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In the case of MTR Corporation Ltd v Chow Nok Hang [2018] HKCU 1579, the Court of First Instance clarified issues related to the constitutional rights of freedom of speech, assembly and demonstration in Hong Kong within the paid areas of MTR Stations. In this case, the MTR official requested the defendant and 14 others to stop broadcasting via loudspeakers, stop demonstrating and collecting signatures within the paid area of the railway premises and leave the railway premises. The defendant was served with a Notice of Intended Prosecution for Breach of Mass Transit Railway By-laws/Mass Transit Railway (North-West Railway) Bylaw for refusing to do so.

One of the issues before the court was whether the paid area of the station was a public place in determining whether the rights to freedom of speech, freedom of assembly and freedom of demonstration were relevant. The court held that the MTR Station is a privately-owned venue performing a public function.

The question was whether the paid area of an MTR Station renders this case to be an exceptional one so that a refusal to comply with the instructions of the officer was constitutionally invalid.  The MTR Corporation is required under s.9(1) of the Mass Transit Railway Ordinance to maintain a proper and efficient service at all times. There is a distinction drawn between paid areas of stations and unpaid areas of stations. The purpose of unpaid areas of station resemble a shopping mall or a public walkway to which the general public is permitted access during the opening hours of a station. Once a person has swiped their Octopus card and entered the paid areas of stations, their only purpose is to commute and to reach their destinations. Therefore, a protest, using loudspeakers to broadcast the message of protest inside the paid areas would have a disruptive effect to commuters as they will have to make unnecessary alterations to their routes or stop and listen to the protests. For an MTR official’s direction to be reasonable, the direction should be fair and reasonable having regard to maintaining a proper and efficient service at all times by the Corporation inside the paid area of the MTR Station. The court ruled that the prohibition of demonstrations and the use of loudspeakers for such purpose inside the paid area is for the legitimate aim of maintaining a proper and efficient service inside the paid area of the MTR Station.

For more information on Constitutional and Human Rights Law:

Special Edition of Halsbury’s Laws of Hong Kong on Constitutional and Human Rights Law

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