TSUI KUEN NANG v. THE DIRECTOR OF IMMIGRATION

CACV203/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 203 OF 1997

(ON APPEAL FROM HCAL NO. 68 OF 1997)

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J U D G M E N T

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Chan, CJHC :

1. In these appeals and cross appeal, four issues have been raised. Three of them relate to the constitutionality and validity of certain provisions of the Immigration (Amendment) (No.2) Ordinance 1997 and the Immigration (Amendment) (No.3) Ordinance 1997. The fourth issue relates to the legality of the Provisional Legislative Council which enacted these Ordinances. At the hearing in early March, the parties agreed that this Court should deal with the issues relating to the Ordinances first and that if a decision on these issues can dispose of these appeals and cross appeal, the fourth issue need not be argued. On 2nd April 1998, we gave a decision on the constitutionality and validity of the relevant provisions of the two Ordinances. The result of that decision is that the appeals and cross appeal in Civil Appeal Nos.203 and 218 of 1997 can be disposed of but that further submissions on the fourth issue have to be made in Civil Appeal Nos. 216 and 217 of 1997. This is the resumed hearing.

The outstanding issue

2. It is the appellants' case that the Provisional Legislative Council which enacted the No.2 and No. 3 Ordinances is not a competent legislative body to enact these ordinances since it has no legal basis. This is the issue we are now asked to deal with.

3. In HKSAR v. David Ma & Others [1997] HKLRD 761, this Court decided, among other things, that the establishment of the Provisional Legislative Council has a legal basis and hence the Reunification Ordinance which was enacted by it is valid. The arguments in the present two appeals have surrounded that decision and were, with the assistance of short but succinct submissions from leading counsel from both sides, able to be completed in half a day. Mr Dykes, S.C. for the appellants draws support for his submissions from the affirmation made on 12th September 1997 by Professor Yash Ghai in which the learned Professor set out an opinion seeking to demonstrate that the decision of this Court in the David Ma case on the legality of the Provisional Legislative Council was wrong. Counsel, however, has distilled the arguments in that opinion and not elaborated on them and hence Mr Ma, S.C. for the Director of Immigration has not dealt with them in depth. It is only fair to say that the arguments of counsel are largely similar to those advanced in the David Ma case with different and greater emphases placed on different aspects of the same points. We are grateful for their submissions particularly on the point regarding the jurisdiction of the HKSAR courts. I shall try to do justice to their submissions by summarising them as follows.

The arguments in these appeals

4. Mr Dykes submits that what this Court said on the legality of the Provisional Legislative Council in the David Ma case was obiter since it consisted of observations which were not necessary for the decision in that case. He submits that the decision in that case on that issue is in any event wrong for a number of reasons.

5. First, counsel says that it is wrong to say that the HKSAR courts cannot challenge the laws and acts of the National People's Congress of the PRC generally and in particular the laws and acts setting up the Provisional Legislative Council. It is submitted that this Court had adopted a wrong comparison with the courts under a colonial regime since the HKSAR is not a colony but an integral part of the PRC. Even a colonial court can challenge by way of judicial review an Order-in-Council or an Act of Parliament of the sovereign state and that the HKSAR courts have jurisdiction to examine any law or act of the NPC which contravenes the PRC Constitution or the Basic Law. Counsel relies on the cases of Abeyesekera v. Jayatalike [1932] AC 260 and Sammut v. Strickland [1938] AC 678.

6. Secondly, counsel submits that where there is a donation of legislative power by the Sovereign to a colony, it is necessary to reserve in the Sovereign a power to legislate for the colony, either generally or in respect of particular matters. This the United Kingdom did in respect of Hong Kong prior to the change of sovereignty. However, there is no provision in the Constitution of the PRC or the Basic Law reserving such legislative power to the NPC. The NPC cannot contravene the PRC Constitution or the Basic Law. Hence, it is argued, the only way the NPC can legislate for the HKSAR is by way of an amendment to the Basic Law. But there has been no amendment to the Basic Law. It follows, counsel argues, that the Provisional Legislative Council was not properly set up according to the PRC Constitution or the Basic Law. The report to the NPC in 1994 by the Preparatory Committee on the setting up of a Provisional Legislative Council and the approval by the NPC was not and could not be regarded as a valid law of the PRC. It is also pointed out that there was no evidence before the court on the legal status of the NPC decisions and resolutions which purported to establish and rectify the Provisional Legislative Council or that they could override the Basic Law.

7. Thirdly, it is argued that if the Provisional Legislative Council was not a body within the Basic Law, and if the NPC did not have power to set up the Provisional Legislative Council, then the only justification for the setting up of this body is the doctrine of necessity. However, if that is the case, the HKSAR courts have the jurisdiction to look at its actions by way of judicial review to see whether what was done is necessary for the situation and to examine the legislation in each individual case. The courts would also have the jurisdiction to consider whether the interim body which is formed pursuant to the doctrine of necessity should exist longer than necessary. In other words, the scope of action of this interim body is limited to making laws which are necessary and which comply with the Basic Law. Counsel relies on the case of Madzimbamuto v. Lardner-Burke [1969] 2 AC 645and Mitchell v. D.P.P. [1986] LRC (Const) 35. It is submitted that at least the retrospective provision of the No.3 Ordinance is not necessary since it is to affect only 1,500 children.

8. It is further submitted that the arguments in the present case are slightly different from the argument advanced in the David Ma case. It was argued in that case that the Provisional Legislative Council was not a legislative body which complied with Article 68 of the Basic Law. Counsel argues that this Court was not referred to Article 66 which provides that the Legislative Council of the HKSAR shall be the legislature of the Region. Hence, only a legislature formed in accordance with Article 68 can be a legislature of the HKSAR. If this is correct, then the laws made by the Provisional Legislative Council cannot be the laws of the HKSAR under Article 18 since they were not laws previously in force in Hong Kong as provided for in Article 8 or laws enacted by the legislature of the Region.

9. On the other hand, Mr Ma, S.C. for the Immigration Department submits that the decision in the David Ma case was not obiter but a ratio decidendi. That being the case, this Court is bound by it since it is bound by its own decisions. He further submits that the decision of this Court in the that case is correct.

10. First, he argues that the Basic Law did not envisage or cater for the situation in which the HKSAR found itself on the 1st July 1997 there being no "through train" for the last Legislative Council. The Basic Law only anticipated a Legislative Council in accordance with Articles 66 and 68 of the Basic Law. When this could not materialise, the only body which could do something was the Sovereign itself through the NPC. It was perfectly legitimate for the Sovereign in those circumstances to take steps to pass laws for the peace, order and good government of the HKSAR by setting up the Provisional Legislative Council and to deal with the situation not dealt with by the Basic Law. Secondly, counsel argues that this Court only held that the HKSAR courts have no jurisdiction to challenge the NPC acts in the circumstances of this case. It did not compare NPC acts with the Basic Law or other legislation of the PRC. Thirdly, in any event, the setting up of the Provisional Legislative Council can be justified by the doctrine of necessity. The doctrine, counsel says, stems from the need to preserve law and order in a society to ensure the safety and well being of its citizens. The two ordinances in question are necessary to implement the provisions of the Basic Law.

Ratio or obiter

11. It is important to examine first of all what this Court said in the David Ma case and to see whether it was a ratio decidendi or just an obiter dictum of the judgment in that case. If it was a ratio, it is binding on this Court. If, however, it was only obiter, it is not.

12. As to the meaning and importance of a ratio decidendi, there is a good summary in Halsbury's Laws of England, 4th Ed.,Vol.26 at paragraph 573 :

"The use of precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases; it provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. What constitutes binding precedent is the ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. ... If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."

13. With regard to obiter dictum, this is discussed in paragraph 574 :

"Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand are generally termed 'dicta'. They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a judge are known as 'obiter dicta', whilst considered enunciation of the judge's opinion on a point not arising for decision, and so not part of the ratio decidendi, have been termed 'judicial dicta'. A third type of dictum may consist in a statement by a judge as to what has been done in other cases which have not been reported."

Decision in the David Ma case

14. The David Ma case was a reservation of certain questions of law for the determination by the Court of Appeal pursuant to section 81 of the Criminal Procedure Ordinance, Cap.221. In that case, the accused faced certain charges for conspiracy to pervert the course of public justice, contrary to common law. They were charged and the trial started before 1st July 1997. At a resumed hearing after the handover, they applied for a permanent stay of the criminal proceedings alleging that the charges and proceedings did not survive the change of sovereignty. The first argument put forward was that the common law which was previously in force in Hong Kong did not continue to apply since the Basic Law did not automatically adopt the common law after the handover. It was necessary to have an overt act of adoption by the NPC or its Standing Committee. The second question raised in that case was that the Reunification Ordinance which purported to adopt the common law and continue pending criminal proceedings after the handover was not valid because it was not enacted by a competent legislature. It was contended that the Provisional Legislative Council was not legally established and hence could not have enacted the Reunification Ordinance.

15. In that case, this Court decided that upon the true construction of the relevant provisions of the Basic Law, the common law which was previously in force in Hong Kong, was automatically adopted by the Basic Law and hence, the common law has survived the change of sovereignty. So have pending criminal proceedings. Having come to that conclusion, I said that this would be sufficient to dispose of the two questions of law reserved for the determination of the Court. I went on to say at pages 777 and 787 :

"However, in case I am wrong in my interpretation of the Basic Law, I should deal with the other issues which have been raised in argument. I would also do this out of respect to counsel who have so comprehensively prepared their submissions and because of the public concern which has been generated by this important case. I take note of Ms Li, SC's concern over the risk of an unnecessary ruling, by way of obiter, on important issues such as those raised in the present case."

"If I am wrong on the interpretation of the relevant provisions of the Basic Law, I am of the view that the provisions of the Reunification Ordinance has made it amply clear that the common law survives, the indictment is still valid and the pending criminal proceedings continue. It is an ordinance which was lawfully and validly passed by the Provisional Legislative Council which was legally established by the Preparatory Committee which is an NPC body and exercises the authority and powers conferred on it by the 1990 and 1994 NPC Decisions. Its establishment was ratified by the NPC on 14th March 1997."

16. My Lord Nazareth VP in that case having dealt with the interpretation of the Basic Law regarding the survival of the common law, said at page 791:

"It is accordingly not necessary to address the HKSAR alternative ground, which is reliance upon the Reunification Ordinance.

It is in this somewhat incidental way that this question of plainly momentous importance to Hong Kong comes to be raised. As I have said, in the light of the conclusions I have already reached, which suffice to dispose of the reference to this Court, it is now not necessary to address that question. In ordinary circumstances I would not have contemplated doing so. But this is no ordinary case. The question having been raised and full submissions received from distinguished senior counsel, it seems to me that it would not be in the public interest to decline to deal with it, for that would be at the same time suppress a potential opportunity for the question to be expeditiously resolved by the Court of Final Appeal and the Standing Committee of the NPC, if it comes to that. That we should deal with the matter was also the unanimous view of counsel, although Ms Li did say that the present circumstances perhaps do not appropriately present all the aspects that have to be examined to resolve the question."

17. My Lord Mortimer VP, having come to his conclusion on the adoption of the common law by the Basic Law, dealt with the legality of the Provisional Legislative Council as a second issue in that case. He said at page 805B:

"On this question, as the other, the Reunification Ordinance is clear. I turn now to consider the question whether the Reunification Ordinance has legal effect, in other words, whether it has been validly passed by a competent legislature."

At the end, he concluded at page 809:

"...I would hold that the Reunification Ordinance - which is in part to the same effect - is part of the laws of the HKSAR having been validly enacted by the PLC which is a competent legislature established under the laws enacted by the NPC and its Standing Committee."

18. It is clear that the issue on the legality of the Provisional Legislative Council was an issue which was originally called for determination by the Court of Appeal. The Court was able to dispose of the questions reserved for it by a construction of the provisions of the Basic Law. In one sense, it is therefore possible to say that that part of the Court's decision on the legality issue was not necessary. However, it was the second reason for answering the questions reserved for the Court in the affirmative. This reason would be necessary for the decision if the first reason were found to be erroneous by the Court of Final Appeal. It would then be the reason in support of the decision as a whole. It might be described as a fall-back reason or belt and braces as counsel put it. Nonetheless, in my view, it is a necessary part of the decision.

Binding effect of the earlier decision

19. As to the binding effect of a second reason for decision, Lord Simonds in the House of Lords case of Jacobs v. London County Council [1950] AC 361said at page 369:

"It is not, I think, always easy to determine how far, when several issues are raised in a case and a determination of any one of them is decisive in favour of one or other of the parties, the observations upon other issues are to be regarded as obiter. ...

But, however this may be, there is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision, because he has given another reason also.

A good illustration will be found in London Jewellers Ltd. v. Attenborough [1934] 2 KB 206. In that case the determination of one of the issues depended on how far the Court of Appeal was bound by its previous decision in Folkes v. King [1923] 1 KB 282. In the latter case the court had given two grounds for its decision ..... In the former case it was contended that, since there was another reason given for the decision, the second reason was obiter. But Greer L.J., from whose judgment I have taken the passage above cited, said in reference to the argument of counsel: 'I cannot help feeling that if we were unhampered by authority there is much to be said for this proposition which commended itself to Swift J., and which commended itself to me in Folkes v. King, but that view is not open to us in view of the decision of the Court of Appeal in Folkes v. King. In that case two reasons were given by all the members of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first : we must take both as forming the ground of the judgment.' So also in Cheater v. Cater [1918] 1 KB 247, 252, Pickford L.J., after citing a passage from the judgment of Mellish L.J., in Erskine v. Adeane (1873) LR 8 Ch 256 said: 'That is a distinct statement of the law and not a dictum. It is the second ground given by the Lord Justice for his judgment. If a judge states two grounds for his judgment and bases his decision upon both, neither or those grounds is a dictum.' "

20. It is quite clear that the opinion of this Court in the David Ma case on the legality of the Provisional Legislative Council was the second reason for the decision in that case and formed part of the ratio decidendi. It was not merely an obiter dictum. That being the case, the decision on that issue is, rightly or wrongly, indeed binding on this Court. This is so unless it can be demonstrated that we were per incuriam. It is not sought to argue that this Court's decision in that case was per incuriam in that we had failed to follow or had misinterpreted any decision of the Court of Appeal or a higher court or had overlooked a statutory provision.

21. Mr Ma submits that even if we now think that our earlier decision was wrong, we are still bound by that decision. He relies on Halsbury's Laws of England, 4th Ed.,Vol.26 at paragraph 578 on page 298 :

"Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake."

22. That is indeed the legal position. Even if we were now to take the view that our previous decision was wrong, unless we fall within certain restricted exceptions (which do not apply in these appeals), we are still bound by that decision. The only remedy lies with the Court of Final Appeal which is the only authority that can rectify it.

23. This is sufficient to dispose of the last issue in these appeals. It is not necessary to deal with the other arguments. However, I would out of respect for counsel add that their further submissions have cast a new light on the point regarding the jurisdiction of the HKSAR courts to examine the laws and acts of the NPC. It would seem that my analogy with the colonial courts in the David Ma case might not have been entirely appropriate. It may be that in appropriate cases, apart from the matters to which I have referred on page 781 in the David Ma case, the HKSAR courts do have jurisdiction to examine the laws and acts of the NPC which affect the HKSAR for the purpose of, say, determining whether such laws or acts are contrary to or inconsistent with the Basic Law which is afterall not only the Constitution of the HKSAR, but also a national law of the PRC. But as counsel has pointed out, my views on the courts' jurisidiction in the David Ma case were expressed in the context of the case and cannot be understood to mean that NPC laws and acts would prevail over the Basic Law. Nevertheless, whether this point may have any effect on the final conclusion on the legality issue is for the Court of Final Appeal to decide, although speaking personally I am not persuaded by the further submissions that I would have come to a different conclusion on this issue.

24. This Court did not find it necessary to deal with the doctrine of necessity in the David Ma case since we had given reasons for the decision in that case. Having heard counsel's further submissions, it would seem that both counsel and Professor Yash Ghai find justification in the doctrine of necessity for the setting up of the Provisional Legislative Council. If I understand counsel correctly, he does not seek to argue to the contrary. What counsel argues is that if it is a legislature which was formed pursuant to the doctrine of necessity, its acts must be subject to judicial review. I do not for one moment doubt that the HKSAR courts have the jurisdiction to judicially review the laws passed and the acts done by the Provisional Legislative Council to see whether it has acted within the powers given to it by the Preparatory Committee. This is so whether the Provisional Legislative Council was formed pursuant to the authority and mandate given to the Preparatory Committee by the 1990 NPC decision or whether it was based upon the doctrine of necessity.

Conclusion

25. In conclusion, I take the view that the decision of this Court in the David Ma case on the legality of the Provisional Legislative Council was a ratio decidendi of that case and is binding on this Court. In that case, it was decided that there is a legal basis for the Provisional Legislative Council which is a competent legislature, albeit with limited powers and a limited term. In the circumstances of this case, I hold that the No.2 and No.3 Ordinances were validly enacted.

Nazareth, V.-P.:

26. The first part of our judgment, delivered on 2 April 1998, not having disposed of these appeals entirely, it was necessary to hear submissions upon the remaining matter, which was the legality of the Provisional Legislative Council. That matter had come before this Court in HKSAR v Ma Wai-kwan, David and others [1997] HKLR D 761 when a challenge to the legality to that body was rejected. The appellants here wish to renew that challenge. Some of the grounds they seek to rely upon appear to be new or to have new aspects of significance. It would be fair to say that those grounds, at any rate in the way they are formulated or relied upon, were not presented to nor addressed by the Court in the David Ma case.

27. Be that as it may, no doubt to meet any objection that the matter had already been decided by this Court, which would be bound by its previous decision, Mr Philip Dykes SC, for the appellants, submitted, as set out in his written argument, that the "observations of the Court of Appeal on the legality of the Provisional LegCo in the David Ma case are obiter. It was not necessary for the disposal of the case to hold that the Provisional LegCo was a law-making body that could make laws which the courts of the HKSAR would enforce".

28. He also submitted, of course, that the earlier decision of the Court of Appeal was wrong, indicating the substance of his grounds. However, since he would clearly fail in his attempt to pursue the latter grounds in this Court unless he succeeded upon the former, i.e. his obiter point, I, also, turn first to address this.

Obiter dicta and ratio decidendi

29. The nature of obiter dicta, ratio decidendi and judicial precedent for which the former afford the usual basis of operation of the latter, is helpfully explained in Halsbury's Laws of England, 4th ed Vol 26 at paragraphs 573 and 574, as my Lord the Chief Judge has pointed out. I need accordingly only add the following explanation and repeat the following extracts from the authorities that he and my Lord Mortimer V-P have quoted:

"The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision ... If more reasons than one are given by a Tribunal for its judgment, all are taken as forming the ratio decidendi." (paragraph 573)

The following passages from the judgment of Lord Simonds in Jacobs v London County Council [1950] AC361; 369-370 are instructive:

"... there is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision, because he has given another reason also. ... in London Jewellers Ld v Attenborough ... Greer LJ ... said ... '... in Folkes v King ... two reasons were given by all the members of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first: we must take both as forming the ground of the judgment.' ... Mellish LJ, in Erskine v Adeane said: '... If a judge states two grounds for his judgment and bases his decision upon both, neither of those grounds is a dictum.'"

I also adopt the foregoing passages as correct statements of the law.

Whether earlier decisions on legality of PLC obiter?

30. In the David Ma case the relevant question was whether the offence at common law of conspiracy to pervert the course of public justice survived as part of the laws of the HKSAR, and likewise the indictment there, following the change of sovereignty at the handover. Under the Hong Kong Reunification Ordinance passed by the Provisional Legislative Council on 1 July 1997 they clearly would have.

31. Chan CJHC held that by virtue of the provisions of the Basic Law the indictment survived adding at p.777H:

"The above reasons are sufficient to dispose of the two questions of law reserved for the determination of this Court. The answers to those questions are both clearly in the affirmative. However, in case I am wrong in my interpretation of the Basic Law, I should deal with the other issues which have been raised in argument. I would also do this out of respect to counsel who have so comprehensively prepared their submissions and because of the public concern which has been generated by this important case. I take note of Ms Li's concern over the risk of an unnecessary ruling, by way of obiter, on important issues such as those raised in the present case."

He then went on to hold at p.779I that the like position was achieved by the Reunification Ordinance and that the Provisional Legislative Council which enacted it was legally established.

32. In my view, although he may have utilised his decision on the legality of the Provisional Legislative Council only as a back-stop in his reasons for his decision that the common law and the pending criminal proceedings survived, it was nonetheless a part of the reasons for that decision.

33. Mortimer V-P likewise found at p.804A that the common law previously applied in Hong Kong was adopted into the law of the SAR on 1 July 1997 by the Basic Law. He then went on to hold at p.805B that on the continuity of the legal system the Reunification Ordinance was clear besides preserving the validity of the indictment. His reliance upon that Ordinance thus required its validity to be established by reference to the competence of the Provisional Legislative Council which enacted it. His rejection of the challenge to the legality of that Council was accordingly quite clearly a part of the ratio decidendi of his judgment.

34. For my part, I also found at p.791I that by virtue of the Basic Law, the previous common law survived. I then observed that it was therefore not necessary to address the HKSAR's alternative ground which was reliance upon the Reunification Ordinance. I added at p.792A that in ordinary circumstances I would not have contemplated addressing that question and continued:

"But this is no ordinary case. The question having been raised and full submissions received from distinguished senior counsel, it seems to me that it would not be in the public interest to decline to deal with it, for that would be at the same time to suppress a potential opportunity for the question to be expeditiously resolved by the Court of Final Appeal and the Standing Committee of the NPC, if it comes to that. That we should deal with the matter was also the unanimous view of counsel, although Ms Li did say that the present circumstances perhaps do not appropriately present all the aspects that have to be examined to resolve the question."

Thereafter having concluded at p.794B that this Court could not enquire into the constitutionality of the Provisional Legislative Council and having expressed certain reservations as to that conclusion, I added:

"I find it necessary to say that even though the foregoing be obiter, it should not be regarded as a concluded view."

I then proceeded to address the question of the legality of the Provisional Legislative Council, concluding at p.797G and 799E that the Provisional Legislative Council was validly appointed under NPC decisions and probably also ratified by the NPC resolution of 14 March 1997.

35. Plainly upon the text of my judgment, it can be argued that the two points addressed after I had reached my conclusion that the common law survived under the Basic Law, were not relied upon for that conclusion that the common law survived the change of sovereignty. Certainly it appears that I did not, for instance, resort to the two latter points as any sort of back-stop in supporting my conclusion that the Basic Law ensured the continuity of the common law. Moreover, the view I formed of the Reunification Ordinance was there specifically seen as obiter. But all of that is little to the point. The legality of the Provisional Legislative Council having been part of the ratio decidendi of the majority of the court, that would prevail as the ratio decidendi of the decision rejecting the challenge to the legality of the PLC, so that it would be binding upon this Court. To the nature of the latter matter I now turn briefly.

Whether previous decisions binding on the Court of Appeal

36. In Ng Yuen-shiu [1981] HKLR 352, this Court held that it should regard itself as bound by its previous decisions. My understanding of the position is that it has since invariably done so. The decision of the Court in the David Ma case, as to the legality of the Provisional Legislative Council, is, in my view, binding upon this Court subject to the three conditions in Young v Bristol Aeroplane Co Ltd [1944] KB 718 i.e.:

(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow;

(2) It is bound to refuse to follow a decision of its own which, although not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords [in our circumstances the Court of Final Appeal and pre July 1997 the Privy Council];

(3) The court is not bound to follow a decision of its own if given per incuriam.

The scope of the latter expression may be thought not to be all that precise. In Huddersfield Police Authority v Watson [1947] KB 842 Lord Goddard CJ said that a decision was given per incuriam when a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute. However, in Farrell v Alexander (CA) [1976]1 QB 345; 369E Scarman LJ, as he then was, said of the expression "'per incuriam' - a phrase in a foreign tongue which I translate as 'Homer nodded'".

37. It is unnecessary to pursue this aspect of the matter, notwithstanding that Mr Dykes' written argument on the provisional legislature point did contend that although the fundamental point in the appellant's case is that Article 66 of the Basic Law provides that the Legislative Council shall be the legislature of the region, i.e. the only legislature of the SAR, Article 66 was not referred to in the judgment. This was clearly suggestive of a per incuriam submission. However none eventuated, and the point consequently does not have to be addressed. That new grounds may now be sought to be relied upon, also does not affect the position that the Court is bound by its previous decision.

Conclusion

38. In the result, I am satisfied that this Court is bound by its decision in the David Ma case that the Provisional Legislative Council was legally constituted. The appellants' submissions that this decision in the David Ma case was wrong therefore do not fall for consideration. That result was perhaps not unforeseen given that those submissions were made with such commendable brevity. Their mention, however, even in that way may serve to enable them to be pursued in the Court of Final Appeal as being matters raised before this Court, which possibly was the understandable object of the procedure adopted.

The result is that detailed by the Chief Judge, with which I agree.

Mortimer, V.-P.:

39. Having delivered our decision upon part of the appellants' submissions in these appeals, we have now heard further argument on the legality of the provisional legislature.

40. Mr Dykes SC, who appears for the appellants, has made detailed submissions to the effect that the earlier decision of this Court in HKSAR v Ma Wai-kwan, David [1997] HKLRD 761 where it affirmed the legality of the Provisional Legislative Council is both obiter and wrong.

41. Mr Geoffrey Ma SC, for the Director of Immigration, submits that the relevant passages in the judgment in Ma Wai-kwan's case are part of the ratio decidendi and therefore this Court is bound by that decision in the present appeals and cannot re-visit the point.

42. It is convenient to deal with this issue first. If the Director is right, the point resolves this part of the appeals.

43. The issue

The issue is whether those parts of the judgment dealing with the legality of the provisional legislature in Ma Wai-kwan's case are statements simply "by the way", or expressions of opinion not part of the reasons for the decision. Alternatively, whether those further reasons for the conclusion reached were part of the ratio decidendi and therefore binding upon us. This Court regards itself as bound by its previous decisions. See Ng Yuen-shiu [1981] HKLR 352.

The judgments in HKSAR v Ma Wai-kwan

44. Chan CJHC delivered the leading judgment. He turned to deal with the Hong Kong Reunification Ordinance and the legality of the provisional legislature at 777I:

"However, in case I am wrong in my interpretation of the Basic Law, I should deal with the other issues which have been raised in argument. I would also do this out of respect to counsel who have so comprehensively prepared their submissions and because of the public concern which has been generated by this important case. I take note of Ms Li's concern over the risk of an unnecessary ruling, by way of obiter, on important issues such as those raised in the present case."

He concluded his judgment at 787J as follows:

"If I am wrong on the interpretation of the relevant provisions of the Basic Law, I am of the view that the provisions of the Reunification Ordinance have made it amply clear that the common law survives, the indictment is still valid and the pending criminal proceedings continue. It is an ordinance which was lawfully and validly passed by the Provisional Legislative Council which was legally established by the Preparatory Committee which is an NPC body and exercises the authority and powers conferred on it by the 1990 and 1994 NPC Decisions. Its establishment was ratified by the NPC on 14 March 1997."

Nazareth V-P turned to this issue at 791J:

"It is in this somewhat incidental way that this question of plainly momentous importance to Hong Kong comes to be raised. As I have said, in the light of the conclusions I have already reached, which suffice to dispose of the reference to this Court, it is now not necessary to address that question. In ordinary circumstances I would not have contemplated doing so. But this is no ordinary case. The question having been raised and full submissions received from distinguished senior counsel, it seems to me that it would not be in the public interest to decline to deal with it, for that would be at the same time suppress a potential opportunity for the question to be expeditiously resolved by the Court of Final Appeal and the Standing Committee of the NPC, if it comes to that. That we should deal with the matter was also the unanimous view of counsel, although Ms Li did say that the present circumstances perhaps do not appropriately present all the aspects that have to be examined to resolve the question."

He concluded his judgment in these terms at 798G-I:

"To sum up my conclusions, I would answer the two questions in the affirmative.

Upon the submissions made to this Court, in my view:

(i) This Court has no jurisdiction to entertain challenges to the legality of the Provisional Legislative Council, that being a body established by the sovereign.

(ii) The Provisional Legislative Council was validly appointed under the NPC Decisions of 4 April 1990 and 8 August 1994, which have effect as laws in China.

(iii) The appointment of the provisional legislature was ratified by the NPC Resolution of 14 March 1997."

I approached the issue without reservation. At 805C I said:

"Is the Provisional Legislative Council established by law?

This question is addressed because it is submitted by the defendants that the Reunification Ordinance is devoid of legal effect as it was not passed by a competent legislature."

I concluded at 809C as follows:

"Conclusion

For these reasons I would hold that from 1st July 1997 the common law is adopted in the HKSAR by the provisions of the Basic Law. I would also hold that the validity and legal effect of proceedings commenced under an indictment before the 1st July 1997 are preserved by the Basic Law after that date.

Finally, I would hold that the Reunification Ordinance - which is in part to the same effect - is part of the laws of the HKSAR having been validly enacted by the PLC which is a competent legislature established under the laws enacted by the NPC and its Standing Committee."

45. In each judgment between the passages to which I have referred, there is a detailed analysis of the applicable law upon which submissions had been made.

The principles

46. Mr Ma submits that these passages in the judgment are further reasons for the decision and are just as much part of the ratio decidendi as the reasons given earlier. He relies heavily upon the judgment of Lord Simonds (with which the four other members agreed) in Jacobs v London County Council [1950] AC 361 at 369-370. It is worth citing the whole passage:

"It is not, I think, always easy to determine how far, when several issues are raised in a case and a determination of any one of them is decisive in favour of one or other of the parties, the observations upon other issues are to be regarded as obiter. That is the inevitable result of our system. For while it is the primary duty of a court of justice to dispense justice to litigants, it is its traditional role to do so by means of an exposition of the relevant law. Clearly such a system must be somewhat flexible, with the result that in some cases judges may be criticised for diverging into expositions which could by no means be regarded as relevant to the dispute between the parties; in others other critics may regret that an opportunity has been missed for making an oracular pronouncement upon some legal problem which has long vexed the profession. But, however this may be, there is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision, because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, then a case which ex facie decided two things would decide nothing. A good illustration will be found in London Jewellers Ld v Attenborough. In that case the determination of one of the issues depended on how far the Court of Appeal was bound by its previous decision in Folkes v King. In the latter case the court had given two grounds for its decision, the second of which was that 'where a man obtains possession with authority to sell, or to become the owner himself, and then sells, he cannot be treated as having obtained the goods by larceny by a trick.' In the former case it was contended that, since there was another reason given for the decision, the second reason was obiter. But Greer LJ, from whose judgment I have taken the passage above cited, said in reference to the argument of counsel: 'I cannot help feeling that if we were unhampered by authority there is much to be said for this proposition which commended itself to Swift J, and which commended itself to me in Folkes v King, but that view is not open to us in view of the decision of the Court of Appeal in Folkes v King. In that case two reasons were given by all the members of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first: we must take both as forming the ground of the judgment.' So also in Cheater v Cater, Pickford LJ, after citing a passage from the judgment of Mellish LJ, in Erskine v Adeane said: 'That is a distinct statement of the law and not a dictum. It is the second ground given by the Lord Justice for his judgment. If a judge states two grounds for his judgment and bases his decision upon both, neither of those grounds is a dictum.'"

47. With considerable respect, I would follow this passage as a correct statement of the law. But this is not to say that its application is easy. Some statements are obviously not reasons for a decision reached and are simple asides of opinion upon a point of law which is not decisive. If the first reason is sufficient to resolve one issue in a case the reasons which follow - if also decisive - will form part of the ratio. Similarly, it seems to me, if the first issue dealt with is sufficient to resolve the case decisions made on a second issue after full argument and with careful reasons will also be part of the ratio decidendi, or may in some instances amount to another ratio decidendi. If it is not necessary for the court to give more than one reason, or it is not necessary to decide more than one issue, this does not mean that alternative reasons or reasons for alternative issues do not form part of the ratio.

Obiter or ratio decidendi?

48. The final question is therefore, whether on a correct analysis the relevant passages in the three judgments are part of the ratio decidendi, or a separate ratio decidendi, in the case.

49. Chan CJHC recognised counsel's concern about an unnecessary ruling which could be obiter but he dealt with the relevant issue as an alternative should he have been wrong in his earlier interpretation of the Basic Law. Further, he decided the issue out of respect for the comprehensive submissions of counsel and because of the public concern which had been generated by "this important case".

50. Nazareth V-P said that it was not necessary to address this issue and that in ordinary circumstances he would not have done so, but went on to recognise that "this is no ordinary case". He thought it would not be in the public interest to decline to deal with the point and "suppress a potential opportunity for the question to be expeditiously resolved by the Court of Final Appeal ...".

51. I dealt with the submissions advanced on this part of the case without reservation.

52. In each of the judgments the issues dealt with first were sufficient to resolve the appeal. In that sense, it was not necessary for any one of us to deal with the issue on the legality of the provisional legislature at all. But each of us did so after hearing full argument on the point. The point is and was one of great public importance. Each judgment is carefully reasoned and each concludes with a clear decision on the issue.

Conclusion

53. I find it impossible in these circumstances to say that these statements were "by the way". Applying the principles I have attempted to set out, I would hold without hesitation that the issue on the legality of the Legislative council was decided in Ma Wai-kwan's case. We are bound by that decision in the present appeals which, on this ground, must be similarly decided.

54. That is sufficient to resolve this issue on these appeals and I would decide accordingly.

The other submissions

55. In these circumstances should the submissions on the legality of the provisional legislature advanced in this case be further addressed? For my part I decline to do so. Such further consideration would serve no useful purpose.

Chan, CJHC :

56. In the light of our decision in April on the other three issues and our decision today, the results of these appeals and cross-appeal are as follows : the appeal of the Director of Immigration in Civil Appeal No. 203 of 1997 is dismissed; the cross-appeal in Civil Appeal No.203 of 1997 and the appeal in Civil Appeal No. 218 of 1997 are by majority allowed and the appeals in Civil Appeal Nos.216 and 217 of 1997 are by majority dismissed.