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Raymond Wacks Our Flagging Rights

Court of Final Appeal unanimously ruled that freedom of speech does not include

the right to deface our national flag and regional emblem

Article 19 of BL prohibits defacing the flag

o These acts are regarded as criminal The granting of appeal by the magistrate in two flag desecrating cases reflects a

point of law of great and general importance whether section 7 of the National

Flag and National Emblem Ordinance contravened the BL

In ruling that flag burning is not allowed, the court tried to explain that even so itdoes not contravene Art27 of the BL, Art19 of the ICCPR, and Art16 of BOR.

The protection of public order (ordre public) was legitimate to limit free speech

o Weak argument flag burning does is not an invitation to violence

o Leading common law jurisdictions do not have such laws

The admitted restriction on free speech is di minimis (so small that it isnt even

important/ worth noting)

o Weak argument a limit on free speech is a major problem

o Freedom of expression is so important that the courts should give it a

generous interpretation

HKSAR inherited the common law system judges must resist pressures from

the national level (ei: PRC constitution, NPCSC)

o Judges must think of their judgments as perpetuating the common law

system and the values it entails

o Judges interpretations should depict our system in the best possible light

Po Jen Yap Collateral Challenges in Criminal Proceedings: Mayday for citizens radio

Secretary of Justice v. Ocean Technology

Facts

D applied for a license to run Citizens Radio, public broadcasting station, in 2005

Application rejected by CE in council alleged that before the application D has

already been broadcasting without permission, an offence under the

Telecommunications Ordinance

D charged criminally is Magistrates Court. In their defense their argued that the

Ordinance contravenes freedom of expression as guaranteed by Art 27 and 39 by

the BL

Magistrates Decision Decision for D.

Found that there was too much discretion on the CE in council under S13C of the

Ordinance to grant broadcasting licenses contravened Art 27 and 39 of BL

The power to grant licenses were not independent of the government violatedthe requirement of legal certainty to be constitutionally prescribed by law under

Articles 27 and 39 of BL.

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No way to appeal a rejection also unconstitutional

The decision to prosecute D was also unconstitutional

CoAs Decision

Disagreed with Magistrate.

Said that the defendant should not have raised a constitutional issue during

criminal proceedings he should have sought separate judicial review of thelicensing system

Court said that whether or not the Ordinance was constitutional doesnt matter

the case in hand was concerned with the statutory offence only. Court basicallysaying that the statute need not be constitutional for D to be guilty of the offence

o But by saying this the court has overlooked Ds argument as a defense to

the charges

Court held that it was not open for a defendant to raise the issue of legality of astatute as a defense.

Court held that there was no constitutional breach by the law it was necessary

that the government regulate the airwaves to ensure that it wouldnt beovercrowded and impede communications

By construing Ds right to free speech as right to broadcast, the court has

effectively justified restriction on Ds freedom of expression

o But it must be shown that the impugned right be prescribed by law and

necessary in a democratic society court hasnt shown this

In Leung Kwok Hung, the judge accepted that the commissioners powers to

restrict peaceful assembly was too vague and broad

o But CoA did not follow this precedent in this case