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Following is the speech (English only) by the Senior Assistant Director of Public Prosecutions, Mr Andrew Bruce*, SC at the "Constitutional Law Conference on Implementation of the Basic Law: A Comparative Perspective" co-organised by the Department of Justice and the Faculty of Law, University of Hong Kong today (April 28):

It is in the nature of life as an advocate that this is the first time I have actually sat down and reflected on the sequence of litigation and court decisions which is collectively known in Hong Kong as the Flag Case.1 I appeared for the prosecution at every stage of the proceedings.2 That my perspective on this case is unique cannot be doubted. I am less convinced that it is the best perspective. Allowing for those limitations, I propose to look at the case in two different ways: first as a piece of constitutional litigation and second on the constitutional and human rights implications of the case.

These two perspectives sound different. As you will soon see, they are closely intertwined. One thing these perspectives have in common is that they are my perspectives.

My initial reaction to the title of this session Homegrown Constitutional Jurisprudence caused me a degree of discomfort. Was there a hint of post-colonial cringe in that title, perhaps implying that the imported stuff was better? If there is, the cringe is misplaced. One of the conclusions that I will seek to draw in this paper, using the flag case as an example, is that there is not a lot wrong with the homegrown product and, in deed, there is a good deal that is right.

We in Hong Kong have had entrenched human rights for just under 10 years now. In that period, a wide variety of legislation and acts of the executive have been placed under scrutiny by an independent judiciary. Some legislation and some executive acts have survived that scrutiny. Some have not. What has happened is that over that time we have built up a pretty robust human rights jurisprudence.

It is interesting to trace the content of that jurisprudence. Many of the decisions in the early days borrow heavily from overseas jurisprudence - especially that from places which have their own brand of entrenched human rights. However, even in those early Hong Kong cases it is recognised that the terms of the imported product may have been apt for the place in which it was written but may not be apt for Hong Kong. Over time, as the number of Hong Kong decisions grew, adapted and apt for our time and place, the reference to the imported product appears to have changed in nature. You see the principles there but most critically you also see the principles applied in a manner which recognises that while the principles are essentially universal, the resolution of cases on specific facts and circumstances does not necessarily require only one outcome.

That is not to say that results of Hong Kong cases are significantly different to decisions on similar issues in other places. Indeed, what has struck me is the remarkable similarity. My own theory is that this is because we share the same core commitment to human rights as those other places and only the detail varies.

That is not to say that we no longer need the imported product. It will always provide an intriguing combination of reality check and source of inspiration for many years to come. However, we will view it with a growing self-confidence, considering it with a critical eye and in the knowledge that no place and no-one has a monopoly of wisdom in the human rights field.

Perhaps the Flag Case demonstrates the points I have just made better than most.

The litigation of human rights cases

It is very easy for people to either overlook or forget that human rights cases are not like some moot problem or exam question set in a Bachelor of Laws course. These so-called 'human rights' cases have real facts and real evidence and involve real people. In the context of criminal proceedings, one category of the real people involved are the accused who face a real conviction with a real sanction and real consequences at the end of the case. After the trial of such a case there may be appeals. Those have to proceed according the to rules of procedure.

Some of what happened in the Flag Case must be understood against that background.

One of the important consequences of human rights cases against this background is that our laws of procedure often impose real limits on what can be litigated and what can be decided. The Flag Case is, in some respects, an example of this. Did it define the whole scope of the right to freedom of expression? No. Did it even decide the full scope of ordre public as a justification for restrictions on freedom of expression? No. (That said, let there be no doubt, in answer to the question "will the decision profoundly affect those two issues beyond the narrow boundaries the case at bar?" the answer is, of course, a resounding "yes".)

Ideally, when you get the brief to prosecute a case which has an obvious human rights content you should approach it in exactly the same way as you would approach the prosecution of a charge of shop-lifting or an indictment for murder. In theory, the human rights component of a case is simply part of the law that has to be applied to the facts to produce an outcome. In reality that is simply not the case. The Flag Case was certainly never going to be a simple criminal case, not least because from the outset it was pretty obvious that what the two accused were proved to have done would provoke a prosecution which would result in a challenge the constitutional validity of the National Flag and Emblem Ordinance and the Regional Flag and Emblem Ordinance.3

So what facts did we have to deal with?

On 1 January 1998, a demonstration was organised by the Hong Kong Alliance in Support of the Patriotic Democratic Movement in China. The demonstration consisted of a public meeting and a public procession from Victoria Park to the Central Government Offices of the Hong Kong Government at Lower Albert Road. The public meeting and the public procession were both lawful and orderly.

During the public procession, the Respondents were seen carrying in their hands and waving in the air along the route what appeared to be a defaced national flag and a defaced regional flag. At the end of the procession, they tied those two objects to the railings of the Central Government Offices. The Police seized the two objects.

Both flags had been extensively defaced. As to the national flag, a circular portion of the centre had been cut out. Black ink had been daubed over the large yellow five-pointed star and the star itself had been punctured. Similar damage appeared on the reverse side. Further, the Chinese character "shame" had been written in black ink on the four small stars and on the reverse side, a black cross had been daubed on the lowest of the four small stars.

The essence of the relevant provision of the National Flag and Emblem Ordinance provides:4

A person who desecrates the national flag .... by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence.

The terms of the offence in relation to the regional flag are the same.5

Preparation for constitutional proceedings - some fundamentals

Even at the stage of advice on the police file, interesting issues arose. First, these provisions were only enacted in 1997 and this was the first case involving these provisions. Second, the penal provisions were based on Chinese legislation. Third, and perhaps most intriguingly, the terms of the Chinese legislation appeared to bear a remarkable similarity to US flag desecration legislation.

As with all criminal cases, it was necessary to identify:

* the conduct which might make up the offence; and

* the state of mind, if any, that the prosecution had to prove.

The critical issue in the present case was that the prosecution could not prove that an act of physical desecration of the flags took place in public. There could be no doubt that at some stage there had been acts of physical desecration. Thus the meaning of 'publicly desecrates' was critical. Was it limited to physical acts of desecration or was there something more to the concept of desecration? There is a traditional tendency to interpret criminal statutes in the narrowest possible way.6 The narrowest possible construction on this aspect of the penal provisions of the Flag Ordinances would render liable only those who could be proved to have perpetrated an act of physical desecration in public. If that was right then there was, arguably, no case. However, the view was formed that, given the purpose of the statute, it was absurd to limit 'desecration' to acts of physical desecration. An examination of the Chinese text strongly reinforced the view that the notion of desecration extended to non-physical acts of desecration in public. Thus the conduct we could prove in this case fell within the penal provisions.

The problem with this is that the wider the scope of the criminal offence the greater the difficulty in justifying the restriction it imposes on the freedom of expression.

The fact that there was, at least in theory, a narrow construction of the legislation, rather demonstrates an important point about constitutional litigation which must never be forgotten: tactical and strategic decisions taken (or not taken) early on in the proceedings can have real significance later on. One of the basic disciplines of a criminal lawyer is to look at a statute to see if it covers the conduct alleged against the accused. It has always amazed me that the narrower construction of the statute was never advanced by the defence either at trial or on appeal to the Court of Appeal. The point was taken for the very first time in the substantive hearing of the appeal to the Court of Final Appeal. The timing gave the prosecution the immense tactical advantage of being able to characterise the argument as the last gasp of the desperate.7 Such a course always runs the risk of detracting from (or distracting from) your other main arguments not least because here is this little criminal law point punctuating debates of high constitutional purpose.

Proceedings before the magistrate

The proceedings before the magistrate were done by way of agreed facts. I decided to tender the video tapes which had been taken of the demonstration. There was good and bad for the prosecution in those tapes. The bad was that the conduct of the accused in waving these desecrated flags caused absolutely no violence or any reaction which amounted to a breach of the peace. The good part of the videos for the prosecution was that there were a number of people with placards expressing strong political opinions and they were freely and peacefully doing so. We used this at all levels of the proceedings to bolster the argument that no one was trying the restrict the content of expression but simply the mode. This helped our argument that it was a very narrow restriction.

Although (with appropriate modesty) I rate my skills as a cross-examiner pretty highly, there was no person in the magistrates court more relieved than I when the defence announced the accused would not testify. I had NO idea how I was going to cross-examine and I was anxious to keep this as a criminal trial rather than a political platform. I have to confess that of all the moments of anxiety in the case, this for me was the worst.

The argument before the magistrate focussed on the public order justification with less emphasis on ordre public. One of the arguments I used in addition to this was that in striking the balance between the right to freedom of expression and the need for public order one had to look at Hong Kong's values and Hong Kong's history. This plainly resonated with the learned magistrate in his decision. An example of this was his reference to the poem, later turned into a song (¦å¬Vªº­·ªö)The Glamour of the Blood which is, of course, a deeply emotional song about the importance of the Chinese flag. The magistrate made the point that the fact that it is sung with equal fervor by all sides in China and, given the content of the poem, underlined the importance of the flag. The accused were duly convicted.

The Court of Appeal

The Government lost in the Court of Appeal. I ran the ordre public argument a little harder before the Court of Appeal although a major focus remained on a justification based on public order. The ordre public argument relied heavily on the dissenting judgments in the decision of the US Supreme Court in Texas v Johnson.8 The passion in both minority and majority judgments in that case is very powerful. I thought that the approach of the minority would resonate with the Court of Appeal as much as if not more than the magistrate. I could not have been more wrong. The Court of Appeal held that the Government had not justified the restriction on freedom of expression. To the extent that Texas v Johnson resonated at all, it was in relation to the judgment of the majority. The reasoning of the Court of Appeal really came to this: if this sort of law was not necessary in colonial times, why it is necessary now? A good deal of our case - especially before the Court of Final Appeal - was that this view rather missed the point.

The good side of losing

Although this might sound perverse, in many ways, at least from an advocate's point of view, the decision of the Court of Appeal was the best thing that could have happened to the Government's case. It forced a ground-up re-evaluation of our case and, in particular, the method of presenting it. New counsel was briefed above and below me.9 We looked at flag desecration laws in other countries.10 We put together a Brandeis Brief.

The constitutional argument aside, at least for me the most interesting part of the case was the preparation of the bundle of materials which we perhaps presumptuously called the Brandeis Brief. This 'Brief' was a reflection of the principal focus of our strategy before the Court of Final Appeal. This strategy was much more values driven: "what is necessary and what meets the balance is very much a matter of the values of our community." The focus was also very much more on ordre public which is itself very values driven.

The Brandeis Brief - the theory

The ascertainment of facts necessary to determine the constitutionality of legislation is treated by the courts as something very different from facts which are necessary to determine liability as between the parties to proceedings. Although the jurisprudence is not settled, such an inquiry appears to differ from the ordinary rules of evidence both in terms of the rationale for admission and the mode of receiving such evidence. In some of the jurisprudence, material thus received is treated as a species of judicial notice. However, it appears that some material received and considered is almost certainly outside the traditional scope of judicial notice and rests on the basis that courts, or at least ultimate appellate courts were engaged in the process of constitutional interpretation. The material which might be received under this heading is probably wider than what are sometimes rather grandly termed the traveaux preparatoires and is certainly wider than the material permitted in the construction of an Ordinance under the Pepper v Hart principles.11 Material submitted in this manner has sometimes been labeled a 'Brandeis Brief'.12

The need for facts to be established in cases in which legislation was challenged on constitutional grounds was recognised in Hong Kong in R v Sin Yau-ming where Silke V-P, addressed the issue as follows:13

The onus is on the Crown to justify. It is to be discharged on the preponderance of probability. The evidence of the Crown needs to be cogent and persuasive. The interests of the individual must be balanced against the interests of society generally but, in the light of the contents of the Covenant and its aim and objects, with a bias towards the interests of the individual. Further the aims of the legislature to secure the residents of Hong Kong free from the depredations of this trade must be respected.

The facts in issue in R v Sin Yau-ming were concerned with the daily drug intake of drug addicts which was directed to whether certain impugned legislation was a justified derogation to a right guaranteed under Article 11 of the Bill of Rights. Significantly, evidence was actually called in that case. A perhaps less technical view of what needs to be established was taken in A-G v Lee Kwong-kut [1993] AC 951, 974-975. There the issue was less controversial in the sense that Lord Woolf held that it was not necessary for the prosecution to establish the necessity for drugs confiscation legislation.

The need for reference to material which, for example forms the background to the enactment of legislation subject to constitutional challenge has been recognised a number of Commonwealth decisions. In Pillai v Mudanayke & Ors,14 the Privy Council endorsed as 'the correct view' the need for reference to reports such as those from parliamentary commissioners and 'of such other facts as must be assumed to have been within the contemplation of the legislature when [the legislation the subject of the constitutional challenge] were passed.' The Supreme Court of Canada has also admitted evidence outside the scope of that required to determine the issues between litigants in constitutional cases under the Canadian Constitution and the British North America Act, 1867. In litigation under the British North America Act, 1867, there were a series of challenges to the constitutionality of legislation which was sought be justified upon the basis that it was for the peace, order and good government of Canada. In Reference Re Anti-Inflation Act 15 the Supreme Court of Canada admitted and considered material comprising policy speeches, statistical data, the opinion of a professor of economics and a reply by the Governor of the Bank of Canada. The materials were received and considered not as to the construction of the impugned statute but rather as to what Laskin CJC termed the Act's "constitutional characterisation, what was it directed to and was it founded on considerations which would support its validity under the legislative power to which it was attributed."16 Laskin CJC was careful to avoid stating a rule for admissibility in specific or hard and fast terms, preferring to simply say that it should be admitted "in appropriate cases".17 In Reference Re Residential Tenancies Act,18 the impugned legislation was Provincial legislation and affected in a fundamental way the relation between landlord and tenant. Both before the court below and the Supreme Court, Law Reform Commission Reports and a Ministerial Green Paper on policy options in the subject area were considered. Dickson J for the Court held that they were admissible for the purpose of determining the constitutionality of legislation because that "process joins logic with social fact and the authority of precedents".19 His Honour observed:

A constitutional reference is not a barren exercise in statutory interpretation. What is involved is an attempt to determine and give effect to the broad objectives and purpose of the Constitution, viewed as a 'living tree'. Material relevant to the issues before the Court and not inherently unreliable or offending against public policy should be admissible, subject to the proviso that such extrinsic materials are not available for the purpose of aiding in statutory construction.

It is to be noted that the Supreme Court in both Reference Re Anti-Inflation Act, and Reference Re Residential Tenancies Act held that the process of receiving such evidence should be court-controlled.20

The High Court of Australia has also recognised that facts needed to determine the constitutionality of legislation have a very special place and require special treatment. Facts which are required for the judicial determination of the validity of legislation are not matters which depend on the parties which institute the litigation which gives rise to the issue. The proof or establishment of such facts and their treatment once proved or established is to be distinguished from those facts which establish a right or liability as between parties.21 In Gerhardy v Brown Brennan CJ summarised the position in Australia as follows:

There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants.22

The foregoing decisions probably establish the following:

(1) Facts and information for the purpose of determining whether a law is consistent with the Basic Law may be received and considered by at least the Court of Final Appeal when it is charged with the task of determining such an issue. Examples of the kind of material that might be received includes historical material on the formation of the constitutional instrument, the legislative history of the local Ordinance and the like. The principle may also extend to courts other than the Court of Final Appeal when undertaking such a task.

(2) Such facts and information are to be distinguished from that required to establish or refute liability in a cause of action or criminal matter.

(3) The establishment of such facts and information does not necessarily depend on the parties although the court may look to the parties for assistance and require them to provide such assistance. In this regard the Court may give directions about the establishment of such facts.

(4) The establishment of such facts and information need not be upon the basis of the ordinary modes of proof in judicial proceedings and need be established to a standard which the Court finds convincing.

(5) A party to the proceedings must be given a reasonable opportunity to present contrary or different facts and information.

(6) The reception and means of proof of such facts is a matter very much subject to the control of the Court.

Plainly the Brandeis Brief is not going to be appropriate or necessary or of assistance in every constitutional or human rights case. In some ways, what we did was a first for Hong Kong.23 There are no rules or precedents.

The issues we had to face in the preparation of this 'Brandeis' brief were really twofold:

* selection of material; and

* presentation of material

The difficulty in selecting material in the Flag Case was heightened by the fact that the idea for the brief came from the Court during the leave stage and thus at all stages a dominant concern in the selection and presentation of the material was the issue of whether we had addressed the Court's wishes because as Brennan CJ makes plain in the passage cited above this is a matter that goes beyond the interests of the litigants in a particular case. With the benefit of hindsight, I think we could have prepared a better brief. The material we submitted was bulky. Some of it linked in really well with our written case and oral submissions. Some didn't connect as well as it should have. The 'Brief' could have been briefer. Maybe in a perfect world we could have rendered the material into a more digestible form. The trouble with material like this there is never enough and there is always a risk that there is too much. What was satisfying was just how much of the material the Court adverted to.

I think for the future there would be profit in this being a very much more court controlled matter. My guess is that in the Flag Case the Court was content to let the parties assist as they thought best.

The Constitutional and Human Rights implications of the Flag Case

The second perspective I wish to consider is the constitutional and human rights perspective. I strongly believe that this sequence of litigation demonstrates that human rights and, in particular freedom of expression, are very much alive in Hong Kong.

The first thing to consider is the process. At each stage, from magistrate to Justice of Appeal to Chief Justice, the rulings were clear, principled statements of the issues, the law and the conclusion which each level of court thought appropriate. With one exception, the submissions on both sides to each level of court were clear, principled and both broad and deep in terms of coverage and content. In particular, the oral submissions before the Court of Final Appeal rank as some of the best appellate advocacy I have ever seen (that includes, as a piece of advocacy, submissions from the unrepresented Ng Kung-siu).24 From my perspective as advocate, taken as a whole, I cannot imagine how a court could have received more assistance from the parties to the proceedings. The Court as it left the court room having announced it would reserve its decision could not have left that court room not understanding in detail and with precision, the position of the parties.

Of course it is one thing to have good submissions. Submissions are just a means of assisting a court in the process of resolving an issue that it faces. Both judgments delivered by the Court of Final Appeal concentrate on one main issue: had the Government justified the limit imposed on freedom of expression by the Flag Ordinances? The only other issue dealt with was the criminal law point to which I have earlier referred, i.e. the meaning of 'publicly desecrates'.

In the assessment of the decision I am, to say the least, a little diffident about expressing my views. This is simply because there is a danger in any professional advocate being too bound up with the cause he has pleaded.

Starting with the small matters, the somewhat curt dismissal of the criminal law point rather belied the difficulty of the point. In a perfect world, I would have wished to see some principled discussion of the point.

Next point, in terms of size, concerns the "Brandeis Brief". The Court referred to the material in the brief without any reference to the legal issues involved. Is this really a species of judicial notice or is there something greater at stake? Perhaps the reason why there was no discussion is that the Respondents did not oppose the consideration of the material in the brief. The reason I respectfully criticise the Court in this regard is that it does nothing to identify the ground rules (if any) for future uses of such material. However, being fair, it is hard to criticise our ultimate appellate court for not making any detailed comment on the principles governing the reception of such material since the US Supreme Court did not do so in its first recorded use of the Brandeis Brief.25

The decision on the constitutionality of the Flag Ordinances was, in the end, a values-driven decision. The reasoning of Li CJ26 can best be seen the following passages at almost the end of the judgment:27

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.

These words come after a careful recitation of the constitutional principles and a pioneering discussion - at least for an ultimate appellate court in the common law world28 - of ordre public. It is interesting that although the Appellant's submissions were cast in terms of this being a value-driven issue, the only use of "value" or "values" in the decision of the majority is right at the end of a passage quoted by Li CJ earlier in his judgment.29

I suspect that the range of other countries which in some way criminalised flag desecration made the decision easier because it could then be said that there is a range of acceptable outcomes and it is for each jurisdiction to settle its own laws in this regard. In the end I think that this is a value-driven decision. Essentially the Court is saying that Hong Kong's values are such that this very limited restriction on freedom of expression is justified.

There is nothing wrong with the Court not saying the decision is value-driven. If the Court had denied that this was the position then other considerations might follow. The realities of human rights litigation is that where there are two or more possible conclusions which are at least respectable, then values will almost inevitably resolve the matter.

This is so even where a protected right has only an implied scope for justification such as the presumption of innocence.30 There, the touchstones of justification are whether the impugned legislation is rational and proportionate. (It is a bit more complicated than that. This is the short-hand version.) Even if rationality has some test based in some form of immutable logic (I, for one, strenuously doubt that) proportionality has to be values-based.

What is also interesting is the reference to ordre public as a justification not being fixed. Li CJ noted that "the concept must remain a function of time, place and circumstances."31 While this does not carry with it an invitation to make a weekly challenge to the constitutionality of the Flag Ordinances, it may suggest that what was justified in 1999 may not be at some other time. It also carries with it the implication that what we in Hong Kong consider to be our ordre public and thus worth protecting at the price of some diminution of freedom of expression may not be what other places consider worth protecting.

My own view is that ordre public will always remain a very difficult and challenging justification to run.

There can be little doubt that the decision in the Flag Case will have far-reaching effect far beyond the narrow ratio that the Flag Ordinances are constitutionally valid. My guess is that as a method of approach it will stand as a guidepost for a long time. In the specific area of freedom of expression it sets in post-colonial stone the high value we as a community place on freedom of expression. In this case, the Court did not distinguish between kinds of speech. The Canadian authorities make this distinction, putting matters such as political, artistic and scientific expression on a much higher plane and deserving of a much higher level of protection than, say, for example commercial speech (e.g. advertising in relation to products which are dangerous). On any view, what was at issue in the Flag Case was political speech and it will only be in the context of attempts to restrict commercial speech that the Court might be asked to assign different values to different forms of speech.

There will doubtless be those with different values who will disagree with the conclusion of the Flag Case. That is their privilege. I doubt whether there will be many who would disagree with the mode of reasoning. The reaction to the decision so far is perhaps best exemplified by an article by Margaret Ng.32 Her article recognised that there was, in reality, a choice between two respectable alternatives faced by the Court. She clearly favoured the choice not taken by the Court and her criticism of the decision is based on that position.

What I have tried to do in this paper is give us a quick tour of one example of recent homegrown jurisprudence known as the Flag Case. This particular homegrown product clearly connects with jurisprudence and scholarship in Hong Kong and elsewhere. It is a principled review of the position against the background of the facts and issues as they were litigated. For my money, this compares well with the imported product and has the advantage of being adapted to our own circumstances by reference to functions of time, place and circumstances. Maybe this is too bold but I end with a fundamental truth about Hong Kong. Over time we export more than we import.

* Andrew Bruce, SC graduated in Arts (1974) and Law (1977) from the Australian National University. He is admitted to practise law before the Supreme Court of South Australia, High Court of Australia and the High Court of Hong Kong. He presently holds the title of Senior Assistant Director of Public Prosecutions in the Prosecutions Division of the Department of Justice, having joined the Hong Kong Government's legal service in 1982. He is the author of Criminal Procedure: Trial on Indictment and the volume on Criminal Law and Procedure in Halsbury's Laws of Hong Kong and is, with Gerard McCoy QC, the author of Bruce & McCoy's Criminal Evidence in Hong Kong. He was appointed Senior Counsel for Hong Kong in 1996. This paper should in no way be taken as necessarily representing the views of the Government of the Hong Kong Special Administrative Region.

1 The decisions are reported as Ng Kung-siu & Anor v HKSAR [1999] 1 HKLRD 783,

2 HKC 10 (Court of Appeal) and HKSAR v Ng Kung-siu & Anor [1999] 3 HKLRD 907, [2000] 1 HKC 117 (Court of Final Appeal). [1999] 2 HKC 10 also reports the decision of the magistrate.

2 As leading counsel in all but the hearing before the application for leave to appeal before the Appeal Committee of the Court of Final Appeal and the substantive hearing before the Court of Final Appeal.

3 For brevity I will refer to them collectively as the Flag Ordinances.

4 section 7 of the National Flag and National Emblem Ordinance (No. 116 of 1997)

5 section 7 of the Regional Flag and Regional Emblem Ordinance (No. 117 of 1997)

6 Such a tendency is more the stuff of legend (or, at its kindest, legal history) than the actual law. Modern law mandates a purposive construction: section 19, Interpretation and General Clauses Ordinance, Cap 1.

7 It is not the first time this has been done. In Ming Pao Newspapers Ltd & Others v A-G of Hong Kong [1996] AC 906 which is one of leading cases in the Commonwealth on freedom of expression, the true ratio of the decision of the Privy Council is that on the conduct proved by the prosecution did not amount on offence. This fundamental point was never taken by the Appellant at any stage. It was first raised by one of the members of the Privy Council hearing the appeal. One of my abiding memories of this case (I was junior counsel for the Respondent) is the anxiety which counsel for the Appellant had in embracing this point because, if valid it would end his client's criminal liability BUT it might have the effect of preventing the matter being resolved as a freedom of expression case. (In the result the matter was resolved on the criminal law point but the Privy Council went on the rule on the freedom of the press issue. The interesting irony of that is that the accused was held not to be criminally liable for its conduct and the Privy Council resolved the freedom of expression point in favour of the Attorney General.)

8 (1989) 491 US 397.

9 Gerard McCoy, QC to lead and Kenneth Chow (also from the private bar) as junior counsel.

10 I had not challenged the assertion by the accused in the Court of Appeal that there were no such laws. I did this because I did not think it mattered because what really mattered was OUR response to our situation, constitutional historical and otherwise. With the perfect vision that hindsight provides this demonstrates the need for those involved in preparing constitutional litigation to look widely. Had I realised the range and nature of the laws on flag desecration in other countries, perhaps I would have seen the persuasive potential of such material.

11 Pepper (Inspector of Taxes) v Hart [1993] AC 593.

12 This term probably derives from the use by such material by Louis Brandeis in support of his submissions in Muller v State of Oregon (1908) 208 US 412. For another example of the use of the 'Brandeis Brief' in the context of litigation before the US Supreme Court, see Kahn v Shevin (1974) 416 US 351.

13 [1992] 1 HKCLR 127, 145,

14 [1953] AC 514, 528.

15 (1976) 68 DLR (3d) 452.

16 (1976) 68 DLR (3d) 452, 467.

17 (1976) 68 DLR (3d) 452, 468.

18 (1981) 123 DLR (3d) 554.

19 (1981) 123 DLR (3d) 554, 561.

20 Re Anti-Inflation Act (1976) 68 DLR (3d) 452, 468; Reference Re Residential Tenancies Act (1981) 123 DLR (3d) 554, 562. See also: Morgentaler et al v R (1988) 44 DLR (4th) 385.

21 Breen v Sneddon (1961) 106 CLR 406, 411; followed in Gerhardy v Brown (1984-85) 159 CLR 70, 141-142. See also South Australia v Tanner (1988-89) 166 CLR 161, 179.

22 See also: Levy v Victoria (1997) 189 CLR 579, 146 ALR 248.

23 There have been attempts to tender materials to the courts of Hong Kong before. However, I am not aware of any case in which it has hitherto been done on the scale attempted in the Flag Case.

24 I did not have a speaking role.

25 Muller v State of Oregon (1908) 208 US 412.

26 With whom Litton & Ching PJJ and Mason NPJ agreed.

27 [1999] 3 HKLRD 907, 926.

28 The other one is our own Court of First Instance in Secretary for Justice v Oriental Press Group Ltd [1998] 2 HKLRD 123, [1999] 2 HKC 24.

29 [1999] 3 HKLRD 907, 924.

30 See R v Sin Yau-ming [1992] 1 HKCLR 127.

31 [1999] 3 HKLRD 907, 925.

32 Margaret Ng Dangers of Saluting the Flag South China Morning Post 24 December 1999. Ms Ng is a practising barrister, journalist and member of the Hong Kong Legislative Council. She has a keen interest in and has written extensively on human rights issues.

End/Friday, April 28, 2000

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