1. On 4 October 2019, the Chief Executive in Council (“CEIC”) imposed a prohibition on the wearing of masks and other facial coverings at certain public gatherings. This was effected by the enactment of the Prohibition on Face Covering Regulations (Cap. 241K) (“PFCR”) by the CEIC in exercise of her powers under the Emergency Regulations Ordinance (Cap. 241) (“ERO”). 2. These appeals arose from proceedings brought by members and former members of the Legislative Council (“LegCo”) (“the applicants”) against the CEIC and Secretary for Justice (“the Government”) to challenge the constitutionality of the prohibition on face coverings. 3. The question at the heart of the appeals was whether in the light of the Basic Law of the Hong Kong Special Administrative Region (“Basic Law”), the CEIC was lawfully given power by LegCo to make the PFCR under the ERO. If the ERO was determined to be constitutional and the PFCR duly made thereunder, the other principal question on the appeals was whether the prohibitions contained in the PFCR were proportionate, and therefore lawful, restrictions of protected rights. 4. The Courts below had differed on these issues. The Court of First Instance (“CFI”) had decided that the ERO was not compatible with the Basic Law and was therefore unconstitutional. The CFI also held that the prohibitions in the PFCR, in respect of unauthorised assemblies, public meetings and public processions, were a disproportionate restriction on the freedom of assembly, freedom of speech and right to privacy protected in the Basic Law and Hong Kong Bill of Rights. 5. The Court of Appeal (“CA”) reversed the CFI decision on the constitutionality of the ERO and held that the PFCR was lawfully enacted under the ERO. The CA also differed in part from the CFI on the issue of proportionality of the PFCR, holding that the prohibition on wearing face coverings at unauthorised assemblies was proportionate but the prohibitions on face coverings at public meetings and public processions were not. 6. On these appeals, the Court of Final Appeal (“CFA”) rejected the applicants’ challenge to the constitutionality of the ERO. Although, under the Basic Law, power to make legislation is vested in LegCo and that general legislative power cannot be delegated, the power to make subsidiary legislation can be delegated by LegCo to another person or body, including the CEIC. The CFA concluded that the ERO was not a delegation to the CEIC of general legislative power to make primary legislation but was instead authority to make subsidiary legislation in times of emergency or public danger. It held that the ambit of the power to make subsidiary legislation under the ERO in a situation of emergency or in circumstances of public danger, although wide and flexible, was not unconstitutional. That power was not wholly unlimited but, on the contrary, was subject to meaningful control: by the requirements of the ERO itself; by judicial control through judicial review; by legislative control through the procedure of negative vetting by LegCo; and by the requirement in the Basic Law that any regulations under the ERO which restricted protected rights must satisfy the requirements of being prescribed by law and proportionate. 7. The CFA also rejected the applicants’ other constitutional challenges to the ERO and so proceeded to consider the parties’ respective contentions as to whether the prohibitions in the PFCR were proportionate. The CFA held that, although the PFCR restricted the freedom of assembly, freedom of speech and right to privacy, which were protected rights under the Basic Law and BOR, these rights were not absolute rights and were subject to lawful restrictions including the interests of public safety, public order and the protection of the rights of others. Whether the restrictions in the present case were lawful depended on the application of the four-stage proportionality analysis by which, in Hong Kong, restrictions on protected rights were measured for their lawfulness. 8. The CFA noted that the applicants had not sought to challenge the proportionality of the prohibition in the PFCR on the wearing of face coverings at unlawful assemblies. This had all along been accepted by the applicants to be rationally connected to the Government’s legitimate aim in making the PFCR and was proportionate as being no more than necessary to achieve that aim and struck a fair balance between an individual’s rights and the societal benefits served by the restriction. 9. In relation to the further prohibitions on the wearing of facial coverings at unauthorised assemblies, public meetings and public processions, the CFA held that each of these prohibitions was proportionate in that it was directed to the legitimate aim of the prevention and deterrence of violence before a peaceful public gathering had deteriorated into violence. The need for preventative measures was not limited to those situations in which an offence under the Public Order Ordinance (Cap. 245) had already taken place. These restrictions were proportionate and no more than reasonably necessary. They also struck a fair balance between the rights of individuals and the societal benefits of the encroachment into those rights. 10. In reaching these conclusions, the CFA stressed a number of factors in the unchallenged evidence filed by the Government concerning the degeneration of law and order in Hong Kong by early October 2019. These showed that the PFCR was made to address an ongoing situation of violence and unlawfulness existing over a period of months and which led the CEIC to conclude there was an occasion of public danger under the ERO. The wearing of facial coverings had an emboldening effect on protesters and their supporters and individuals were abusing their anonymity by acting with a sense of impunity and an ability to evade police investigation. The situation on the streets of Hong Kong had become dire. Members of the public were fearful of going out and there was significant inconvenience caused to the public at large by the blockage of roads and closure of public transport facilities. Due weight should be given to the interests of those who might have wished to demonstrate peacefully but who were deterred because of the ongoing violence and, similarly, to those persons who had sustained personal injury or property damage as a result of the actions of the violent protesters. The interests of Hong Kong as a whole should be taken into account since the rule of law itself was being undermined by the actions of masked protesters who, with their identities concealed, were seemingly free to act with impunity. The PFCR was a proportionate response on the part of the Government. 11. The CFA therefore dismissed the applicants’ appeals (in FACV 6, 7 & 8 of 2020) and allowed the Government’s appeal (in FACV 9 of 2020).