2014 Legal Aid Department Annual Report
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  Chapter 3  
Case of Public Interest or Concern
 

GA & ORS v DIRECTOR OF IMMIGRATION, FACV No. 7, 8, 9 & 10 of 2013

This case concerns mandated refugees and screened-in torture claimants’ right to work in Hong Kong pending resettlement. All the appellants had been in Hong Kong for a prolonged period of time. They applied for judicial review of the decisions of the Director of Immigration (Director) who refused their application to work. They claimed they had the right to work in Hong Kong under Article 3 and Article 14 of the Hong Kong Bill of Rights (BoR), Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 33 of the Basic Law and also under the common law.

The Court of First Instance held against all the appellants in relation to their submissions based upon the above articles in BoR, ICESCR, Basic Law and common law. However, the court reiterated that the discretion vested in the Director, though wide in immigration matters, was not without limit and the conventional principles of judicial review continued to apply. In the cases of 2 of the appellants, the court took the view that their personal circumstances had not been properly considered by the Director. Hence the decisions to refuse these two appellants permission to work were quashed. The Director was required to consider their request afresh. On the other hand, applications of the other appellants for judicial review were dismissed.

All the appellants including those 2 who had succeeded in having the Director’s decisions relating to them quashed appealed to the Court of Appeal. They all wished to contend that they had a constitutional right to work. The Court of Appeal dismissed all the appeals, agreeing with the Court of First Instance that they could not rely on the above articles in BoR, ICESCR etc. to assert a constitutional right or common law right to work.

As important issues were raised and should be dealt with in the public interest, the appeals proceeded to the Court of Final Appeal (CFA). After hearing the submission from the parties, the CFA unanimously dismissed the appeals and held that the appellants do not have any right to work in Hong Kong while remaining in Hong Kong. A thorough analysis and discussion was made by the highest court about the grounds relied upon by the appellants.

It was held by CFA that the right under Article 3 of the BoR of not to be subject to torture or cruel, inhuman, or degrading treatment or punishment was an absolute one. Treatment was inhuman or degrading if, to a seriously detrimental effect, it denied the most basic needs of any human being. Where, as a consequence of the prohibition against working, inhuman or degrading treatment could be shown to exist or where the individuals concerned could be shown to be facing a substantial and imminent risk of inhuman or degrading treatment, the discretion on the part of the Director must be exercised in favour of the appellants or persons like them by giving permission to work if such evidence existed. The case of Ubamaka v Secretary for Security (above) and R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 was applied.

The appellants sought to rely on Article 14 of the BoR which protects a person against arbitrary or unlawful interference with, inter alia, his privacy right. In connection with this argument, discussion was made about Section 11 of the Hong Kong Bill of Rights Ordinance (HKBoRO) which provides that this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation, as regards persons not having the right to enter and remain in Hong Kong. The appellants contended that this Section 11 only relates to legislation governing the entry into, right to remain in and departure from Hong Kong, but not legislation that is concerned with the appellants’ activities while staying in Hong Kong including legislation that confers a right on the Director to allow the appellants to work in Hong Kong while remaining here. Hence they argued they were entitled to rely on this Article 14 and Section 11 did not apply in their cases. The CFA rejected such argument and ruled that Section 11 must also, from an immigration control point of view, generally cover the activities which a person in Hong Kong may be permitted to carry out and must include whether a person should be permitted to work. It was held that the Director’s discretion to determine whether or not persons in the position of the appellants should be permitted to work came within the scope of immigration control.

In respect of the appellants’ reliance on Article 6 of the ICESCR on a person’s right to gain their living by work, the CFA held that an individual could not rely on the content of that international obligation if the covenant had not been incorporated into the domestic legislation of Hong Kong. In so far as it concerned a general, unrestricted right to work for persons like the appellants, the most that could be said was that there was some allowance made for persons like the appellants to be permitted to work but that was far from the general, unrestricted right which was said to exist.

On the interpretation of Article 33 of the Basic Law which concerns freedom of choice of employment of Hong Kong residents, the CFA decided it does not refer to the right to work in general. It is much narrower than that, dealing only with the freedom of choice of occupation. It does not imply a right to take up available employment in the first place. Nor does it confer an unqualified right to obtain employment.

The final argument advanced by the Appellants was that there was a right to work at common law. The CFA noted that no authority had been cited to support this argument. Furthermore, in light of the Court’s analysis relating to the HKBoRO, the ICESCR and the Basic Law, it was decided that a right of the appellants to work under the common law does not exist.

The CFA at the end remarked that despite their ruling that there is no constitutional right to work, the Director still has to exercise her discretion within limits whether to permit persons like the appellants to work. The precise limits will have to be worked out in future cases but as discussed in relation to Article 3 of the BoR, one very important factor affecting the exercise of the discretion is whether there would be inhuman and degrading treatment to the applicants if they were refused permission to work.

 

HKSAR v Chan Yau Hei

The offence of “Outraging Public Decency” is an old common law offence. It is often resorted to by a prosecutor where no statutory offence exists to restrict or penalise specific conduct or behaviour which, by ordinary standards of common decency, members of the public would consider “lewd, obscene or disgusting”.

The nature of the act includes anything which an ordinary decent person would find to be shocking, disgusting and revolting and is not restricted to sexual indecency. In the nineteenth century, it was used to prosecute cases of indecent exposure; performing sexual activities in public; and even digging up from graveyards lawfully buried corpses in various states of decomposition to sell for dissection to medical schools. More recently, and in Hong Kong, it has been used to prosecute persons who secretly film up women’s skirts on escalators and filming them while they used the lavatory.

 
Modern case law establishes that the offence has two elements:
(i)   the act was of such a lewd character as to outrage public decency; and
(ii)   it took place in a public place and must have been capable of being seen by two or more persons who were actually present, even if they had not actually seen it.
 

The second element i.e. the public element, of the offence came under the scrutiny of the Court of Final Appeal of Hong Kong (CFA) in HKSAR v Chan Yau Hei in FACC 3/2013 (judgment delivered on 7 March 2014).

In June 2010, the appellant, a 26 year-old proponent of political reform in Hong Kong, posted in Chinese on an online discussion forum the following message:

“ 我哋要學猶太人炸咗中聯辦 # fire #”.
Translated in English as: “We have to learn from the Jewish people and bomb the Liaison Office of the Central People’s Government #fire#”.

This message was sent from his computer and to an internet discussion forum where it could be seen and downloaded by others who used the forum.

The appellant was charged with the offence of "Committing an act outraging public decency". He was convicted on his own plea of guilty before the magistrate. But after his application to reverse his plea a few weeks later and appeal in the High Court failed, he took his case to CFA with the assistance of the Legal Aid Department.

The central issue was whether the internet discussion forum was a place or premises at or in which, at common law, the offence could be committed.

 
The public element of this common law offence has two parts, namely:
(i)   the act must be done in a place to which the public has access or in a place where what is done is capable of public view; and
(ii)   it must be capable of being seen by two or more persons who are actually present, even if they do not actually see it (the two person rule).
 

The Secretary for Justice argued that the offence should, as a matter of logical and jurisprudential construction in light of modern societal and technological developments, be held to cover messages posted on the internet and, therefore, the public element requirement for the offence is not confined to meaning only a physical place, but should include a broader concept of any location to which the public has access, such as the internet.

Their Lordships disagreed and accepted the appellant’s submission that the public element of the offence required the act to be committed in a physical, tangible place.

Their Lordships further commented that it is trite law that in a common law system, the development of the laws by the courts over time, by clarification and modification to meet new circumstances and conditions, is not constitutionally objectionable provided that it does not result in judicially extending the boundaries of criminal liability. To hold that the internet is a public place for the purposes of the offence would involve either dispensing with the first part of the public element of the offence or substantially extending its meaning and would therefore amount, impermissibly, to judicially extending the boundaries of criminal liability.

They considered that, whilst the message posted by the appellant on the internet discussion forum was deserving of condemnation, the public element of the offence was not satisfied in this case.

In the words of Mr. Justice Fok PJ., with which the full court agreed:
“In short, for the purposes of the offence, the internet is properly to be regarded as a medium and not a place”

This is not the end of the matter. Their Lordships went on to cite examples where the offence of outraging public decency might be constituted by a message posted on an internet discussion board, for instance, the display of an outrageous message on a mobile internet device in a physical place such as a public park or public transportation to which the public has access or where what is done is capable of public view.

However, there was no evidence in the present case of where and by whom the message posted by the appellant was read. There was simply no sufficient evidence to satisfy the public element or the two person rule of the offence. Having expressed its concern that under the present law the issue as to whether or not similar conduct may or may not be open to prosecution simply because of where the internet message is seen gives rise to arbitrariness, CFA commented that the task of addressing the mischief of lewd, obscene and disgusting material posted on the internet was best to be addressed by way of legislation.

 
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