LO KIN HEI, CHAIRMAN OF THE SOUTHERN DISTRICT COUNCIL v. THE SECRETARY OF THE SOUTHERN DISTRICT COUNCIL

HCAL 1827/2020

[2021] HKCFI 500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1827 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision (“the Decision”) of the Secretary (“the Secretary”) of the Southern District Council (“the Council”) made on or after 24 June 2020 not to circulate papers and not to keep, record, prepare and upload the minutes and audio recording of the proceedings of the 5^th Meeting (“the Meeting”) of the Council on 2 July 2020 in respect of Item 10 on the approved agenda for the Meeting, namely, “Request for Information on Cases Involving Mentally Incapacitated Persons Handled by the Southern Police Division”.

2.  In what follows, references to:

(1)  “Section” or “s” shall be to the District Councils Ordinance, Cap 547 (“the Ordinance”);

(2)  “SO” shall be to the Standing Orders of the Council (“the Standing Orders”) made pursuant to s 68; and

(3)  “BL” shall be to the Basic Law.

BASIC FACTS

3.  The Applicant is the Chairman of the Council. The Secretary is a Senior Executive Officer (District Council), a public officer within the Southern District Office of the Home Affairs Department (“HAD”).

4.  In early June 2020, there occurred, apparently, a suspected case of assault and criminal damage in Tin Wan, Southern District, involving a mentally incapacitated person (“MIP”) which raised concerns on the handling of MIPs by frontline police officers in the course of their day-to-day work.  By a letter to the Applicant dated 14 June 2020, Ms Yuen (a Southern District Councillor for the Tin Wan Constituency) proposed to raise the following item, namely, “Request the Southern Police District to provide information on handling cases of mentally incapacitated persons” (“the Proposed Agenda Item”), for discussion at a meeting of the Council.  In that letter, Ms Yuen stated that she had the following queries for the Government:

“1. Are there any guidelines for frontline police officers to identify MIPs as early as possible and communicate effectively with them?

2. How many MIP-related cases were handled in the Southern District between 2019 and 2020?

3. How does the police guarantee that MIPs’ rights are protected after arrest?”

5.  Ms Yuen’s letter to the Applicant was copied to the Secretary.  On 23 June 2020, the Secretary, through the Secretariat of the Council, wrote to the Applicant stating, amongst other things, that the Proposed Agenda Item should not be included as an item on the agenda of a meeting of the Council because they “concerned … cases of mentally incapacitated persons handled by the Hong Kong Police Force, rather than a matter concerning Southern District at the district level”.

6.  On 24 June 2020, the Applicant wrote to the Secretary stating that he had decided to approve the Proposed Agenda Item for the following reasons:

“1) the agenda item clearly relates to the ‘matters affecting the well-being of the people in the District’, especially the well-being of mentally incapacitated persons, the underprivileged group that needs extra attention from the District Council. This rightly fits into the description of the council’s function stipulated on Cap. 547 Sect. 61(a)(i).

2) Policing is one of the ‘public services within the District’, which fits into Cap. 547 Sect. 61(a)(ii), unless the government is telling the Council that policing is not one of those ‘public services’ anymore.

3) According to numerous cases in the past, in which the decisions were made by my predecessors, former SDC Chairpersons … they both accepted numerous agenda items that affect the well-being of people in the Southern District & also relate to matters concerning a broader area.  On those precedent cases, the HKSARG didn’t sound any disagreements and acted according to the Chairpersons’ decisions.”

7.  Subsequently, the Secretary circulated the agenda (“the Agenda”) for the Meeting amongst the members of the Council, including the Proposed Agenda Item as Item 10 referred to at the beginning of this decision.  However, the Secretary did not circulate Ms Yuen’s letter or any other papers relating to Item 10 ahead of the meeting, nor did she set aside any time for discussion of Item 10 at the Meeting.

8.  The Meeting took place on 2 July 2020 at the SDC Conference Room, 1/F, Ocean Court, 3 Aberdeen Praya Road, Aberdeen, Hong Kong. Both the Secretary and the District Officer (Southern) (“the DO”), amongst others, were present at the meeting.  The Meeting proceeded as normal until Item 10 on the Agenda was reached.  The Applicant informed the Council members that he would first deal with the “procedural question” of whether Item 10 (as well as Item 9 on the Agenda concerning gambling inside Stanley Prison) should be allowed for discussion at the Meeting.  At that stage, the DO, the Secretary and other representatives of Government departments walked out of the SDC Conference Room.  An incident occurred which led to the intervention of the Police which it is not necessary to set out in this decision.  Eventually, the Meeting resumed and Items 9 and 10 on the Agenda were discussed in the absence of the Secretary.  An audio recording / verbatim note of the discussion was kept by the Applicant.  As the Secretary only returned to the Meeting after the discussion of Items 9 and 10 had ended, she did not keep any minutes or audio recording of the discussion of the Council in respect of those items.  Neither did she upload an audio recording of that part of the proceedings of the Council to the (public) homepage of the Council.

9.  The Applicant, with the support of the Council, considered that the Secretary had acted in breaches of various provisions of the Standing Orders, including SO 7(1), (3) and (4), which I shall further consider below.  On 21 July 2020, the Vice-Chairman of the Council on behalf of the Applicant wrote to the Secretary inviting her to rectify her breaches:

“(a) Rectify your breaches of the SOs in respect of the meeting of 2^nd July 2020 within the next 14 days, in particular by circulating any relevant papers you then had in hand, by correcting the draft minutes to include the discussion relating to Items 9 and 10 and to prepare and upload a proper audio recording of the latter part of the meeting.

(b)  Confirm within 14 days that items 9 and 10 will [be] returned to the agenda of the Council for its next meeting (we indicate that again the Chairman approve them for that purpose) and that you will ensure that the members of the Council are fully informed as to those matters by means of papers prepared for the meeting and that you will take no steps to prevent their discussion at the meeting and that you will take, prepare, record and upload minutes of that meeting in accordance with the Ordinance and the SOs.”

10.  On 17 August 2020, the Director of Home Affairs replied to the Vice-Chairman’s letter, denying any breach of duty or breach of the Standing Orders on the part of the Secretary.  In that letter, it was also stated that the Government had reservation about the two proposed items (ie Items 9 and 10) as being related to a function of the Council as set out in s 61(a) because “the two proposed discussion items are considered as concerning territory-wide issues which did not carry any particular district angle”.

11.  On 14 September 2020, the Applicant made the present application for leave to apply for judicial review of the Decision. Two grounds of judicial review are raised in the Form 86:

(1)  illegality or breach of statutory duty; or

(2)  alternatively, irrationality or Wednesbury unreasonableness.

STATUTORY FRAMEWORK

12.  BL 97 provides that: “District organizations which are not organs of political power may be established in the Hong Kong Special Administrative Region, to be consulted by the government of the Region on district administration and other affairs, or to be responsible for providing services in such fields as culture, recreation and environmental sanitation.”

13.  BL 98 goes on to state that the powers and functions of the district organizations and the method for their formation shall be prescribed by law.

14.  In 1999, the Ordinance was enacted pursuant to BL 97 and 98.  District Councils, 18 in total, are established pursuant to the Ordinance.  The functions of a District Council are prescribed in s 61, as follows:

“The functions of a District Council are -

(a) to advise the Government -

(i) on matters affecting the well-being of the people in the District; and

(ii) on the provision and use of public facilities and services within the District; and

(iii) on the adequacy and priorities of Government programmes for the District; and

(iv) on the use of public funds allocated to the District for local public works and community activities; and

(b) where funds are made available for the purpose, to undertake -

(i) environmental improvements within the District;

(ii) the promotion of recreational and cultural activities within the District; and

(iii) community activities within the District.”

15.  For the purpose of the present case, the relevant functions of the Council are those referred to in s 61(a)(i) and (ii).

16.  Section 66(1) provides that the Chairman shall preside at meetings of a District Council.

17.  Section 68(1) provides that a District Council may make standing orders for regulating its procedure.  Subsection (2) goes on to state:

“Without limiting the generality of subsection (1), the standing orders may make provision for -

(a) times and places of meetings of the District Council or of a committee; or

(b) the summoning, notices, keeping of minutes of proceedings of meetings; or

(c) the voting on matters put before a meeting; or

(d) the determination of any matter by circulation of papers; or

(e) the preservation of order at meetings.”

18.  Section 69(1) provides that for the purpose of carrying out its functions, a District Council may appoint a public officer to act as the secretary of that District Council.  Subsection (2) goes on to state that: “A District Council may determine the duties of the person appointed as secretary under subsection (1).”

19.  The Standing Orders, which were adopted by the Council on 8 November 2018 based on a model prepared by the HAD and amended in early 2020, contain the following relevant provisions:

“C. DUTIES OF CHAIRMAN AND VICE CHAIRMAN OF THE COUNCIL

6. (5) The Chairman shall approve the agenda of a meeting of the Council and shall ensure that the agenda items are compatible with the functions of the Council as stipulated in section 61 of the District Councils Ordinance.

D. SECRETARY OF THE COUNCIL

7. (1) The Secretary shall prepare the agenda, allocate a time slot for each agenda item and set out the maximum number of speeches and duration for each speech in the discussion or debate on an agenda item in respect of a member for each forthcoming meeting of the Council for approval by the Chairman, and shall send the approved agenda and relevant papers to all members. Unless otherwise agreed by the Chairman or by the Vice Chairman in the absence of the Chairman, the notice of a meeting, the agenda and relevant papers shall be issued to members six clear working days before the meeting.

   (3) The Secretary shall prepare the minutes of the proceedings of the Council. The minutes shall record the attendance (including arrival and departure times) of members, matters discussed and decisions taken. The minutes shall be uploaded to the homepage of the Council except for the closed-door sessions of meetings.

   (4) The Secretary shall prepare audio records of the proceedings of the Council. The audio records should be uploaded to the homepage of the Council except for the closed-door sessions of meetings, in which case, prior consent of the Council must be sought.”

DISCUSSION

20.  The test for determining whether leave to apply for judicial review should be granted is well settled.  The court should ask whether the intended application for judicial review is reasonably arguable and has a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).

21.  Under s 61(a)(i) and (ii), the Council’s advisory functions include “matters affecting the well-being of the people in the District” and matters relevant to “the provision and use of public facilities and services within the District”.  In Ms Yuen’s Letter seeking to raise the Proposed Agenda Item for discussion at a meeting of the Council, she referred to an incident which occurred in Tin Wan in the Southern District involving the Police and a MIP, and requested for information on the handling of MIPs by the Police, including in particular the number of MIP-related cases handled by the Police in the Southern District between 2019 and 2020.  Item 10 of the Agenda also expressly stated that it related to a request for “Information on Cases Involving Mentally Incapacitated Persons Handled by the Southern Police Division”.  It has not been argued by Mr Anthony Chan (for the Secretary) that the matters raised by Item 10 did not affect the well-being of the people in the Southern District, or did not relate to the provision of public services within the Southern District.

22.  As earlier mentioned, the Secretary’s objection to Item 10 was that the matters raised under that item “concerned … cases of mentally incapacitated persons handled by the Hong Kong Police Force, rather than a matter concerning Southern District at the district level”[1], or concerned “territory-wide issues which did not carry any particular district angle”[2]. The bone of the contention, it would appear, is whether a District Council’s advisory functions are limited or confined to matters which relate exclusively to the relevant District.  The Government’s current position, as I understand it, is that matters which relate to a District and also the territory of Hong Kong generally would fall outside a District Council’s advisory functions under s 61(a).

23.  It is, in my view, reasonably arguable that a matter which affects the well-being of the people in a given District, or relates to the provision of public services within that District within the meaning of s 61(a)(i) or (ii) does not cease to do so merely because it is, or may also be, relevant to other parts of Hong Kong, or concerns territory-wide issues.

24.  That this is the right view of the matter was recognized by the Government in the past.  In Chan Shu Ying v Chief Executive of the HKSAR [2001] 1 HKLRD 406, at §54, Hartmann J (as he then was) recorded what was said by the former Secretary for Constitutional Affairs in an affidavit, as follows:

“The Secretary for Constitutional Affairs, Mr Suen Ming Yeung, in an affidavit sworn in support of the Respondent, says the following concerning the role of these councils:

‘District Councils play an essential advisory role on district matters and issues affecting the whole of the HKSAR. In particular, they advise the Government on matters affecting the well-being of the people, the provision and use of public facilities and services, on the adequacy and priorities of Government programmes, and on the use of public funds in their respective districts. They also reflect local views to the relevant Government bureaux and departments.

It is the Administration’s practice to consult the District Council of a district on matters which are likely to affect the livelihood, living environment or well-being of residents within the district. The Government has regularly and frequently consulted the District Councils on both district issues (such as the impact of the Government’s 1998 squatters policy, allocation of secondary school places for primary 6 pupils, the noise problem of the Tsuen Wan MTR Depot) and territory-wide issues (such as the implementation of the Government’s policy of having one social worker for each secondary school, tourism development, labour rights and protection).’” [emphasis added]

25.  The same view was expressed in the Home Affairs Bureau’s Consultation Document entitled “Review of the Role, Functions and Composition of District Councils” released on 27 April 2006 and provided to the Legislative Council:

“Existing Role and Functions of DCs

1.14 While the role and functions of DCs have mainly been advisory, the Government sees the DCs as its key partners on district matters. Departments have been consulting DCs on major local matters as well as territory-wide issues that are likely to affect the livelihood, living environment or well-being of the residents in the district. Departments in general strive to develop a close working relationship with the DCs.

Existing Involvement of DCs in District Management

2.2 DCs play a pivotal role in the District Administration Scheme. They monitor the provision and delivery of district services, and advise the Government on matters relating to the local community. They are also consulted on territory-wide issues…” [emphasis added]

26.  It may be argued that the Government is not bound, as a matter of strict law, by whatever views that might previously have been expressed by the former Secretary for Constitutional Affairs or Home Affairs Bureau, although one would ordinarily have thought that an affidavit produced by the Government for the purpose of court proceedings, and a public document prepared by the Government and provided to the Legislative Council are serious documents the contents of which would have been vetted with a high degree of care before they are cleared for filing or publication.  In any event, since this is a leave application only, it is not necessary for the court to reach a final view on scope of the Council’s advisory functions under s 61(a).  The question at this stage is whether it is reasonably arguable that the matters proposed to be discussed under Item 10 fall within the scope of the Council’s advisory functions under s 61(a)(i) and/or (ii).  In my view, it is.

27.  In the present case, it is not in dispute that the Secretary failed or refused, as a matter of fact, to:

(1)  send papers relevant to Item 10 on the Agenda (including Ms Yuen’s letter) to the members of the Council prior to the Meeting;

(2)  prepare the minutes of the Meeting pertaining to the discussion under Item 10;

(3)  upload the minutes of the Meeting pertaining to the discussion under Item 10 to the homepage of the Council;

(4)  prepare an audio record of the Meeting pertaining to the discussion under Item 10; and

(5)  upload the audio record of the Meeting pertaining to the discussion under Item 10 to the homepage of the Council.

28.  Assuming that the matters proposed to be discussed under Item 10 fall within the scope of the Council’s advisory functions under s 61(a)(i) and/or (ii), it is reasonably arguable that the Secretary acted unlawfully and in breach of her duties in failing to:

(1)  circulate relevant papers amongst the members of the Council, contrary to SO 7(1);

(2)  prepare the minutes of the Meeting which recorded the matters discussed under Item 10, and upload the minutes to the homepage of the Council, contrary to SO 7(3); and

(3)  prepare an audio record of the Meeting relating to Item 10, and upload the audio record to the homepage of the Council, contrary to SO 7(4).

29.  I shall now briefly consider three arguments advanced by Mr Chan to resist the present leave application.

30.  First, Mr Chan argues that the Government is responsible for deciding and implementing district administration and related matters.  While the Government may and does consult a variety of bodies including the Legislative Council, advisory organs and district organizations (including District Councils), it is the Government that decides whether to consult and, if so, what and whom to consult.  This is because such questions are matters of judgment that the Government is best placed to make by evaluating the unique circumstances of each case in view of the relevant political, social and/or economic considerations.  Accordingly, the court should refrain from substituting its own judgment on such questions.  Mr Chan further argues that District Councils have no constitutional right to be consulted by the Government.  The corollary is that the Government has no duty to consult District Councils in respect of matters falling within the advisory functions of District Councils under s 61(a).  In support of this argument, Mr Chan relies upon the constitutional role of the Government under BL 62 (which includes the conduct of administrative affairs under sub-paragraph (2)), the position of district organizations, including District Councils, under BL 97 (which permits but does not require their establishment), and the functions of District Councils under BL 98 and s 61 (being merely advisory without executive or administrative powers save where funds are made available under s 61(b)).  He also relies on s 85, which empowers the Chief Executive, after consultation with a District Council, to give that Council directions of a general character, in the performance of its functions, in relation to matters which affect the public interest.

31.  On the other hand, Mr Nigel Kat, SC (for the Applicant) argues that the Government, having decided to enact the Ordinance and establish District Councils with powers and functions as set out in s 61, is under a concomitant duty to consult District Councils in respect of matters failing within the scope of their advisory functions.  In support of this argument, Mr Kat relies on the wording of BL 97, which provides that “District organizations … may be established in the Hong Kong Special Administrative Region, to be consulted by the government of the Region on district administration and other affairs” [emphasis added].  He also relies upon, by way of analogy, the decision of the Court of Appeal in Chan Ka Lam v Country and Marine Parks Authority [2019] HKLRD 1198, which held that the Country and Marine Parks Authority was under a statutory duty to consult the Country and Marine Parks Board under s 5(1)(b) of the Country Parks Ordinance, Cap 208 (“There is hereby established a Country and Marine Parks Board which shall - (b) consider and … advise the Authority on, the policy and programmes prepared by the Authority in respect of country parks and special areas, including proposed country parks and special areas”).  Mr Kat submits that, in any event, Mr Chan’s argument that the Government is under no legal duty to consult District Councils does not answer, or address, the complaint of illegality or breach of statutory duty on the part of the Secretary.

32.  My views on Mr Chan’s first argument, which are necessarily provisional only at this stage, are as follows:

(1)  It is the Government’s responsibility to decide and implement district administration and related matters.  Subject to constraints laid down by the Basic Law or legislation, it is generally for the Government to decide which bodies to consult and on what matters in so far as district administration is concerned.

(2)  As held by Hartmann J (as he then was) in Chan Shu Ying v Chief Executive of the HKSAR [2001] 1 HKLRD 405, the Basic Law permits, but does not create, a constitutional obligation on the Government to establish District Councils.

(3)  Nevertheless, the Government and the Legislative have decided, or chosen, to establish them under the Ordinance, and gave them the advisory functions set out in s 61(a).

(4)  Whether, in such circumstances, the Government comes under a statutory duty to consult District Councils in respect of matters properly falling within the scope of s 61(a) is a question of general importance which merits further consideration at the substantive hearing (if it should become necessary to do so).  I pause merely to observe at this stage that the Government also appears to have a change of mind on this matter.  In the Home Affairs Bureau’s Consultation Document referred to in §25 above, the following was stated at §2.3 -

“With a view to ensuring that district needs and aspirations are fully taken into account, Government departments are required to consult DCs in advance on their proposals that may affect the well-being of people in the districts and to take on board their advice wherever possible. Such proposals may involve public works projects located in the respective districts, traffic management measures, planning matters, etc.” [emphasis added]

     This having been said, it may be possible for the Government to argue that “required” in that context means required as a matter of “practice”, not as a matter of “law”.

(5)  Even if the Government is under no statutory duty to consult District Councils, it does not automatically follow that the Secretary is at liberty to act contrary to her duties under s 68 and the Standing Orders, because -

(1)  the Government’s duty to consult and the District Council’s duty (or function) to advise are not necessarily the same; and

(2)  if the matters raised under Item 10 properly fall within the Council’s advisory functions under s 61(a), it is reasonably arguable that the Secretary ought to have complied with her duties under SO 7(1) (3) and (4) regarding the circulation of papers for the Meeting (the Agenda of which had been approved by the Applicant as Chairman of the Council under SO 6(5)), and preparation and uploading of the minutes and audio record of the Meeting on the homepage of the Council.

33.  Second, Mr Chan argues that ss 68 and 69 and the Standing Orders, properly construed, are not intended to ground public law challenges.  Mr Chan says that were it otherwise, any member of a District Council or any public official who is dissatisfied with any decision by the Chairman to include or exclude an agenda item (or indeed any ruling on the Standing Orders) could seek relief by way of judicial review, which would severely disrupt and delay the work of District Councils.  Mr Chan further argues that the Standing Orders is not law, and unless a breach of the Standing Orders is also contrary to some law, the breach has no legal effect, and the court will not inquire whether there is a breach.

34.  Assuming that the matters proposed to be discussed under Item 10 fall within the scope of the Council’s advisory functions under s 61(a)(i) and/or (ii), I consider that the Secretary is, prima facie, legally obliged to perform her duties as determined by the Council under s 69(2), including those set out in the Standing Orders made by the Council under s 68(1).  For the purpose of the court’s exercise of its supervisory jurisdiction in judicial review, it does not matter whether the Standing Orders should strictly be regard as “law”.  Anyhow, the Standing Orders, being made by the Council pursuant to s 68(1), may properly be regarded as “subsidiary legislation” or “subordinate legislation” as defined in s 3 of the Interpretation and General Clauses Ordinance, Cap 1 (ie “any … order … or other instrument made under or by virtue of any Ordinance and having legislative effect”).  The suggestion that permitting challenges of the sort now raised by the Applicant by way of judicial review would severely disrupt or delay the work of District Councils is not demonstrated on the evidence.  In any event, any such challenge would be subject to the filtering process of the leave requirement (involving considerations of merits, standing and promptitude). The present application raises discrete legal issues concerning the meaning and effect of various provisions of the Ordinance and Standing Orders, which seem to me to be well suitable for determination in an application for judicial review.

35.  Third, Mr Chan argues that the Government’s decision that questions concerning how the Police handles cases involving mentally incapacitated persons should be ventilated elsewhere instead of the Council is neither irrational nor unreasonable in the public law sense.  This argument is, it seems to me, based on a confusion or misunderstanding of the issue raised in the present application.  The focus of the challenge in the intended application for judicial review is not whether questions concerning how the Police handles cases involving mentally incapacitated persons should be ventilated in the Council or elsewhere.  There may well be another forum, or a more suitable forum, for such questions to be discussed.  That is, however, beside the point.  The issue to be determined in the intended application for judicial review is whether the Secretary acted unlawfully or in breach of duties imposed by the Ordinance and/or Standing Orders in the circumstances of the present case.

36.  In short, I am of the view that the Applicant’s challenge to the Decision on the ground of illegality or breach of statutory duty is reasonably arguable and has a realistic prospect of success.  Having reached this conclusion, it is not necessary for me to deal with the Applicant’s alternative argument based on irrationality.

37.  For the avoidance of doubt, I should make it clear that the above views are provisional only.  The merits of the application, and the Secretary’s objections to the application, will have to be fully ventilated at the substantive hearing.

DISPOSITION

38.  Leave to apply for judicial review of the Decision is granted.

39.  In relation to the question of the costs of the leave application, the normal order where the court grants leave to apply for judicial review is costs in the cause.  However, Mr Kat has drawn the court’s attention to s 86 of the Ordinance, which provides that “A member of a District Council or a committee shall not be subjected to any liability, action, claim or demand by reason of anything done bona fide for the purpose of carrying into effect the provisions of this Ordinance or any other enactment conferring functions on a District Council”.  Since this provision was only mentioned at the end of the hearing and Mr Chan did not have a proper opportunity to consider its meaning or effect, I shall reserve the question of the costs of the leave application to be dealt with at the substantive hearing.

40.  Lastly, I understand from Mr Kat that the Applicant may apply to amend the Form 86 to raise a further complaint that the Secretary, in making the Decision, merely acted upon the instruction of some senior Government officer(s) (as confirmed to be the position by Mr Chan in the course of his oral submissions).  There may also be a consequential application for discovery.  The court expresses no view on these potential applications, and shall leave it to the Applicant to make whatever applications that he may be advised to pursue.  The parties shall submit their respective proposed directions for the further conduct of this application for judicial review within 14 days from the date of this decision.  The court shall give further directions on paper upon the expiry of the 14-day period.