The defendants had participated, in Hong Kong, in a pro-democracy in China demonstration. They carried a defaced PRC flag, as well as a defaced Hong Kong SAR flag. The demonstrators were subsequently charged with violating section 7 of the National Flag and National Emblem Ordinance and section 7 of the Regional Flag and Regional Emblem Ordinance. Found guilty, the defendants appealed to the Court of Appeal and won. The government then appealed to the Court of Final Appeals, the highest court in Hong Kong. The Court of Final Appeal ruled in favor of the government. In so doing, the Court applied and interpreted the human rights norms in the ICCPR governing freedom of expression. Protection of national (PRC) and regional (HKSAR) flags was found to be provided for by the ICCPR under its “public order” provisions, found in Article 19. Thus, the two ordinances by which the defendants had been convicted were constitutional. The CFA held that national and regional flags are important symbols of the PRC and the HKSAR, respectively, and as such societal and community interests were involved that had to be taken into consideration. Although the Court considered such limits on flag desecration as limits on the constitutionally-protected right of free speech, these limits were narrow, and the defendants could have expressed themselves in other ways. Thus, the “necessity” and “proportionality” tests of international human rights norms had been satisfied.

Although the CFA upheld the flag desecration laws, they did so in consideration of international human rights norms, here, the ICCPR, which had been incorporated into the Bill of Rights. Thus, any violation of the ICCPR, an international human rights norm, violated the Bill of Rights, which was domestic law in Hong Kong. In so doing, the CFA showed that the courts in Hong Kong were bound by such international norms. Thus, the courts had the power to review legislation and determine whether it was constitutional on the basis of certain human rights standards. This holds true for executive actions as well.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 9-12)

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