[1] On separate grounds it also declared all the substantive sections of the PFCR excepting that prohibiting the use of masks at an unlawful assembly inconsistent with the Basic Law and the Bill of Rights, and therefore of no effect.

[10] The court declined to rule on the question of the constitutionality of the making of regulations by the Chief Executive in Council on an occasion of an emergency, and solely considered that concerning public danger.

First, the powers granted by the ERO seemed not so much to "leav[e] another body to devise the detailed legal norms that elaborate or put flesh on the broad matters laid down in the primary legislation" so much as to allow general legislation—thus this very regulation was the first enactment to concern face covering in Hong Kong.

[17] Fifth, the ERO permits the Chief Executive to prescribe punishments up to life imprisonment, inter alia, which exceed those envisaged by the Interpretation and General Clauses Ordinance (Cap.

[22] Ultimately the court concluded that the ERO in allowing for the making of regulations by the Chief Executive at a time of "public danger" did so sufficiently broadly that it "seems...to create in Hong Kong a separate source of laws that are primary legislation in all but name".

[23] The government further submitted that the ERO had been vetted for constitutionality before the handover as a "factor in favour of validity"; however, the court held that article 160 of the Basic Law provided for the subsequent discovery of unconstitutionality.

[35] It was common ground between the applicant and respondent that a four-step proportionality analysis should be used to determine the validity of section 3, by which the use of face coverings in certain circumstances was prohibited.

[40] However, the court held that, excepting unlawful assemblies, the restrictions would unduly affect entirely peaceful gatherings,[29] and that in view of, inter alia, the lack of clarity concerning those merely "at" but not participating in a gathering, the "absence of....case-by-case evaluation or assessment", "the lack of robust evidence on the effectiveness of the measure", and "the importance....[of] freedom of expression,...assembly,...procession,...and demonstration", the measure was not proportionate.

"[42] A similar four-step proportionality analysis was made of section 5, which allows police officers to demand the removal of a facial covering.

[44] However, because section 5 would apply extremely broadly, "irrespective of whether there is any public meeting or procession taking place in the vicinity", and regardless of the risk of violence, section 5 could "be used by a police officer for the random stoppage of anyone found wearing a facial covering in any public place", which "exceeds what is reasonably necessary to achieve the aim of law enforcement" etc.,[45] and so is disproportionate.

[54] The court was of the view that the continued enforcement of the PFCR would likely cause more conflict, and therefore declined to make such a suspension order on the grounds the government sought.

[56] On separate grounds it also declared all the substantive sections of the PFCR excepting that prohibiting the use of masks at an unlawful assembly inconsistent with the Basic Law and the Bill of Rights, and therefore of no effect.

The court accepted the initial reasoning of the CFI concerning the criteria by which the constitutionality of the ERO on an occasion of public danger should be determined.

[62] Since "emergency or public danger is not capable of exhaustive definition", legislation in that connection is "necessarily wide and extensive in scope",[63] and so the broadness of the ERO was not sufficient to rule it unconstitutional.

The first scenario in which an assembly would be unauthorised would be a procession or meeting in contravention of a requirement that the Commissioner of Police should be notified and indicate no objection thereto.

[69] The construction of the POO must be "compatible with the fundamental right of demonstration and procession", and therefore in line with "the principle of tolerance and proportionality"—in other words, "there should be prior warnings" before "arrests and dispersals" etc.

[72] Therefore, at all unauthorised assemblies, either some sort of violent conduct has occurred, or the police have publicly issued a warning and order under section 17(3) of the POO.

[74] The court therefore held that the CFI had envisaged a highly improbable scenario in deciding that the prohibition on the wearing of masks at an entirely orderly assembly was implied by section 3(1)(b) of the PFCR.

[80] It also agreed with the CFI on the disproportionality of section 5 granting the police powers to remove face masks and making refusal an offence.

[84] The central government immediately criticised the Court of First Instance's ruling, causing concern for the independence of Hong Kong's judiciary.

He also criticised the court's citation of overseas cases, and suggested that Henry VIII clauses could have no relevance to Hong Kong because he "died in 1547".