Pak, aged 73, possessing assets of $200,000, with no spouse or children, is currently
receiving fruit money from the government. He argues that OALA is discriminatory on the
ground of property and wealth, and would like to challenge the constitutionality of the
scheme by judicial review. Advise him.

the restriction on the right to equality in the form of a means test

is the differential test justified?

2 stages test
(1): is there a differential treatment?
o Yes: based on some characteristics like age and property (fails or pass the
mean test)
(2): Justification test
o legitimate test
ensure the viability and long-term sustainability of the resource
allocation system
To allocate resources more properly/ somebody with higher
assets gets lowers social payment
o Rationally connected to the legitimate aim?
Yes:
Expenditure may skyrocket in the absence of differential
treatment -> not sustainable
Further the aim?
No: P may argue
the mean test does not reflect the level of poverty, he himself is

also in poverty
Is it no more than necessary?
Govt: rigorous proof for welfare
P may argue: 73 year old; no income; no children and spouse: not
necessary
But social welfare is a social economic rights
the court is not institutionally equipped to answer the question
how how much an old person needs to live easier to satisfy
the test

Art 36 analysis (right to social welfare) (CFA discussion)

Wide margin of appreciation from the government and in light of deference, why still
lost?
Art 25 analysis
difficulty there is a need to establish comparator someone vis-is-vis

Question 4
Have Hong Kong courts been consistent in their rigour of proportionality analysis? Discuss
with reference to human rights cases that you have studied in this course.

When
o
o
o

Analogy to Kong Yu ming

o Facts
Govt argues Madam Kong should not be allowed for the welfare
payment otherwise the cost will soar
But the court found that given the evidence presented to it,
newcomers would not make the expense on social welfare rise -> no
rational connection

First limb - legitimate aim

o Common law offence already exists, no need for criminal law provisions to
specifically focus on homosexuality -> then not legitimate to have such
provisions

Third limb sometimes flexible sometimes more restrictive (depend on the context
and case)
o Balance between the need to protect national security and the protection of
freedom of expression:

proportionality test applies

Whether such categorization is justified
A balancing test from the no more than necessary test
Apply third limb more rigorously? depend on the context and case (factspecific)

Exams:
2 approaches
(1) what is most advantageous to your clients

(2) look at the facts, if similar to some cases, adopt similar reasoning

the court when talking about deference -> cites fok chun wa
the rights match together -> helpful to separate them?
Social economic rights