Tag: mask law

‘Mask Law’ Found Unconstitutional by High Court

The ‘Mask law’ introduced by Carrie Lam under the Emergency Regulations Ordinance, Cap 241 was found to be unconstitutional by the High Court in a Judgement issued today, 18 November, 2019.

There were two separate court actions against the ‘Mask Law’ and they were heard together. Here is the press summary, the full judgement can be found here HCAL2945/2019 and HCAL2949/2019

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2949 of 2019

IN THE MATTER of the Emergency Regulations Ordinance, Cap 241
and
IN THE MATTER of the Prohibition on Face Covering Regulation, Cap 241K

Between
LEUNG KWOK HUNG (梁國雄)
and
SECRETARY FOR JUSTICE – 1st Putative Respondent
CHIEF EXECUTIVE IN COUNCIL – 2nd Putative Respondent

DATES OF HEARING:  31 October and 1 November 2019

DATE OF JUDGMENT:  18 November 2019

REPRESENTATION:

Gladys Li SC, Mr Johannes Chan SC (Hon), Mr Earl Deng, Mr Jeffrey Tam, Mr Geoffrey Yeung and Ms Allison Wong, instructed by Ho Tse Wai & Partners, for the 1st to 24th Applicants in HCAL 2945/2019

Mr Hectar Pun SC, Mr Lee Siu Him and Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid Department, for the Applicant in HCAL 2949/2019

Mr Benjamin Yu SC, Mr Jenkin Suen SC, Mr Jimmy Ma and Mr Mike Lui, instructed by the Department of Justice, for the Putative Respondents in both HCAL 2945/2019 and HCAL 2949/2019

SUMMARY:

1.  These are two applications for judicial review seeking to impugn the Emergency Regulations Ordinance (Cap 241) (“ERO”) and the Prohibition of Face Covering Regulation (Cap 241K)(“PFCR”) made thereunder as being invalid and unconstitutional.

2.  By Ground 1, the applicants contend that the ERO is unconstitutional because it amounts to an impermissible grant or delegation of general legislative power by the legislature to the Chief Executive in Council (“CEIC”) and contravenes the constitutional framework under the Basic Law.  The court holds that the ERO, insofar as it empowers the CEIC to make regulations on any occasion of public danger, is incompatible with the Basic Law, having regard in particular to Arts 2, 8, 17(2), 18, 48, 56, 62(5), 66 and 73(1) thereof.  The court leaves open the question of the constitutionality of the ERO insofar as it relates to any occasion of emergency.

3.  As to Ground 2, the court holds that the ERO was not impliedly repealed by s 5 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).  Insofar as it is invoked in situations not falling within the kind of public emergency referred to in the HKBORO, the Bill of Rights is not suspended and the measures adopted will have to comply with it.

4.  On Ground 3, the court holds that the ERO does not in itself fall foul of the “prescribed by law” requirement (ie the principle of legal certainty).  Where regulations and measures are adopted under the ERO that curtail fundamental rights, the entire relevant body of law including the regulations and measures have to be taken together to see whether they meet the requirement of sufficient accessibility and certainty.

5.  Under Ground 4, the applicants contend that the general words in s 2(1) of the ERO are not to be construed as allowing the Government to adopt measures that infringe fundamental rights of the individual and that the PFCR is therefore beyond the power conferred on the CEIC by the ERO.  The court finds that it is not necessary to deal with this Ground and does not express any view on it.

6.  Under Ground 5A, the applicants contend that s 3 of the PFCR fails to satisfy the proportionality test (as explained in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, §§134‑135).  The court holds that the provisions in s 3(1)(a), (b), (c) and (d) of the PFCR are rationally connected to legitimate societal aims that the respondents intend by those measures to pursue but the restrictions that sub‑paragraphs (b), (c) and (d) impose on fundamental rights go further than is reasonably necessary for the furtherance of those objects and therefore fail to meet the proportionality test.

7.  Under Ground 5B, the applicants contend that s 5 of the PFCR fails to satisfy the proportionality test.  The court holds that the measure introduced by s 5 of the PFCR is rationally connected to the legitimate societal aims pursued but the restrictions it imposes on fundamental rights also go further than is reasonably necessary for the furtherance of those objects and therefore fail to meet the proportionality test.

8.  In the light of these conclusions, there will be a further hearing for the parties to make submissions on the appropriate relief and costs.

Lam Pours Fuel on the Fire

The Hong Kong government’s bypassing of Legco to unilaterally introduce a ‘mask law’ is an insult to all HongKongers and a violation of our rights under both the Basic Law and Hong Kong law.

Carrie Lam has ignored millions of HongKongers marching peacefully, she has ignored the input of the people invited to attend the community discussions that she instigated.

Instead of listening to the people she claimed to represent when elected, and looking to attempt to defuse the volatile situation she created with the Extradition Law, Lam has instead trampled over the rights and freedoms of all HongKongers.

There was no violence or masks at the original protests against the  extradition law. 

The violence was instigated and initiated by the HK Police who actively and deliberately choose to use excessive force to disperse peaceful protestors and who allowed triads to attack the public.

Masks arrived because of the police’s excessive, indiscriminate and illegal use of tear gas and pepper spray. 

The ‘mask law’ does not affect those Lam labels as ‘violent’ protestors, the penalties for ‘unlawful assembly’ far exceed those of the ‘mask law’. 

The newly instigated law looks to intimidate and shutdown the peaceful protestors who are freely expressing their opinions as enshrined in the Basic Law and allowed under HK Law.

It also appears to be worded to suppress and interfere with the Freedom of the Press and the media’s ability to cover the protests and the excessive violence of the HK Police against protestors and members of the public. It is after all hard to film and report when you have a faceful of tear gas and/or pepper spray.

The protestors violence directly stems from the police’s own actions.

The damage to the MTR stems from it’s own injunction turning passengers into criminals and from picking sides rather than remaining neutral and simply moving people around.

The only way ‘healing’ and peace can come is from the government and the new ‘mask law’ shows Lam has no interest in resolving the violent situation she created. Beijing only understands force, subjugation and repression of freedoms.

Lam will go down in history as woman who destroyed Hong Kong, we can only hope that the blood on her hands gives her nightmares for the eternity.