郭卓堅 v. 立法會主席梁君彥及另一人

HCAL 751/2018

[2018] HKCFI 983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 751 OF 2018

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DECISION

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1.  In this application for leave to apply for judicial review, the Applicant seeks the following relief:-

(1)   a declaration that it is unconstitutional for any Government officers, other than those designated officials who attend the Legislative Council “to sit in on the meetings of the Legislative Council and to speak on behalf of the government” pursuant to Article 62(6) of the Basic Law, to carry out activities freely within the Legislative Council while it is session; and

(2)   an injunction to restrain Government officers from going to the Legislative Council to monitor the “activities” of members of the Legislative Council, contrary to Section 19 of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (“the Ordinance”).

2.  In relation to the first matter, there is, in my view, no reasonable legal basis to support the contention that it is unconstitutional for Government officers, other than those who attend the Legislative Council pursuant to Article 62(6) of the Basic Law, to enter, or move or act freely within, the Legislative Council.

3.  Section 8 of the Ordinance provides as follows:-

“(2) The right of persons other than members or officers of the Council to enter or remain within the precincts of the Chamber shall be subject to the Rules of Procedure or any resolution of the Council limiting or prohibiting the enjoyment of such right.

(3) The President may from time to time, for the purpose of maintaining the security of the precincts of the Chamber, ensuring the proper behaviour and decorum of persons therein and for other administrative purposes, issue such administrative instructions as he may deem necessary or expedient for regulating the admittance of persons (other than members or officers of the Council) to, and the conduct of such persons within, the Chamber and the precincts of the Chamber.

(4) Copies of administrative instructions issued by the President under subsection (3) shall be duly authenticated by the Clerk and exhibited in a conspicuous position in the precincts of the Chamber; and such copies when so authenticated and exhibited shall be deemed to be sufficient notice to all persons affected thereby.”

4.  In Section 2 of the Ordinance, the expression “precincts of the Chamber” is defined to mean –

“the Chamber and offices of the Council and any adjacent galleries and places provided for the use or accommodation of members of the public and representatives of the press, television and radio, and subject to any exceptions made by the President under subsection (2) includes, during the whole of any day the Council or a committee is sitting, the entire building in which the Chamber is situated and any forecourt, yard, garden, enclosure or open space adjoining or appertaining to such building and used or provided for the purposes of the Council”.

5.  Pursuant to Section 8(4) of the Ordinance, the President of the Legislative Council has issued a set of Administrative Instructions for Regulating Admittance and Conduct of Persons, Cap 382A, governing, inter alia, the right and restriction of access to various part of the precincts of the Chamber, and the conduct of those admitted into the precincts of the Chamber.

6.  In other words, whether Government officers may be permitted to enter the precincts of the Chamber, and what they may do within the precincts of the Chamber, are matters to be determined by the Legislative Council and/or the President of the Legislative Council.  There is no suggestion, or evidence, to suggest that Government officers have entered the precincts of the Chamber contrary to any Rules of Procedure or any resolution of the Legislative Council or the Administrative Instructions for Regulating Admittance and Conduct of Persons issued by the President of the Legislative Council.  The first matter raised in the present application is obviously unarguable.

7.  In relation to the second matter, Section 19 of the Ordinance states as follows:-

“Any person who –

(a) assaults, obstructs or molests any member going to, being within or going from the precincts of the Chamber, or endeavours to compel any member by force or menace to declare himself in favour of or against any motion or matter pending before the Council or a committee; or

(b) assaults, interferes with, molests, resists or obstructs any officer of the Council while in the execution of his duty; or

(c) tampers with, deters, threatens, molests or in any way unduly influences any witness in regard to any evidence to be given by him before the Council or a committee; or

(d) threatens, molests or in any way punishes or injures or attempts to punish or injure any person for having given evidence before the Council or a committee or on account of any evidence which he has given before the Council or a committee,

commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months.”

8.  The Applicant has not adduced any evidence in his affirmation filed on 2 May 2018 which can conceivably support the allegation that the conduct of Government officers within the precincts of the Chamber is such as would fall within the prohibited lists of conduct in Section 19(a) to (d) of the Ordinance.

9.  In all, the present application for judicial review is, in my view, obviously unarguable.

10.  I also do not consider that the Applicant has sufficient standing to make the present application.  There are plainly other persons who have a stronger and more direct interest than the Applicant in the matters complained of, eg, the existing members of the Legislative Council, who can apply for judicial review if grounds exist for such application to be made.  I see no reason why the Applicant should be allowed to pursue these complaints when those other persons fail, or do not see the need, to do so.

11.  For the foregoing reasons, the present application for leave to apply for judicial review is dismissed.