Applying 'Proportionality Test', Hong Kong Top Court Holds Face Mask Ban Unconstitutional [Read Judgment]

The Chief Executive in Council of Hong Kong, Carrie Lam, had introduced the Prohibition of Face Covering Regulation on October 5, 2019. As per Section 3 of the Ordinance, a person must not use any facial covering that is likely to prevent identification while the person is at an unlawful assembly (whether or not the assembly is a riot); an unauthorized assembly; or a public meeting/procession. Further, a person who contravenes the said provision shall be liable to imprisonment for 1 year and fine.

Allegedly, the blanket ban was imposed to target the pro-democracy protesters who had been demanding the right to general suffrage amongst other rights. The protesting Hong Kongers had made black clothing and face masks an unofficial symbol of the movement.

The High Court held a two-day hearing to review the mask ban. The order passed by Justices Godfrey Lam and Anderson Chow in case titled "Leung Kwok Hung v. Secretary for Justice and Chief Executive in Council" on November 18 read,

"The provisions in S. 3…of the PFCR are rationally connected to legitimate societal aims that the respondents intend by those measures to pursue but the restrictions…impose on fundamental rights also go further than is reasonably necessary for the furtherance of those objects and therefore fail to meet the proportionality test."

In Hysan Development v. Town Planning Board, the Court of Final Appeal of Hong Kong had laid a proportionality assessment test. It prescribed a three-step process of asking:

"(i) whether the intrusive measure pursues a legitimate aim; (ii) if so, whether it is rationally connected with advancing that aim; and (iii) whether the measure is no more than necessary for that purpose."

It was further held that Section 5 of the Ordinance which empowered a police officer to stop a person and require him to remove the facial covering in a public place went further than what was "reasonably necessary" and failed to meet the "proportionality test".

The Petitioner had also challenged the power of the Chief Executive in Council to pass such a law. It was contended that the delegation of legislative powers upon him under the Emergency Regulation Ordinance contravened the Constitutional Framework under the Hong Kong Basic Law.

In this regard the court said,

"…the ERO, insofar as it empowers the CEIC to make regulations on any occasion of public danger, is incompatible with the Basic Law."

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