Background to the Appeals 1. Since June 2019, Hong Kong has experienced a series of protests in opposition to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019. The protests have escalated into serious social unrests and public disorder, including assaults on persons, arsons, and vandalisms on public transport facilities and highways. In response to the dire situation, the Chief Executive in Council (“CEIC”) exercised the power under section 2 of the Emergency Regulations Ordinance (“ERO”) and announced the enactment of the Prohibition on Face Covering Regulation (“PFCR”). The applicants in these appeals brought judicial reviews challenging the constitutionality and legality of ERO and PFCR. 2. In its judgment, the Court of First Instance (“CFI”) declared that the ERO was not compatible with the Basic Law (“BL”) and ruled that, while sections 3 and 5 of the PFCR were rationally connected to the legitimate social aims, the restrictions that sections 3(1)(b), (c), (d) and 5 imposed on the fundamental rights went beyond what was reasonably necessary for the furtherance of those objects. It declared that such sections were null, void, and of no effect. The respondents appealed, and each of the applicants cross-appealed. Judgment 3. The Court of Appeal (“CA”) partially allows the respondents’ appeals and dismisses the applicants’ cross-appeals. The CA upholds the constitutionality of the ERO insofar as it empowers the CEIC to make emergency regulations on any occasion of public danger. In respect of the PFCR, there is no challenge against section 3(1)(a) relating to unlawful assembly. The CA upholds the constitutionality of section 3(1)(b) relating to unauthorized assembly. The CA holds that sections 3(1)(c) and (d), relating to public meeting and public procession respectively, and section 5 on police powers in relation to facial covering, are all unconstitutional. Reasons for the Judgment Constitutionality of ERO 4. In holding that the ERO does not contravene the BL as it does not confer on the CEIC general legislative power to make primary legislation: (1) The CA reiterates that the court has jurisdiction and constitutional duty to scrutinize the constitutionality of a pre-1 July 1997 law adopted as part of the laws of the HKSAR. In so doing, the court upholds the preeminence of the BL as a living constitutional instrument over all pre-1 July 1997 law even after adoption as laws of the HKSAR, which is consistent with the purpose of article 160 of the BL and the Decision of the Standing Committee of the National People’s Congress (“NPCSC”) dated 23 February 1997. (2) The CA holds that the constitutionality of the ERO is informed by the theme of continuity. After reviewing the relevant law and authorities, the CA observes that for the exercise of the general legislative power, the constitutional arrangement under the BL broadly resembles the past before 1997 subject to the change of constitutional order. (3) Before 1997, the Pre-97 LegCo was the legislature of Hong Kong vested with general legislative powers exclusively by the Letters Patent. The Governor was not. The Pre-97 LegCo was bound by the Letters Patent and other constitutional requirements in exercising its general legislative powers. Under the common law, subject to the restriction that it could not abdicate its general legislative powers, the Pre-97 LegCo could delegate to the Governor limited legislative power to make subordinate legislation by virtue of a specific enabling ordinance. When called upon, the courts would examine the enabling ordinance and the regulations made thereunder to see if they were ultra vires the Pre-97 LegCo or the enabling ordinance, as the case might be. (4) After 1997, the LegCo is the only institution vested with general legislative powers exclusively under the BL. The CE does not have the general legislative power to legislate. In exercising its functions and powers, the LegCo is bound by the BL and other constitutional requirements. Under the same common law principle, the LegCo can delegate to the CE power to make subordinate legislation by an enabling ordinance, as acknowledged under article 56(2) of the BL. When a challenge is made, the court can examine the constitutionality of the enabling ordinance, or the constitutionality of the subordinate legislation made thereunder, as the case may be. (5) The CA therefore holds that under the constitutional framework of the BL, the LegCo can delegate to the CEIC legislative powers by an enabling ordinance to make emergency regulations provided that they are subordinate legislation. (6) The CA further holds that the BL contemplates a wide range of options available to the NPCSC and the Government allowing different and specific measures to be made to address the varying exigencies of emergency or public danger generally: (a) In the case of a declared state of war or turmoil endangering national unity or security beyond the control of the Government, the Central People’s Government (“CPG”) may issue an order applying the relevant national laws in Hong Kong: article 18. (b) The Government may ask the CPG for assistance from the garrison for maintenance of public order or disaster relief: article 14(3). (c) The CE may adopt executive and administrative measures in emergencies: article 56(2). (d) The CE may make a request to the President of the LegCo to convene an emergency session of the LegCo: article 72(5). (e) The CE may invoke the ERO to make emergency regulations. As article 56(2) of the BL recognizes, under the common law, the CE can make emergency regulation pursuant to an enabling ordinance. As at 1 July 1997, the only piece of enabling ordinance in that regard was the ERO. So both the ERO and the CE’s power to invoke it to make emergency regulations were clearly within the contemplation of the drafters of the BL. They must have regarded the ERO to be compatible with the BL so that it would remain as part of the laws of HKSAR after 1997. Based on past invocations, it is powerful and versatile enough to enable the CE to legislate speedily and effectively to meet all and every kind of emergency and public danger that imposes serious and subsisting threats to Hong Kong and its citizens. (7) The theme of continuity strongly suggests that the ERO, as an integral option for tackling emergency and public danger, is constitutionally compliant. If the ERO were held to be unconstitutional, it would leave a significant lacuna in the law. The CE would be deprived of the powers to respond swiftly, flexibly and sufficiently by the necessary making emergency regulations even though the circumstances clearly warrant it and it is in the public interest to do so. (8) The CA further holds that the constitutionality of the ERO is also supported by a proper construction adopting an updated analysis of its principal features with reference to contemporaneous jurisprudence. The ERO confers on the CEIC limited power to make subordinate legislation, and not primary legislation, in a state of emergency or public danger: (a) Under the relevant law, if a sudden emergency arises it may be essential to give the executive wide and flexible powers to deal with it by emergency regulations whether the legislature is sitting or not. By nature, emergency or public danger is not capable of exhaustive definition, which means that usually a general or board definition is used. It requires an urgent and effective response to avoid an imminent threat, prevent a worsening of the situation or mitigate the effects of the emergency. The executive needs wide and flexible powers to deal with every and all exigencies expeditiously and effectually. The emergency regulations are necessarily wide and extensive in scope. They may even dis-apply or amend a primary legislation. Considered in this proper context, the width and extensive scope of emergency regulations that can be made by the CEIC under the ERO does not render them to be primary legislations in nature. (b) Because of the contrary context, various provisions of the ERO have dis-applied the relevant provisions of the Interpretation and General Clauses Ordinance (Cap 1). (c) The CE’s decision to invoke the ERO and the emergency regulations made are subject to close scrutiny. She can only invoke it when there is a public danger, which condition must be strictly adhered to. Her decision that an occasion of public danger existed is subject to judicial review. She must also act bona fide in furtherance of the statutory purpose of the ERO. The emergency regulations are subject to judicial review on their constitutionality and vires. Their duration is also subject to judicial review. (d) The emergency regulations made under the ERO are subject to the negative vetting procedure. Under the procedure, the Government will ordinarily present a LegCo Brief, which is a public document and supply further information as requested by the LegCo. The LegCo Brief and such information will provide the necessary materials to facilitate the mounting of a legal challenge. (e) The LegCo exercises control over the emergency regulations made by the CE under the ERO by means of the negative vetting procedure or by repeal by primary legislation. Constitutionality of PFCR 5. The PFCR imposes restrictions on fundamental rights and must satisfy the prescribed by law requirement and the proportionality test. In determining whether the PFCR satisfies the proportionality test, the CA adopts the stricter standard of no more than necessary. It was accepted by the applicants’ counsel that section 3(1)(a) of the PFCR (prohibition in respect of unlawful assembly) was proportional. 6. Section 3(1)(b) concerns the use of facial coverings at an unauthorized assembly. The CA first points out that the rights of demonstration and of assembly are not absolute. Restriction on freedom of peaceful assembly in public places may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic. In analyzing different scenarios of unauthorized assembly as envisaged under section 17A(2) of the Public Order Ordinance (“POO”), the CA rules that the power under POO must be exercised for the purpose of maintenance of public safety, public order, and the protection of the rights and freedom of others. Further, such exercise must be subject to the test of proportionality on an operational level. Unless there are violent or other reprehensible conducts of the part of some demonstrators posing serious and imminent risk to public order, there should be prior warnings and the issuance and announcement of an order under section 17(3) of the POO before more drastic actions like arrests and dispersals are taken. After an order for stop and dispersal, the gathering should be discontinued. A person cannot be found to have refused, or willfully neglected, to obey such an order unless that person is aware of the order; and a person cannot be regarded as knowingly taking part in an unauthorized assembly unless he or she is aware of the unauthorized nature of the gathering or the order for stop and dispersal. 7. The CA holds that there are valid and serious public order concerns for unauthorized assembly. The CA highlights the pre-emptive nature of the provisions relating to unauthorized assembly and there are safeguards in the actual operation of the POO regime against unjustified interference with the rights of peaceful demonstration and assembly. 8. The CA construes person “at an unauthorized assembly” to include those remain at the assembly after being aware of the unauthorized nature of the assembly and reasonable opportunity have been given to him to disperse and leave the scene. The CA stresses that it should be the duty of all citizens who treasure the rule of law as the core value to maintain the rule of law. Hence, in the wake of an order for stop and dispersal, a responsible law-abiding citizen should follow the direction instead of remaining there in defiance of such order and direction. By remaining at the assembly, even without the commission of further act of violence, such person perpetuates the worsening situation which could potentially escalate to serious violent confrontations and frustrate the crowd control scheme. 9. On the other hand, a mere bystander or passer-by cannot be regarded as people “at the assembly”. 10. When a person lawfully wears a mask in a lawful public assembly or procession, which is somehow hijacked by others participating in it, that person should be able to resort to the defence of reasonable excuse under section 4of the PFCR so long as they are not aware of any order made under section 17(3) of the POO or they have not had a reasonable opportunity to leave the scene after becoming so aware. 11. Section 3(1)(b) can be considered on its own. Given the public order concerns in respect of unauthorized assembly amidst the fluidity in terms of the rapid deterioration of many large scale processions and demonstrations into violent riots with most of the rioters adopting the black bloc strategy to escape from responsibility for very serious criminal acts, the CA is of the view that such ban is no more than necessary to achieve the legitimate aims. The need to deter people from wearing facial coverings to frustrate the legitimate aims of the statutory scheme under the POO applies with equal force in the context of unlawful assembly as well as unauthorized assembly. 12. The CA is also satisfied that on a systemic level the prohibition under section 3(1)(b) of the PFCR strikes a fair balance between the societal benefits pursued by the restriction and the inroads made to the rights of the individual subject to the same. 13. For these reasons, the CA reverses the CFI’s holding on the proportionality of section 3(1)(b). 14. In light of the power to regulate the safe and peaceful conduct of lawful assembly and the power to disperse a gathering when it was hijacked by violent or disorderly conducts, the CA finds no justification for the further restrictions on the lawful public assembly or public procession under sections 3(1)(c) and (d). 15. As regards section 5 of the PFCR, the CA considers that the police have already had the power to order a person to reveal identity by removing facial covering under section 54(1)(a) of the Police Force Ordinance and section 49(1) of the POO. The powers conferred under section 5 are much wider. It involves a temporary restriction on the liberty of a person, and an interference of the privacy of a person. It finds that the statutory powers already in place are sufficient to address the law enforcement objectives. The CA finds no justification for a wider power envisaged under the section, and that such wide and unqualified power also contravenes the concept of law providing proper safeguard against arbitrary interference of fundamental rights. For these reasons, the CA upholds the CFI’s decision that section 5 failed to meet the proportionality test. ERO not impliedly repealed 16. The CFI held that the ERO was not impliedly repealed by the Hong Kong Bills of Rights Ordinance (“HKBORO”). The applicants in HCAL 2945/2019 cross-appealed against this ruling. The CA agrees with the CFI that a permissible, and indeed the proper, construction is that the ERO is to be read subject to section 5 of the HKBORO. The CA rejects the submission that such a construction was inappropriate and unworkable. When and even if a regulation enacted by the ERO does have the effect of derogating from any rights protected under the HKBORO, such a regulation is still subject to the tests of “prescribed by law” and “proportionality”. For these reasons, the CA upholds the CFI’s ruling in this respect. ERO is prescribed by law 17. The CFI also held that the ERO did not fall foul of the “prescribed by law” requirement. All the applicants in these appeal cross-appealed against this ruling. It was submitted that section 2(1) of the ERO did not meet the “prescribed by law” requirement because it was too uncertain in law as to the scope of the power conferred on the CEIC and the manner on which it exercised its power. The CA agrees with the CFI that the ERO does not by itself restrict or limit any fundamental rights. It is therefore not subject to a “prescribed by law” requirement challenge. Rather, if and when a particular regulation enacted under the ERO which does provide restrictions on the rights, such a regulation must then meet the “prescribed by law” requirement. The CA further holds that, in any event, on a proper construction, the ERO cannot be said to have conferred “unfettered and unlimited” power on the CEIC with “no independent safeguards against abuses or excesses”. The reasons are that first, the true nature of emergency regulations makes it impossible to provide exhaustive definition in advance. Second, the mere use of general wordings in an enactment does not by itself necessarily mean that it falls foul of the legal certainty test. Whether it does so is still a question of construction made in its proper context. Finally, the exercise of power under the ERO and the emergency regulations are subject to negative vetting and judicial review scrutiny. For these reasons, the CA rejects the applicants’ cross-appeal on this ground. ERO permits the enactment of PFCR 18. The CFI rejected the applicants’ argument that the general wordings of section 2(1) of the ERO did not allow the Government to adopt measures that infringe the fundamental rights of an individual and hence the PFCR was illegal. By a Respondent’s Notice, the applicants in HCAL 2945/2019 asked the CA to affirm the CFI’s judgment also on this ground. The CA rules that, by adopting purposive interpretation, in using the general wordings, the legislature objectively intended section 2(1) to permit, if necessary, the imposition of restriction on rights and freedoms when enacting a relevant regulation under the ERO. This is so as, because of its nature, the general wordings of the ERO were intended to confer a wide power on the CEIC to enact regulation and to implement measures to combat emergency and public danger. The CA also accepts the respondents’ submissions that, when reading the ERO as a whole, the legislature when enacting the ordinance did have the objective intent that regulations enacted under the ERO may, if necessary, impose restrictions on rights and freedoms. For these reasons, the CA refuses to affirm the CFI’s decision based on this ground.