Chief Justice Li:

The Basic Law contains constitutional guarantees for the freedoms that are of the essence of Hong Kong's civil society. We are concerned with the freedom of expression. The question in this appeal is whether the statutory provisions which criminalise desecration of the national flag and the regional flag are inconsistent with the guarantee of the freedom of expression. The statutory provisions in question are section 7 of the National Flag and National Emblem Ordinance (No. 116 of 1997) ("the National Flag Ordinance") and section 7 of the Regional Flag and Regional Emblem Ordinance (No. 117 of 1997) ("the Regional Flag Ordinance").

The flags as symbols

A national flag is the symbol of a nation. It is a unique symbol. All nations have flags. National emblems are also common.

The national flag is the symbol of the People's Republic of China. It is the symbol of the State and the sovereignty of the State. It represents the People's Republic of China, with her dignity, unity and territorial integrity.

The regional flag is the unique symbol of the Hong Kong Special Administrative Region as an inalienable part of the People's Republic of China under the principle of "one country, two systems". In this judgment, I shall refer to the People's Republic of China in full or as "PRC", and the Hong Kong Special Administrative Region in full or as "HKSAR" or as "the Region".

The intrinsic importance of the national flag and the regional flag to the HKSAR as such unique symbols is demonstrated by the fact that at the historic moment on the stroke of midnight on 1 July 1997, the handover ceremony in Hong Kong to mark the People's Republic of China's resumption of the exercise of sovereignty over Hong Kong began by the raising of the national flag and the regional flag. And the speech, which the President of the People's Republic of China then delivered, began with the words:

The question

The society in the People's Republic of China, the country as a whole, including the Hong Kong Special Administrative Region, has a legitimate interest in protecting their national flag, the unique symbol of the Nation. Similarly, the community in the Hong Kong Special Administrative Region has a legitimate interest in protecting the regional flag, the unique symbol of the Region as an inalienable part of the People's Republic of China under the principle of "one country, two systems". The existence of these legitimate interests has not been challenged in argument before us.

The question before us is whether these legitimate interests justify the restriction on the freedom of expression by the criminalisation of desecration of the national and regional flags. As is accepted by Mr McCoy SC, for the HKSAR Government, in the absence of such justification, the statutory provisions would be unconstitutional as contravening the Basic Law and the courts have the power and duty so to declare.

The PRC Law on the National Flag

The national flag was originally adopted by resolution of the First Plenary Session of the Chinese People's Political Consultative Conference on 27 September 1949, shortly before 1 October 1949, the founding date of the People's Republic of China. Paragraph 4 of that resolution read:

The PRC Law on the National Flag was adopted by the Standing Committee of the National People's Congress and promulgated by the President of the People's Republic of China on 28 June 1990 and became effective as of 1 October 1990. Article 1 states that this Law is enacted in accordance with the Constitution "with a view to defending the dignity of the National Flag, enhancing citizens' consciousness of the State and promoting the spirit of patriotism". Article 2 prescribes that the national flag shall be a flag with five stars and that it shall be made according to the specified Directions. Article 3 provides:

It was considered that the best method of providing for the criminal offence was to make such a supplemental provision to the Criminal Law. See the report dated 30 May 1990 of the Law Commission examining the draft law at the 14th meeting of the Standing Committee of the 7th National People's Congress held on 20 June 1990. That provision has now been replaced by a similar provision in Article 299 of the Criminal Law of the People's Republic of China.

The Basic Law

The application of national laws in the Hong Kong Special Administrative Region is governed by Article 18(2), which provides:

The National Flag Ordinance

With this addition to Annex III of the Basic Law, the HKSAR was obliged by virtue of Article 18(2) of the Basic Law to apply the PRC Law on the National Flag locally by way of promulgation or legislation. Accordingly, the legislature (then the Provisional Legislative Council) applied it in the HKSAR by legislation by the enactment of the National Flag Ordinance. Legislation as opposed to promulgation was appropriate since the national law had to be adapted for application in the HKSAR. The Ordinance provides for the use and protection of the national flag in the Region. The national flag must be displayed at main Government buildings. Sec 3(1). The Chief Executive may stipulate the organizations which must display or use the national flag and the other places at which, the occasions on which, the manner in which and the conditions under which, the national flag must be displayed or used. Sec 3(2). Sec 4 provides that a national flag which is damaged, defiled, faded or substandard must not be displayed or used. The national flag for flying may be manufactured in the Hong Kong Special Administrative Region only by enterprises designated by the Central People's Government and must be manufactured in accordance with the prescribed specifications. Sec 5(1) and 5(2). The national flag or its design must not be displayed or used in trademarks or advertisements, private funeral activities or other occasions or places stipulated by the Chief Executive. Contravention is a criminal offence. Sec 6(1) and 6(3). The provision in issue in this appeal, sec 7, provides:

A copy of the national flag that is not an exact copy but so closely resembles the national flag as to lead to the belief that the copy in question is the national flag is taken to be the national flag for the purposes of the Ordinance.

Article 10(1) and Article 10(2) of the Basic Law provide:

The Regional Flag Ordinance

This was enacted to provide for the use and protection of the regional flag. The Ordinance gives the Chief Executive a power, similar to that in the National Flag Ordinance, to stipulate for the display and use of the regional flag. Sec 3(1). Sec 3(2) and Schedule 3 set out the arrangements for the use and display of the regional flag. These provisions had originally been passed by the Preparatory Committee as provisional arrangements. They were made "to safeguard the dignity" of the regional flag and to ensure its correct use. They state that the regional flag and emblem:

The arrangements for use and display of the regional flag when flown together with the national flag are provided for, with prominence given to the latter. Sec 3(2) and Schedule 3. A regional flag which is damaged, defiled, faded or substandard must not be displayed or used. Sec 4. It must be manufactured in accordance with the prescribed specifications. Sec 5(1). It or its design must not be displayed or used in trademarks or advertisements or other occasions or places stipulated by the Chief Executive. Contravention is a criminal offence. Sec 6(1) and 6(2).

Section 7, the provision in issue in this appeal, provides:

There is a provision similar to that in the National Flag Ordinance that a copy of the regional flag is taken to be a regional flag for the purposes of the Ordinance.

The charges

The respondents faced two charges of desecration of the national flag and the regional flag contrary to section 7 of the National Flag Ordinance, and section 7 of the Regional Flag Ordinance respectively. The particulars of each offence were that the respondents on 1 January 1998 in Hong Kong desecrated the national flag and the regional flag respectively by publicly and willfully defiling the same.

The convictions

On 18 May 1998, both respondents were convicted of the two offences. Each respondent was bound over to keep the peace on his own recognisance of $2,000 for 12 months for each offence [1999] 2 HKC 10 at 13-16.

The facts which formed the basis of the convictions were not disputed before the Magistrate and can be briefly stated for the purposes of this appeal. As was stated in the Case for the 2nd Respondent (paras 2 and 3):

As to the regional flag, one section had been torn off obliterating a portion of the bauhinia design. A black cross had been drawn across that design. Three of the remaining four red stars had black crosses daubed over them. The Chinese character "shame" was written on the flag in black ink. As was part of a Chinese character which had been rendered illegible by the tear in the flag. Similar damage appeared on the reverse side.

During the procession, the respondents chanted "build up a democratic China". The 2nd respondent was reported to have stated to the press that "the damaging and defiling of the national and regional flags was a way to express the dissatisfaction and resistance to the ruler who was not elected by the people".

The respondents appealed against conviction to Beeson J in the Court of First Instance. On 8 December 1998 on the parties' joint application, she reserved the appeals to the Court of Appeal. On 23 March 1999, that Court (Power VP, Mayo and Stuart-Moore JJA) allowed the appeals and quashed the respondents' convictions [1999] 1 HKLRD 783, (also reported at [1999] 2 HKC 10).

Both before the Magistrate and the Court of Appeal, the only issues were whether section 7 of the National Flag Ordinance and section 7 of the Regional Flag Ordinance contravened the Basic Law. It was contended by the defence both before the Magistrate and the Court of Appeal that these provisions were inconsistent with Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and accordingly contravened Article 39 of the Basic Law.

Leave to appeal

On 20 May 1999, the Appeal Committee (the Chief Justice, Litton and Ching PJJ) granted leave to appeal to the Court of Final Appeal, certifying two points of law of great and general importance, namely: (1) Does section 7 of the National Flag Ordinance contravene the Basic Law? (2) Does section 7 of the Regional Flag Ordinance contravene the Basic Law ? These were the same issues as those before the Magistrate and the Court of Appeal and in essence were the only questions raised on the application for leave.

The new point

In his written Case, the 2nd respondent raised for the first time the new argument that there is no evidence to support the convictions. It ran as follows:

Both respondents were represented by counsel before the Magistrate. Before the Court of Appeal, the 1st respondent was represented by counsel instructed by the Director of Legal Aid; the 2nd respondent did not appear. At the hearing of the application for leave to appeal, both respondents were represented by counsel instructed by the Director of Legal Aid and opposed the application. Immediately after the leave application, the 1st respondent declined the further assistance of the Legal Aid Department and has since been unrepresented and has appeared before us in person.

At no stage was this new point raised by counsel for the respondents. And this point was not raised by the Magistrate or the Court of Appeal.

It is not surprising that this new point was not raised below by counsel or the Court. It is devoid of any merit. The offence under sec 7 of each Ordinance was the desecration of the flag in question by defiling it. The ordinary meaning of "defiling" plainly includes dishonouring. By carrying and waving the defaced flags during the public procession and then tying them to some railings at the end of the procession, the respondents were clearly dishonouring the flags. These acts clearly amount to desecration by defiling.

Freedom of speech and freedom of expression

The freedom of speech is guaranteed by Article 27 of the Basic Law. This provides:

The Hong Kong Bill of Rights Ordinance, Cap. 383, in fact provides for the incorporation of the provisions of the ICCPR into the laws of Hong Kong. Article 16 in Part II of that Ordinance is in identical terms to Article 19 of the ICCPR.

Flag desecration is a form of non-verbal speech or expression. Mr McCoy SC, for the Government, accepts that the freedom of speech or the freedom of expression are engaged in this case. He accepts that section 7 criminalising flag desecration in both Ordinances constitutes a restriction of such freedoms. For the purposes of this appeal, it makes no difference whether the restriction is considered as a restriction of the freedom of speech or the freedom of expression. This is because, as is accepted by Mr McCoy, by virtue of Article 39(2) of the Basic Law, a restriction on either freedom cannot contravene the provisions of the ICCPR. Both the Magistrate and the Court of Appeal have referred to the freedom of expression rather than the freedom of speech. I shall do likewise. But my judgment would apply equally if the restriction is considered in relation to the freedom of speech.

The extent of restriction

It is common ground that the statutory provisions criminalising desecration of the national and regional flags restrict the freedom of expression. Before considering whether the restriction is justified, it is important to examine first the extent of the restriction. This is because when one comes to consider the issue of justification, one must have in mind what it is that has to be justified, in particular, whether it is a wide or limited restriction that has to be justified. The wider the restriction, the more difficult it would be to justify. The appellant submits that the freedom of expression is implicated only in a minor way as only one mode of expression is prohibited. The respondent argues that the restriction is wide. The argument is that it prohibits not merely one mode of expression but by rendering unlawful one form of political protest also the substance of what may be expressed.

As has been observed, flag desecration is symbolic expression or non-verbal expression. A person desecrating a national flag as a means of expression would usually be expressing a message of protest. But the message he seeks to convey may not be clear. The message may be one of hatred or opposition directed to the nation. Or it may be one of protest against the ruling government. Or the person concerned may be protesting against a current policy of the government. Or some other message may be intended. One has to consider the surrounding circumstances of the flag desecration in question to ascertain the message which is sought to be communicated. In the present case, the respondents were protesting against the system of government on the Mainland. This appears from the fact that the Chinese character "shame" had been written on the flags taken together with the chanting of "build up a democratic China" during the procession and what the 2nd respondent was reported to have stated to the press at the time.

The prohibition of desecration of the national and regional flags by the statutory provisions in question is not a wide restriction of the freedom of expression. It is a limited one. It bans one mode of expressing whatever the message the person concerned may wish to express, that is the mode of desecrating the flags. It does not interfere with the person's freedom to express the same message by other modes. Further, it may well be that scrawling words of praise on the flags (as opposed to words of protest which is usually the message sought to be conveyed) would constitute offences within section 7 of both Ordinances, namely, that of desecrating the flag by scrawling on the same. If this be right, then it would mean that the prohibition not only bans expression by this mode of a message of protest, but also other messages including a message of praise. But a law seeking to protect the dignity of the flag in question as a symbol, in order to be effective, must protect it against desecration generally.

Is the restriction justified ?

Freedom of expression is not an absolute. The Preamble to the ICCPR recognises that the individual has duties to other individuals and to the community to which he belongs. Article 19(3) itself recognises that the exercise of the right to freedom of expression carries with it special duties and responsibilities and it may therefore be subject to certain restrictions. But these restrictions shall only be such as are provided by law and are necessary:

Here, the Government principally relies on the restriction as necessary for the protection of public order (ordre public). Two questions arise. First, are the legitimate societal and community interests in the protection of the flags in question, which I have held to exist, within the concept of public order (ordre public) ? Secondly, if the answer is in the affirmative, is the restriction to the right to freedom of expression necessary for their protection ?

Within public order (ordre public) ?

Mr McCoy SC, for the Government, submits that whatever its boundaries, the concept of public order (ordre public), includes these legitimate interests in the protection of the flags in question. Ms Eu SC for the 2nd respondent asserts the contrary, that whatever its boundaries, those interests are incapable of coming within the concept.

It is important to recognise that the concept of public order (ordre public) is not limited to public order in terms of law and order. This is well recognised by textwriters and has been accepted in decisions in Hong Kong. See Tam Hing-yee v Wu Tai-wai [1992] 1 HKLR 185 at 190 and Secretary for Justice v Oriental Press Group Ltd [1998] 2 HKLRD 123 at 161 (CJHC and Keith J at first instance) (also reported at [1998] 2 HKC 627) and on appeal to the Court of Appeal Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 at 307I (also reported at [1999] 2 HKC 24). The expression used is not merely "public order" but "public order (ordre public)". The inclusion of the words "ordre public" makes it clear that the relevant concept is wider than the common law notion of law and order. In this case, both the Magistrate and the Court of Appeal appear to have dealt with the concept of public order (ordre public) as limited to public order in terms of law and order. That approach is not correct.

One of the few judicial discussions counsel has been able to locate in Hong Kong or elsewhere on public order (ordre public) was contained in the first instance judgment in Secretary for Justice v Oriental Press Group Ltd (at 669C - H):

In that case, the Court held that the contempt of court offences under the common law of scandalising the court and of interference with the administration of justice as a continuing process constituted permissible restrictions on the freedom of expression. This decision was upheld by the Court of Appeal. The Court at first instance held that the due administration of justice is within public order (ordre public). This was conceded before the Court of Appeal (at 39E).

In the work quoted in the passage in the judgment set out above, the author said that the concept of public order (ordre public) "is not absolute or precise, and cannot be reduced to a rigid formula but must remain a function of time, place and circumstances" and concluded his discussion in these terms:

" In sum: "public order" may be understood as a basis for restricting some specified rights and freedoms in the interest of the adequate functioning of the public institutions necessary to the collectivity when other conditions, discussed below, are met. Examples of what a society may deem appropriate for the ordre public have been indicated: prescription for peace and good order; safety; public health; esthetic and moral considerations; and economic order (consumer protection, etc.). It must be remembered, however, that in both civil law and common law systems, the use of this concept implies that courts are available and function correctly to monitor and resolve its tensions with a clear knowledge of the basic needs of the social organization and a sense of its civilized values." (Kiss at 302).

 

The Siracusa Principles on the limitation and derogation provisions in the ICCPR, agreed to in 1984 by a group of experts, contained the following statement on "public order (ordre public)":

See (1985) 7 Human Rights Quarterly 3 - 14.

In 1986, in Advisory Opinion No. OC - 6/86, on the word "laws" in Article 30 of the American Convention on Human Rights, the Inter-American Court of Human Rights expressed the view:

Reported at (1986) 7 Human Rights Law Journal 231. Article 30 of that Convention provides that the restriction on rights or freedoms may not be applied "except in accordance with laws enacted for reasons of general interest and for the purpose of which the restrictions have been established". Article 32(2) provides: "The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society".

The following points can be drawn from the materials referred to above. First, the concept is an imprecise and elusive one. Its boundaries cannot be precisely defined. Secondly, the concept includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole. Examples include: prescription for peace and good order; safety; public health; aesthetic and moral considerations and economic order (consumer protection, etc.). Thirdly, the concept must remain a function of time, place and circumstances.

As to the time, place and circumstances with which we are concerned, Hong Kong has a new constitutional order. On 1 July 1997, the People's Republic of China resumed the exercise of sovereignty over Hong Kong being an inalienable part of the People's Republic of China and established the Hong Kong Special Administrative Region under the principle of "one country, two systems". The resumption of the exercise of sovereignty is recited in the Preamble of the Basic Law, as "fulfilling the long-cherished common aspiration of the Chinese people for the recovery of Hong Kong". In these circumstances, the legitimate societal interests in protecting the national flag and the legitimate community interests in the protection of the regional flag are interests which are within the concept of public order (ordre public). As I have pointed out, the national flag is the unique symbol of the one country, the People's Republic of China, and the regional flag is the unique symbol of the Hong Kong Special Administrative Region as an inalienable part of the People's Republic of China under the principle of "one country, two systems". These legitimate interests form part of the general welfare and the interests of the collectivity as a whole.

That these legitimate interests are within public order (ordre public) does not conclude the question. One must examine whether the restriction on the guaranteed right to freedom of expression is necessary for the protection of such legitimate interests within public order (ordre public).

The Privy Council and the Hong Kong courts have held that the word "necessary" in this test should be given its ordinary meaning and that no assistance is to be gained by substituting for "necessary" a phrase such as "pressing social need", See Tam Hing-yee v Wu Tai-wai at 191, Ming Pao Newspapers Ltd v Attorney-General of Hong Kong at 919G - H, Wong Yeung Ng v Secretary for Justice at 40E - F, 53C - D, 59B. This approach is sound.

On 1 July 1997, the Standing Committee added the PRC Law on the National Flag to Annex III so that the Hong Kong Special Administrative Region has to apply it by legislation or promulgation in the Region. And the HKSAR's legislature discharged that obligation by enacting the National Flag Ordinance. At the same time, the HKSAR's legislature considered it appropriate to enact the Regional Flag Ordinance.

In applying the test of necessity, the Court must consider whether the restriction on the guaranteed right to freedom of expression is proportionate to the aims sought to be achieved thereby. See Ming Pao Newspapers Ltd v Attorney-General of Hong Kong at 917D - E. As concluded above, by criminalising desecration of the national and regional flags, the statutory provisions in question constitute a limited restriction on the right to freedom of expression. The aims sought to be achieved are the protection of the national flag as a unique symbol of the Nation and the regional flag as a unique symbol of the Hong Kong Special Administrative Region in accordance with what are unquestionably legitimate societal and community interests in their protection. Having regard to what is only a limited restriction on the right to the freedom of expression, the test of necessity is satisfied. The limited restriction is proportionate to the aims sought to be achieved and does not go beyond what is proportionate.

Hong Kong is at the early stage of the new order following resumption of the exercise of sovereignty by the People's Republic of China. The implementation of the principle of "one country, two systems" is a matter of fundamental importance, as is the reinforcement of national unity and territorial integrity. Protection of the national flag and the regional flag from desecration, having regard to their unique symbolism, will play an important part in the attainment of these goals. In these circumstances, there are strong grounds for concluding that the criminalisation of flag desecration is a justifiable restriction on the guaranteed right to the freedom of expression.

Further, whilst the Court is concerned with the circumstances in the Hong Kong Special Administrative Region as an inalienable part of the People's Republic of China, the Court notes that a number of democratic nations which have ratified the ICCPR have enacted legislation which protects the national flag by criminalising desecration or similar acts punishable by imprisonment. These instances of flag protection indicate that criminalisation of flag desecration is capable of being regarded as necessary for the protection of public order (ordre public) in other democratic societies.

Accordingly, section 7 of the National Flag Ordinance and section 7 of the Regional Flag Ordinance are necessary for the protection of public order (ordre public). They are justified restrictions on the right to the freedom of expression and are constitutional.

Having regard to this conclusion, it is unnecessary to deal with other arguments that were canvassed.

The answers to the certified questions of law are therefore as follows:

(1) Does section 7 of the National Flag Ordinance contravene the Basic Law ? The answer is no.

(2) Does section 7 of the Regional Flag Ordinance contravene the Basic Law ? The answer is no.

I would allow the appeal and would restore the convictions and the binding over ordered by the Magistrate.

Finally, I must record the Court's indebtedness for the invaluable assistance given to the Court by the arguments both written and oral presented and the materials produced by the respective teams of counsel led by Mr G McCoy SC, for the Government, and Ms Audrey Eu SC for the 2nd respondent. We also thank the 1st respondent who appeared in person and made a submission. Neither leading counsel appeared in the Court of Appeal. As I understand the position, the range and depth of the arguments and materials before us extended far beyond those before the Court of Appeal. Unfortunately, that Court did not have the benefit of these much fuller arguments and materials.

Mr Justice Litton PJ:

I agree with the judgment of the Chief Justice.

Mr Justice Ching PJ:

I also agree with the judgment of the Chief Justice.

Mr Justice Bokhary PJ:

My thinking in this case is in harmony with that of the Chief Justice.

The constitutional issue

The issue before the Court is whether our laws which protect the national and regional flags and emblems from desecration are constitutional. Those laws are contained in two statutory provisions. The first is s.7 of the National Flag and National Emblem Ordinance (No. 116 of 1997). It prohibits desecration of the national flag or emblem by publicly and willfully burning, mutilating, scrawling on, defiling or trampling on the same. The second is s.7 of the Regional Flag and Regional Emblem Ordinance (No. 117 of 1997). It lays down a similar prohibition in respect of the regional flag and emblem. The maximum penalty for contravention is the same under each section: a fine of up to $50,000 and imprisonment for up to three years.

The charges

On 1 January 1998 the respondents took part in a street procession. During the procession they carried defaced national and regional flags. At the end of the procession they tied the defaced flags to some railings.

Two charges were brought against them. Each charge was against both of them jointly. The 1^st charge was of desecration of the national flag, contrary to s.7 of the National Flag and National Emblem Ordinance. The particulars were that they desecrated the national flag by publicly and wilfully defiling it. The 2^nd charge was of desecration of the regional flag, contrary to s.7 of the Regional Flag and Regional Emblem Ordinance. The particulars were that they desecrated the regional flag by publicly and wilfully defiling it.

In the courts below

They challenged the constitutionality of the statutory provisions under which they were charged, basing their challenge on the right to freedom of expression. Their challenge failed at their trial in the Magistrate's Court. They were each convicted and bound over in a personal recognizance of $2,000 to keep the peace for a period of 12 months. They appealed against conviction to the High Court which referred the appeal to the Court of Appeal. Their constitutional challenge succeeded before the Court of Appeal which quashed their convictions. The prosecution appealed to this Court. So this constitutional issue is now before us.

Mere disobedience of s.4 directions?

Apart from her points on this constitutional issue, counsel for the 2^nd respondent has taken a point on a lower plane by arguing along the following lines. All that the respondents did was to disobey the directions contained in s.4 of each of the two ordinances mentioned above (for the disobedience of which directions no criminal sanctions are provided) that a national or regional flag or emblem which is damaged, defiled, faded or substandard must not be displayed or used.

I am unable to accept this argument. The purpose of the s.4 directions is to guide people who mean to do reverence to the flags and emblems. By complete contrast, the purpose of the s.7 prohibitions is to protect the flags and emblems from people who mean to desecrate them. And publicly and wilfully parading a defaced flag or emblem, having chosen the same for its defaced condition, is to defile the flag or emblem thus desecrating it. This appeal turns, therefore, on the constitutional issue. And I now deal with this issue.

Freedom of expression: substance and mode

Given the breadth to be ascribed to the word "speech" in the constitutional context, the freedom of speech and the freedom of expression amount to the same thing. I will use the word "expression". Articles 27 and 39 of our constitution the Basic Law guarantee the freedom of expression in Hong Kong. Article 27 of the Basic Law provides that:

Testing the matter by reference to ordre public, the first thing to face is this. As Professor Yash Ghai has pointed out (in "Human Rights in Hong Kong", ed. Raymond Wacks (1992), Ch.11, "Freedom of Expression" at p.391 and again in "The Hong Kong Bill of Rights: A Comparative Approach" eds Johannes Chan and Yash Ghai (1993), Ch. 8, "Derogations and Limitations in the Hong Kong Bill of Rights" at p.192) the ambit of the French expression ordre public is unclear. I accept that ordre public, as a public welfare concept, is something more than the mere converse of public disorder. But how much more? Where a concept is unclear the courts must clarify it before using it as a test by which to judge what, if any, restriction may constitutionally be placed on a fundamental right or freedom. To this end, I treat ordre public as being no wider a basis for justifying a restriction on such a right or freedom than the basis to which I now turn.

If any restriction on an Article 27 right or freedom is to be justified, it must, I think, be on the basis that it is reconcilable with that right or freedom. And no restriction on such a right or freedom can possibly begin to be regarded as reconcilable with that right or freedom unless the restriction is narrow and specific. That springs very clearly from the very nature of exceptions to rules when the rule guarantees a right or freedom and the exception places a restriction on that right or freedom. I will in due course expand upon all of this in the particular context of the actual issue in the present case.

Freedom of expression covers both substance (what is expressed) and mode (how it is expressed). Our national and regional flag and emblem protection laws, as I read them, affect only the latter. The significance of the absence of any restriction on the substance of expression is well illustrated - albeit in a context different from the present one - by the Australian case of Levy v. Victoria (1997) 189 CLR 579. That case concerned the validity of regulations which, for the purpose of promoting personal safety, imposed a licensing regime regulating entry into duck shooting areas.

Mr Levy had attempted to enter such an area to make a televised protest there against laws which permitted the shooting of game birds and against the illegal shooting of protected species. He, having no licence to enter the area, was physically prevented from entering it when he attempted to do so. Following this, he took out proceedings challenging the validity of the regulations. It was argued on his behalf that by preventing him from entering the area in question to make his protest there, the regulations prevented conduct protected by the implied freedom of communication flowing from the Constitution of the Commonwealth. The High Court of Australia rejected that argument and upheld the validity of the regulations. Chief Justice Brennan said (at p.595) that:

The American flag desecration cases

On the strength of the prohibition in the First Amendment to the Constitution of the United States of America against the making of laws abridging the freedom of speech, the United States Supreme Court has struck down both state and federal statutes criminalizing desecration of the American flag and rendering such desecration punishable by a fine or imprisonment. Neither the decision in the state statute case of Texas v. Johnson 491 US 397 (1988) nor the decision in the federal statute case of United States v. Eichman 496 US 310 (1989) was unanimous. Each was by a bare majority of five to four. Moreover Kennedy J, when concurring in the state statute case, made it a point to say this (at pp 420-421):

Other overseas nations

Turning to other overseas nations, it is to be observed that some of them criminalize flag desecration while some of them do not. And it is further to be observed that those of them which do have statute laws criminalizing desecration of the national flag and rendering such desecration punishable by a fine or imprisonment include a number of signatories to the ICCPR, article 19(2) of which provides that everyone shall have the right to freedom of expression.

As a further illustration of the diversity to be found around the world in these matters, I would refer to the relevant position in another of the nations about which we have been supplied information. Norway has no law criminalizing the desecration of its own flag. But it has a law punishing (by a fine or up to one year's imprisonment) public insult in Norway to the flag or national coat of arms of a foreign nation. I might just mention that Japan is like Norway in that Japan, too, protects foreign flags and emblems within its jurisdiction without similarly protecting its own flag or emblems.

Finally in this connection, I would observe that there appears to exist considerable differences between the actual terms of the flag and emblem protection laws of the various nations which have such laws. I will illustrate this by one comparison. We have been shown a letter dated 25 June 1999 which the Procurator-General of Portugal was so helpful as to write to the Department of Justice here. The letter cites article 332(1) of the Portuguese Penal Code, giving this English translation of it: "Anyone who by words, gesture, in writing or by any other means of public communication, desecrates the Republic, national flag or the national anthem the symbols or emblems of the Portuguese sovereignty, or in any other way fails to pay them their due respect, shall be punished with a prison sentence of up to 2 years or with a pecuniary penalty of up to 240 days."

It is of course no part of my function to engage in anything which even remotely resembles pronouncing upon the laws of other nations. But purely for the purposes of respectful comparison, I would merely observe that, on its face, that provision of the Portuguese Penal Code appears to criminalize a considerable number of things which our own flag and emblem protection laws do not criminalize.

Two coherent approaches

There are, as it seems to me, essentially two coherent approaches in this area of constitutional law. One approach would be to say that even though there are always far more effective ways of making a point than by desecrating the national or regional flag or emblem, such desecration, however boorish and offensive, should nevertheless be tolerated as a form of expression. The other approach would be to say that by reason of the reverence due to them for what they represent and because so protecting them would never prevent anyone from getting his or her point across in any one or more of a wide variety of ways, those flags and emblems should be protected from desecration.

The test: reconcilability

When a matter of the present kind comes before the courts, the question is not which approach the judges personally prefer. It is whether the approach chosen by the legislature is one permitted by the constitution. This does not involve deference to the legislature. It is simply a matter of maintaining the separation of powers.

The legislature having chosen the approach which protects the national and regional flags and emblems from desecration - having so chosen by enacting laws which provide such protection - the question in the present case is whether those laws are constitutional. And the answer, as I see it, depends on whether such laws are reconcilable with the freedom of expression guaranteed by the constitution. The test is one of reconcilability.

Conclusion

I wholeheartedly share the determination of the learned judges of the Court of Appeal to uphold the freedom of expression. But I would allow this appeal because I feel unable to say that the laws under challenge are irreconcilable with that freedom. Two things may overlap at the edges but by their nature remain at core essentially different. Thus a symbol such as a flag, emblem or totem impartially representing the whole of a group, be it a small band or a large nation, is inherently and essentially different, both in substance and form, from a statement conveying a specific message whether bland or controversial. It is natural for a society to wish to protect its symbols. And given the difference between symbols and statements to which difference I have referred, I am of the view that it is possible - even if by no means easy - for a society to protect its flags and emblems while at the same time maintaining its freedom of expression.

This is possible if its flag and emblem protection laws are specific, do not affect the substance of expression, and touch upon the mode of expression only to the extent of keeping flags and emblems impartially beyond politics and strife. In my view, our laws protecting the national and regional flags and emblems from public and willful desecration meet such criteria. They place no restriction at all on what people may express. Even in regard to how people may express themselves, the only restriction placed is against the desecration of objects which hardly anyone would dream of desecrating even if there was no law against it. No idea would be suppressed by the restriction. Neither political outspokenness nor any other form of outspokenness would be inhibited.

In the course of her powerful address, counsel for the 2^nd respondent posed a rhetorical question. If these restrictions are permissible, where does it stop? It is a perfectly legitimate question. And the answer, as I see it, is that it stops where these restrictions are located. For they lie just within the outer limits of constitutionality. Beneath the national and regional flags and emblems, all persons in Hong Kong are - and can be confident that they will remain - equally free under our law to express their views on all matters whether political or non-political: saying what they like, how they like.

Sir Anthony Mason NPJ:

I agree with the judgment of the Chief Justice.

Chief Justice Li: