“ Public meetings and processions are the lifeblood of free assembly. Powers to ban or control them involve prior restraint on free assembly which is a freedom of very great importance. So the circumstances in which such powers can be used should be limited to those in which prior restraint is a proportionate response. Suppose, for example, the Commissioner of Police reasonably suspects, for stated reasons which the courts can ascertain are good, that a meeting or procession would lead to an unreasonable obstruction or a serious threat to public safety. ”

“ In today’s Hong Kong street demonstrations, both stationary and moving, form a significant and even potent element of public discourse. As long as they are peaceful, there is ample scope for such demonstrations under our constitutional arrangements. A peaceful demonstration is a sign of freedom and can have a legitimate effect on policy. ”

“ When deciding whether a scheme permitting restrictions on free assembly is or is not constitutional, one must bear in mind that this freedom is closely allied to freedom of expression and freedom of the media. ”

“ Legal certainty is not hostile to purposive rather than literal statutory interpretation. It does not deprive the common law of its capacity for development. Nor is it hostile to the amelioration of the common law by equity. ”

“ Legal certainty does not take away the flexibility needed to do justice under private and public law in the myriad circumstances of life. But it has its proper place. And in that place it is indispensable to the rule of law. Nowadays there are many things that the law properly leaves to discretion, but the maintenance of constitutional rights and freedoms is not among them. ”

“ There is nothing to show that policing measures short of banning a public meeting or procession can never be effective. Being less drastic than a ban, such measures are inherently less vulnerable to a constitutional challenge. ”

“ This is how the court put it:
“These explanations of the concepts on their own still admittedly do not guarantee an application of statute law which is in conformity with the Constitution. For the constitutional law assessment, two limitations are significant which are found in the statute itself and which have as a consequence that bans and dispersals can in essence only be considered for the protection of elemental legal interests. A mere endangering of the public order will not in general suffice.” ”

“ The Court observed that a demonstration may give offence to those with opposing views and demonstrators must be able to proceed without fear of physical violence by opponents; such a fear would have a deterrent effect (para.32) . It held that in a democracy, the right to counter-demonstrate cannot extend to inhibit the exercise of the right to demonstrate.
“Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere : a purely negative conception would not be compatible with the object and purpose of Article 11. ”

“ The freedom of speech and the freedom of peaceful assembly are precious and lie at the foundation of a democratic society.
2. These freedoms are of cardinal importance for the stability and progress of society for a number of inter-related reasons. The resolution of conflicts, tensions and problems through open dialogue and debate is of the essence of a democratic society. These freedoms enable such dialogue and debate to take place and ensure their vigour. A democratic society is one where the market place of ideas must thrive. ”

“ There cannot be a restriction for any other purpose. This is in contrast to constitutional instruments where the test for restriction is formulated only as a general formula, for example, by reference to what is necessary in a democratic society, without any specification of the purposes that may legitimately be pursued by a restriction. ”

“ Now in the latest i.e. the 9th (2004) edition they discuss democratic necessity in connection with proportionality. These are areas of the law in which the courts’ task can be as difficult as their responsibility is heavy. So be it. What matters is that people can be confident of enjoying their fundamental rights and freedoms in full measure. It would help if they received an assurance that those rights and freedoms cannot be restricted except in conformity with an objective standard of democratic necessity established and enforced through an independent judicial process. ”

“ By applying a proportionality test for considering any restriction on the right of peaceful assembly, a proper balance is struck between the interests of society on the one hand and the individual’s right of peaceful assembly on the other . In formulating the terms of the proportionality test in the Hong Kong context, it is of critical importance to bear in mind that the legitimate purposes for restriction of this right have been set out in the relevant constitutional text. ”

“ The Basic Law speaks of freedom of assembly while the Bill of Rights speaks of the right of assembly. Rights connote benefits derived from duties owed by others while freedoms connote benefits derived from the absence of restraint upon oneself. Free assembly consists essentially of an absence of restraint but includes, as the European Court of Human Rights held in Plattform Arzte für das Leben v. Austria (1991) 13 EHRR 204, the right to positive protection by the state of one’s exercise of this freedom. ”

“ A procession is an effective means of communication because it involves an expression of the views of the participants as they move from one place to another. A procession has been aptly called an assembly in motion. The message the participants are seeking to communicate may have a wide exposure. A procession is a potent method of expression and is a common phenomenon in democratic societies including Hong Kong. ”

“ As explained in Salmond on Jurisprudence, 12th ed. (1966) at p.65, “a government of laws is preferable to one of men not simply by virtue of being less uncertain but by reason of releasing the citizen from the mercy of other human beings.” ”

“ These freedoms enable citizens to voice criticisms, air grievances and seek redress. This is relevant not only to institutions exercising powers of government but also to organizations outside the public sector which in modern times have tremendous influence over the lives of citizens. Minority views may be disagreeable, unpopular, distasteful or even offensive to others . But tolerance is a hallmark of a pluralistic society. Through the exercise of these freedoms minority views can be properly ventilated.
3. A peaceful assembly may consist of a procession, as it did in the present case. ”

“ This, too, cannot save the Commissioner of Police’s powers of prior restraint under the challenged schemes. The judiciary protects constitutional rights and freedoms by circumscribing powers to restrict them, not by transferring such powers to itself. ”

“ Some fundamental rights and freedoms are secure by virtue of being non-derogable. Others are derogable. To be secure they have to be kept free from any restriction that is repugnant to them or renders their due enjoyment uncertain. While extremely important, the freedoms of assembly, procession and demonstration are not non-derogable. So they can be restricted. But freedoms would be insecure indeed if they can be restricted to serve an elusive purpose. The concept of ordre public is, as the Chief Justice observed in the flag desecration case of HKSAR v. ”

“ Whenever the advantages of living in an organised society have to be paid for by a diminution of individual freedom or autonomy, it is the business of the judiciary to see that the price is not too high. Nor should it ever be thought that only individuals are protected when freedoms are preserved. The state itself, too, is protected. This was clearly explained by Hughes CJ when delivering the opinion of the United States Supreme Court in De Jonge v. ”

“ Every person who holds or assists in holding a public procession after the same has become an unauthorized assembly is guilty of an offence. The maximum penalty is five years’ imprisonment on conviction on indictment or a fine of $5,000 and three years’ imprisonment on summary conviction. Section 17A (3) (b) (i) . The appellants were summarily convicted of this offence. In spite of the warning by the police, the notification requirement was not complied with and the public procession in question became an unauthorized assembly. ”

“ Of course the fact that a provision is condemned as extremely uncertain cannot be taken to mean that any lesser degree of uncertainty would necessarily be acceptable in a provision of that or any other kind. ”

“ But a concept may be wide even though it is not elusive. It is natural and appropriate to confer rights and freedoms in wide terms, but permitting wide restrictions on rights and freedoms endangers them. ”

“ This is “the belief that a government with a majority ought to be able to push any measure through Parliament”. Entrenched constitutions like the Basic Law do not subscribe to that belief. Basic Law rights and freedoms are beyond our legislature’s power to undo. ”