LEUNG CHUNG HANG, SIXTUS v. PRESIDENT OF LEGISLATIVE COUNSEL

HCAL 1160, 1164, 1165,

1171 & 1178/2018

[2018] HKCFI 2657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1160 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1164 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1165 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1171 OF 2018

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1178 OF 2018

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(Heard together)

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JUDGMENT

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INTRODUCTION

1.  The principal issue which arises for determination in these applications for judicial review is whether the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance, Cap 632, is inconsistent with the Basic Law.  For reasons which I shall explain in this judgment, I am of the view that the Ordinance is consistent with the Basic Law.

BACKGROUND FACTS

(i)     The XRL

2.  In about 2001, the Hong Kong Government, upon its macro policy assessment of Hong Kong’s overall best interests, initiated discussion with the Mainland Government on the idea of establishing a high-speed rail link connecting Guangzhou, Shenzhen and Hong Kong.

3.  In the LC Paper No. CB(2)1966/16-17(01) titled “Customs, Immigration and Quarantine Arrangements of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link” submitted by the Government to the Legislative Council dated July 2017 (“the Legco Paper”), there appears the following summary of the advantages of a high-speed rail system and the state of development/proposed development of the Mainland’s high-speed rail system:-

“Advantages of high-speed rail

2. High-speed rail is a significant achievement in the development of modern transportation technologies. The first-ever commercial high-speed rail link in the world came into service in Japan in 1964. Since then, an increasing number of high-speed rail links have been constructed around the world. To date, high-speed rail services are operated in places such as the Mainland, Taiwan, Japan, Korea, France, Germany and Russia etc. Countries which are planning the construction of new high-speed rail links include the United States, the United Kingdom, Singapore, Malaysia and Indonesia. High-speed rail has undoubtedly become an important modern mode of long-distance mass transport, as well as a new trend of intercity travel.

3. Although there is no common international standard for the hourly speed of high-speed rail, it is generally defined as train services operating at 200 kilometres per hour (km/h) or above, and at some sections the trains may even operate up to 350 km/h. This more than doubles the maximum speed of about 80 km/h and 135 km/h respectively for trains on the existing Tseung Kwan O Line and the Airport Express.

4. Unlike airports, high-speed rail stations are generally located closer to city centres, with some even located therein. Passengers of high-speed rail do not need to arrive at the station one or two hours earlier as when travelling by plane, and generally do not need to check in their baggage as in air travel. Therefore, considering the time between departing for the airport and arriving at the city centre of the destination, it is usually more convenient to travel to cities within medium or short distances by high-speed rail than by air (such as cities within the reach of four-hour travelling time by high-speed rail). Moreover, rail services are relatively less affected by weather conditions; and since high-speed rail links usually have dedicated tracks for the exclusive use by high-speed trains, they are also less susceptible to delays caused by busy traffic on runways as in the case of flight services.

5. Not only can high-speed rail effectively save travelling time because of its speediness, it also has a substantial carrying capacity and can greatly shorten the travelling time between cities to create a ‘24-hour living circle’. Citizens along the railway alignment can travel to and from different cities within a day conveniently, which in turn fosters a new mode of living. High-speed rail can promote tourism and social exchanges, as well as expand the room for developing commercial and professional services, thereby raising the overall productivity of society. In addition, high-speed rail is a green transport mode. It is the ideal choice for travellers who care about the environment as its carbon emissions are only about 15% and 25% of those from aircraft and buses respectively.

Development of high-speed rail in Mainland

6. Owing to the aforesaid merits, high-speed rail has been developing rapidly throughout the world, and the development in the Mainland in this area has been particularly remarkable. Following the attainment of a speed of 200 km/h by the Guangzhou-Shenzhen intercity railway in 1998, the Mainland started to plan and invest in the construction of high-speed rail links on a massive scale. In 2008, the National Development and Reform Commission approved the ‘Medium and Long-term Railway Network Plan (revised in 2008)’ to build a high-speed rail network consisting of eight lines based on the ‘Four Verticals and Four Horizontals’ layout. The whole network (including the existing railway lines to be upgraded and modified) would be 12 000 km long by 2020.

7. As at end-2016, the high-speed rail network on the Mainland has already surpassed 20 000 km in length, which is far longer than the total length planned in 2008 and ranks first globally in terms of total length. Although the investment cost for high-speed rail is relatively high, the economic and social benefits it brings cannot be underestimated. In particular, high-speed rail has unprecedentedly increased the mobility of the large population on the Mainland, carrying over 1.44 billion passengers in 2016 alone. In addition to fostering the development of the traditional economic zones, high-speed rail has boosted the overall development of the country.

8.     In July 2016, the State Council further approved the ‘Medium and Long-term Railway Network Plan’ and proposed the construction of high-speed rail main lines based on the ‘Eight Verticals and Eight Horizontals’ layout (see Graphic 1). The new projects will adopt in principle the standard of 250 km/h or above (the speed can be lowered as appropriate in areas with complex and difficult terrain, geological and climate conditions). For railway lines running through densely populated towns, economically advanced areas and mega-cities, the standard of 350 km/h for trains may be adopted; for regional rail links, the standard of 250 km/h or below will be adopted in principle; for intercity railway lines, the standard of 200 km/h or below will be adopted in principle. The target is to increase the total length of the high-speed rail network on the Mainland to 30 000 km in 2020, covering more than 80% of the major cities; and to 38 000 km by 2025, basically realising by 2030 visions including ‘enhancing internal and external connectivity’, ‘enabling multiple inter-regional access’, ‘connecting provincial capitals by high-speed rail’, ‘enhancing accessibility of prefecture-level cities’ and ‘providing basic high-speed rail network coverage to county areas’.”

4.  The Guangzhou-Shenzhen-Hong Kong Express Rail Link (the “XRL”) as now constructed and in operation is a high-speed rail system linking Hong Kong with Shenzhen and Guangzhou, and connecting Hong Kong to the national high-speed rail network, including the Beijing-Guangzhou Passenger Line running through Guangzhou, Changsha, Wuhan, Zhengzhou and Beijing, and the Hangzhou-Fuzhou-Shenzhen Passenger Line running through coastal cities such as Shantou, Xiamen, Fuzhou and Hangzhou.

5.  The XRL has a total length of about 140 km, with the Hong Kong Section (the “HKS”) of the XRL being a 26-km long underground railway system running from the West Kowloon Station (the “WKS”) in Kowloon to the boundary at Huanggang, from where it enters the Mainland and runs through Futian Station, Shenzhen North Station, Guangmincheng Station, Humen Station and Qingshen Station before reaching Guangzhou South Station.

6.  The WKS is connected by footbridge to Austin MTR Station on the West Rail Line and Kowloon MTR Station on the Tung Chung Line/Airport Express, thus serving as a transport-interchange hub linking the XRL with the domestic railway network.

(ii)     Co-location Arrangement

7.  In the Legco Paper, the Hong Kong Government also explains the concept of “co-location arrangement”, as compared to the traditional “separate-location arrangement”, and its benefits:-

“19. As a cross-boundary railway, efficient and time-saving clearance procedures are absolutely essential to realising the full potential of the XRL in terms of speed and convenience. Since the planning stage of the Hong Kong Section of the XRL, the HKSARG has been studying the co-location arrangement as the preferred way forward for the XRL clearance procedures.

20. Co-location arrangement means conducting clearance procedures of two different jurisdictions successively in one place. This contrasts with a traditional separate-location arrangement similar to that adopted for the current Hong Kong-Guangzhou Intercity Through Trains, under which clearance procedures are conducted at the places of departure and arrival in two different jurisdictions respectively. Under a co-location arrangement, passengers can complete clearance procedures of both Hong Kong and the Mainland at the WKS in one go. Passengers departing from Hong Kong can go to all cities on the national high-speed rail network without having to undergo clearance procedures again on the Mainland. Passengers coming to Hong Kong can board trains at any station of their choice on the national high-speed rail network, and go through Mainland departure clearance and Hong Kong arrival clearance at the WKS. They will not be constrained by whether a particular Mainland city has clearance facilities.

21. If a co-location arrangement is not implemented and a separate-location arrangement is implemented as with the intercity through train service between Hong Kong and Guangzhou, XRL passengers may only board or alight at the handful of Mainland stations equipped with clearance facilities. This will hamper the efficiency and flexibility offered by the XRL. In other words, using a separate-location arrangement for the XRL will greatly undermine its benefits and make it just like another intercity express rail without the advantage of easier access to cities throughout the country. In addition to saving time and enjoying the speed and convenience of the XRL services, a co-location arrangement is critical to fully unleashing the transport, social and economic benefits of the XRL project.”

8.  According to Mr Lai Yee Tak Joseph, Permanent Secretary for Transport and Housing (Transport) of the Transportation and Housing Bureau of the Hong Kong Government, in around January 2017, after the Hong Kong Government and the Mainland authorities had fully considered the latest patronage forecast and inconvenience to passengers, cost-effectiveness and uncertainties over the construction period for installing customs, immigration and quarantine (“CIQ”) facilities in the Mainland, both sides decided not to further explore the idea of separate-location arrangement, and came to the conclusion that co-location arrangement at the WKS was the only feasible solution to take forward the XRL project.  From that point onwards, the two sides focused on discussing the details of the co-location arrangement at the WKS.  Since the focus of the Applicants’ complaint in these applications is not co-location arrangement as such, or co-location arrangement being put in place at the WKS, but the establishment of a Mainland Port Area at the WKS subject to the Mainland’s jurisdiction and Mainland laws, I do not propose to set out in this judgment the evidence relating to the Hong Kong Government’s consideration and reasoning for (i) adopting a co-location arrangement, instead of a separate-location arrangement or some other arrangements, for conducting CIQ clearance for passengers travelling on the XRL between Hong Kong and the Mainland, and (ii) choosing the WKS as the place for the co-location arrangement.

9.  In around July 2017, the Hong Kong Government and the Mainland authorities reached consensus on the framework for implementing a co-location arrangement at the WKS (“the Co-location Arrangement”), under which, amongst other things, (i) a Mainland Port Area was to be set up in the WKS for carrying out Mainland immigration checks, customs control and quarantine measures, and (ii) the Mainland Port Area would be established by the Mainland and be subject to its jurisdiction and in accordance with relevant Mainland laws (except for certain reserved matters).

10.  The underlying reasons for the above arrangement have been explained by Mr Lai.  In his First Affirmation filed on 6 August 2018 in HCAL 1178/2018, the following was stated:-

“43. Further, the HKSARG and the relevant Mainland authorities agreed, after discussion and deliberation, that the co-location arrangement must be implemented in a smooth and safe manner in order to avoid creating any security issues. Hence, both sides agreed that the laws of the Mainland would apply in the MPA. On this basis, it was agreed that the laws of the HKSAR would continue to apply to the reserved matters and the courts of Hong Kong would continue to exercise jurisdiction in respect of those matters. The reserved matters concern the management of land, the operation of the XRL and its safety, the repair and maintenance of buildings and structures and their subsequent structural alterations, the protection of the rights and benefits of those Hong Kong staff members working in the MPA etc., which have been defined in the Co-operation Arrangement and the Ordinance.

44. Moreover, the MPA is a relatively small but specific area, which does not include any surrounding area of the MPA, including the space above the MPA and the land below, or other places at the WKS. Except for this specific area of around 109,000m² (which is around one-fourth of the total construction floor area of the WKS) and for those passengers who choose to use the XRL to travel to and from the Mainland, the jurisdiction of the courts of Hong Kong at the WKS would not be affected in any way. As a matter of fact, in discussing with the Mainland on the area of the MPA, the HKSARG has adopted the principle of ‘absolute necessity’ and included only the spaces, in view of high-speed rail passengers’ routes, necessary to implement the co-location arrangement on B2 Arrival Level, B3 Departure Level and B4 Platform Level. Since the MPA should be a seamless area, southbound high-speed rail passengers who are in the train compartments of passenger trains have not yet undergone Mainland departure clearance, and thus should remain under the jurisdiction of the Mainland; whilst northbound high-speed rail passengers have undergone Mainland arrival clearance procedures before getting onto the train compartments of passenger trains at the WKS, and should remain under the jurisdiction of the Mainland as well. It is thus essential for train compartments of passenger trains in operation on the HKS of the XRL to be regarded as part of the MPA.”

11.  In his Second Affirmation filed on 19 October 2018 in HCAL 1178/2018, Mr Lai stated further as follows:-

“23. As stated in the response made by the HKSARG to the Legal Service Division of the LegCo Secretariat dated 22 February 2018 …, the HKSARG had once explored the idea of allowing Mainland officials to enforce only those laws relevant to clearance procedures in the MPA of the WKS similar to the overseas examples. However, studies revealed that such idea was infeasible, both as a matter of law and as a matter of practicality, and could not be adopted for the implementation of the co-location arrangement in the WKS.

24. The HKSARG concluded (and still maintains the view) that limiting the application of Mainland laws in the MPA only to (a) those relating to customs, immigration and quarantine (‘CIQ’) procedures and/or (b) the powers of Mainland officials stationed at the MPA regarding search and seizure is unacceptable as such a curtailed approach may cause serious problems to the security of both the HKSAR and the Mainland and give rise to legal uncertainties. The following factors are pertinent –

(a) Although co-location arrangement is not unprecedented, the arrangement implemented at the WKS is unique internationally in the sense that the exit control of the Mainland authorities is placed outside Mainland China. The only other boundary control point implementing such a mirror arrangement is the Shenzhen Bay Port (‘SBP’)[1]. In the examples of the co-location arrangement at United Kingdom and France and the co-location arrangement at Canada and the United States, only entry clearance is conducted by foreign authorities in the host country. Exit control (or departure clearance) for a particular country, if any, is carried out not on foreign land but on the land of the country in question. In other words, each country retains the full power to arrest or detain any wanted persons and restrain them from leaving the country. For instance, people entering the Channel Tunnel in the United Kingdom have to complete the exit procedures (or departure clearance) with the authorities of the United Kingdom and then go through the entry checks by French authorities before they can board the shuttle train.

(b) For the purpose of exercising exit control in the WKS, the Mainland authorities made it clear to the HKSARG that application of Mainland laws other than those on CIQ matters would be essential for safeguarding the integrity of border control and national security. Otherwise, the Mainland authorities’ ability to arrest, detain and return any wanted persons (e.g. a terrorist or murderer), or to prevent them from leaving the Mainland, would be seriously undermined. Further, from a legal point of view, there is no clear or universal definition of ‘CIQ laws’ as such. Instead, it is only a convenient label used to describe a set of entry/departure clearance procedures governing the movement of goods/people across different jurisdictions. From a practical as well as a legal point of view, it is not possible for the Mainland authorities to produce an exhaustive list or category of Mainland laws falling within the label of ‘CIQ laws’ for application in the MPA given the relevant Mainland authorities may need to invoke different Mainland laws and regulations depending on the circumstances of each individual case. In addition, as it is commonly understood, under the Mainland legal system, the laws and regulations (comprising executive orders issued from time to time by the relevant authorities) are subject to frequent updating, explanation or interpretation. Artificially or arbitrarily carving out certain aspects of the Mainland laws for application at the MPA would thus be impracticable and impossible and would pose a threat to security.

(c) More importantly, if only ‘CIQ laws’ of the Mainland were applied in the MPA, that area would concurrently remain within the HKSAR’s jurisdiction. Such a state of overlapping jurisdictions would lead to serious problems from legal, law enforcement and security angles, as explained below –

(i) Should the Mainland authorities’ power to exercise exit control according to Mainland laws at the MPA be circumscribed to CIQ matters only, once a fugitive on board an XRL train enters into the HKSAR, it may be open to him/her to raise judicial challenges against the Mainland authorities’ decision carried out at the MPA to either detain or remove him/her by way of judicial review (‘JR’) or habeas corpus. If the offence committed by the fugitive falls outside the scope of the so-called ‘CIQ laws’, and hence the relevant Mainland laws would have no application under this scenario, there would be no legal basis for the Mainland authorities to make decisions and/or take actions at the MPA to either detain or remove him/her. Even if the Mainland authorities were to refuse to grant departure clearance to the fugitive at the MPA, the Mainland authorities may be subject to Hong Kong court order once the fugitive were to commence judicial proceeding in Hong Kong (e.g. JR of habeas corpus). In the absence of a legal agreement, the fugitives would be stranded (and possibly set free) in the HKSAR unless they voluntarily return to the Mainland. This scenario would provide much incentive for fugitives or even terrorists to try to escape the Mainland and come to the HKSAR via the XRL. This state of affairs is plainly unacceptable to both the HKSAR and the Mainland from public order and public safety’s perspectives.

(ii) In recent years, the HKSAR faces an influx of non-ethnic Chinese illegal immigrants (‘NECIIs’) from Southern/Southeastern Asian countries to, after entering Hong Kong, raise non-refoulement claims to resist removal to their home countries. Essentially all of these NECIIs entered Hong Kong illegally via the Mainland. An overlapping jurisdiction between the HKSAR and the Mainland at the WKS may be exploited by these illegal immigrants by immediately filing a non-refoulement claim on board an XRL train once the train enters the HKSAR despite the fact that they have yet to undergo any Mainland exit control. As long as they are within the HKSAR’s jurisdiction, the HKSARG would, in the scenario under consideration, be obliged under HKSAR law to assess their claim (and withhold removal), regardless of whether they were granted departure clearance by the Mainland authorities. Even if these persons are denied departure by the Mainland authorities at the WKS, the question would arise as to whether such a decision to deny departure would be subject to the scrutiny of the HKSAR courts. Such legal uncertainty will create a legal loophole that could be exploited by tens of thousands of potential immigration abusers.

(iii) Given the differences in the legal systems between the jurisdictions of the HKSAR and the Mainland, there may be judicial challenges in the HKSAR against the legislative provisions of the Mainland ‘CIQ laws’, the legislative provisions of laws outside the ‘CIQ’ context, or the acts of individual Mainland officials at the MPA. The acts of the individual Mainland officials at the MPA may be challenged before the HKSAR courts on, for example, whether a particular Mainland ‘CIQ law’ or ‘non-CIQ law’ or the enforcement of which by a particular Mainland official would be in breach of the Hong Kong laws or provisions of the Basic Law. Such judicial challenges, tantamount to interference of the Mainland’s law enforcement powers, would cast much uncertainty on the day-to-day operation of the XRL.

25. At the same time, the WKS is more than a CIQ port. It is a station managed by a railway operator in Hong Kong. If application of the laws and legal jurisdiction of the HKSAR therein were completely excluded, it would create abnormalities as well as legal disputes and operational issues. Examples include whether matters relating to land interests, railway operation and safety etc. should be handled in accordance with Mainland laws; whether subsequent modifications and maintenance of the MPA (which forms part of the station built under Hong Kong’s statutory requirements) need to comply with statutory standards in the Mainland; whether the HKSAR employees working in the MPA need to comply with Mainland employment laws (e.g. to enrol in labour insurance programmes of the Mainland) etc. These related issues may bring considerable inconvenience to the daily operation of the XRL and different users in the MPA, and thus are regarded as reserved matters in the Ordinance over which the HKSAR exercises jurisdiction under the co-location arrangement.

26. Balancing the above considerations in terms of public security, immigration control, railway operation and daily management of the WKS, the HKSARG has prudently considered the need for affording jurisdiction to the Mainland officials in properly exercising their clearance functions for high-speed rail passengers without compromising the smooth operation of the XRL and security concerns of the HKSAR. There are detailed provisions in the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement signed on 18 November 2017, setting out matters over which the HKSAR shall exercise jurisdiction in the MPA (namely Articles 3 and 7), including but not limited to construction rights; service concession, operation and regulation of the HKS of the XRL; rights and benefits regarding assets and facilities pertaining to the HKS of the XRL; performance of duties and functions by designated personnel; standards of and duties, responsibilities and liabilities concerning the construction, insurance and design, repair and maintenance of buildings and structures and related facilities; matters relating to the carrying on of business, related insurance and tax affairs of the HKS of the XRL and service provider(s), as well as the tax affairs and employment-related obligation, rights and benefits, protection and insurance of their staff members; regulation and monitoring of the operational safety of the railway system, as well as matters relating to environmental regulation and control etc. The breadth of matters covered therein demonstrated that the HKSARG had given careful considerations on various aspects of matters which would require the exercise of Hong Kong laws/Mainland laws in the MPA, and did not shy away from insisting on the HKSAR exercising jurisdiction over specific matters in the MPA, which were not necessary for the proper functioning of the MPA, during the negotiation with the Mainland side in order to ensure the smooth implementation of the co-location arrangement in the context of the HKS of the XRL.

27.     The HKSARG had duly considered the minimum necessity in defining the MPA to minimize the geographical areas to be affected. In the HKSARG’s arrangement with the Mainland side on the area to be included as the MPA under the co-location arrangement, the HKSARG only included spaces that are absolutely necessary to implement the co-location arrangement in view of XRL passengers’ routes. As such, the MPA comprises merely the designated areas on B2 and B3 levels, the platform areas on B4 level and the relevant connecting passageways at the WKS, as well as train compartments of passenger trains in operation on the HKS of the XRL, without including all other operating areas and facilities of the HKS of the XRL (including the Shek Kong Stabling Sidings, railway tracks and tunnels). These areas which are normally not accessible by XRL passengers remain within Hong Kong jurisdiction where Mainland laws have no application for the reason that the application of Mainland laws thereat is not necessary for the proper functioning of the co-location arrangement.”

12.  The above reasoning of the Hong Kong Government for taking the view that the Mainland Port Area in the WKS should be subject to the Mainland’s jurisdiction and in accordance with relevant Mainland laws (except for the reserved matters) seems to me to be reasonable and makes good sense.  Whether it is legally permissible is a separate issue which I shall be consider later in this judgment.

13.  Pausing here, I should mention that Mr Lui (the Applicant in HCAL 1178/2018), in reliance upon a news report appearing in i-Cable News on 18 August 2017, suggests that sometime between May 2014 and June 2015, a decision was made to abandon the idea of installing CIQ facilities in Futian Station and adopt a co-location arrangement.  The source of information for this allegation is apparently a press release issued by a railway consultant company in the PRC referred to by Mr Lui as “Siyuan” (see paragraphs 34 and 35 of Mr Lui’s 2^nd Affidavit dated 20 August 2018).  This allegation is denied by Mr Lai in his Second Affirmation, at paragraphs 43 to 52.  As mentioned by Mr Lai, Siyuan is not part of the Mainland authorities, and was not directly involved in the discussion of the clearance options between the Mainland authorities and the Hong Kong Government, and the press release could not represent the actual discussion at the time.  The reliability of the source cited by Mr Lui in support of his allegation is questionable.  I accept the evidence given by Mr Lai in paragraphs 43 to 52 of his 2^nd Affirmation, and reject the evidence contained in the i-Cable news report.

(iii)    The Three-step process

14.  On 25 July 2017, the Chief Executive in Council made a decision to endorse the implementation of the Co-location Arrangement regarding Hong Kong and Mainland customs, immigration and quarantine procedures at the WKS subject to a “Three-step Process”, namely:-

(1) Step One: the Mainland and Hong Kong reaching a “Co‑operation Arrangement” in relation to the implementation of the Co-location Arrangement;

(2) Step Two: the Standing Committee of the National People’s Congress of the People’s Republic of China (the “NPCSC”) approving and endorsing the Co‑operation Arrangement by making a decision; and

(3) Step Three: both sides implementing the arrangement pursuant to their respective procedures, including the enactment of local legislation in Hong Kong.

15.  On 15 November 2017, the Legislative Council passed a non-binding motion moved by the Hong Kong Government in support of the Co-location Arrangement.

16.  On 18 November 2017, the Chief Executive of the HKSAR and the Governor of Guangdong Province signed the:-

《內地與香港特別行政區關於在廣深港高鐵西九龍站設立口岸實施‘一地兩檢’的合作安排》(Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement) (“the Co-operation Arrangement”),

thereby completing Step One of the Three-step Process.

17.  The following provisions of the Co-operation Arrangement are of note:-

(1) Article 1 provides that both sides agree to establish a port, comprising the Hong Kong Port Area and the Mainland Port Area, at the WKS to implement the Co-location Arrangement, and the Mainland Port Area is to be established by the Mainland and be subject to its jurisdiction in accordance with the Co-operation Arrangement and the laws of the Mainland.

(2) Article 2 delineates the Mainland Port Area in the WKS, and also provides that the train compartments of trains in operation on the XRL within Hong Kong (including trains which are in motion, stationary and during embarkation or disembarkation) are to be regarded as part of the Mainland Port Area.

(3) Article 4 provides that except for the matters specified in Article 3 and Article 7, the Mainland will exercise jurisdiction (including the jurisdiction of the courts) over the Mainland Port Area in accordance with the Co-operation Arrangement and the laws of the Mainland and, for the purpose of the application of Mainland laws and Hong Kong laws and the delineation of jurisdiction (including the jurisdiction of the courts), the Mainland Port Area shall be regarded as being situated in the Mainland.

(4) Article lists 6 specific areas or matters in relation to which Hong Kong (including the jurisdiction of the courts) shall exercise jurisdiction over the Mainland Port Area.

(5) Article 9 provides that passengers bound for Hong Kong, before leaving the Mainland Port Area, are to be regarded as being present in the Mainland and be subject to exit regulations by the Mainland immigration inspection authority, customs authority and inspection and quarantine authority in accordance with the laws of the Mainland.

(6) Article 10 provides that passengers bound for the Mainland, upon entering the Mainland Port Area, are to be regarded as being present in the Mainland and be subject to entry regulations by the Mainland immigration inspection authority, customs authority and inspection and quarantine authority in accordance with the laws of the Mainland.

18.  On 27 December 2017, the NPCSC approved the Co-operation Arrangement by adopting, at the Thirty-first Session of the Standing Committee of the Twelfth National People’s Congress, the:-

《全國人民代表大會常務委員會關於批准〈內地與香港特別行政區關於在廣深港高鐵西九龍站設立口岸實施“一地兩檢”的合作安排〉的決定》(Decision of the NPCSC on Approving the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement) (“the NPCSC Decision”),

thereby completing Step Two of the Three-step Process.

19.  In addition to approving the Co-operation Arrangement, the NPCSC Decision also expressly confirms that (i) the Co-operation Arrangement is consistent with the PRC Constitution and the Basic Law, and (ii) the implementation of the Co-location Arrangement at the WKS is consistent with the fundamental purposes of the “one country, two systems” principle and of the Basic Law.  In the NPCSC Decision, the following explanation is given for the view that the Co-operation Arrangement is consistent with the PRC Constitution and the Basic Law:-

“ The Session is of the view that the construction of the Guangzhou-Shenzhen-Hong Kong Express Rail Link and the realization of the inter-connection and mutual access between the Hong Kong Special Administrative Region and the national high-speed rail network are conducive to promoting interactions between the people of, and economic and trade activities between, the Hong Kong Special Administrative Region and the Mainland; conducive to the deepening of mutually beneficial co-operation between the Hong Kong Special Administrative Region and the Mainland; and conducive to the Hong Kong Special Administrative Region’s further integration into the macro picture of national development. These have great significance for maintaining the long-term prosperity and stability of the Hong Kong Special Administrative Region. To fully unleash the high-speed rail’s advantages of high speed and great efficiency, enable the vast number of passengers to fully enjoy fast and convenient service, and ensure the transport, economic and social benefits and efficiency of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link, it is necessary to implement co-location arrangement at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link in the Hong Kong Special Administrative Region (‘West Kowloon Station’) and to establish the Mainland Port Area for the specific purpose of conducting clearance and inspection on high-speed rail passengers and their personal belongings and luggage.

The Session is of the view that the Co-operation Arrangement is consistent with the principle of ‘one country, two systems’ and is consistent with the Constitution and the Basic Law of the Hong Kong Special Administrative Region. Pursuant to the Constitution, the Basic Law of the Hong Kong Special Administrative Region authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy, including implementing a separate immigration controls system etc. The making of an appropriate arrangement through consultation on issues relating to the establishment of a port at the West Kowloon Station and the implementation of co-location arrangement thereat by the Government of the Hong Kong Special Administrative Region with the relevant parties of the Mainland is a clear demonstration of the exercise of a high degree of autonomy by the Hong Kong Special Administrative Region in accordance with law. The establishment of the Mainland Port Area at the West Kowloon Station does not alter the boundary of the administrative division of the Hong Kong Special Administrative Region, does not affect the high degree of autonomy enjoyed by the Hong Kong Special Administrative Region in accordance with law, and does not undermine the rights and freedoms enjoyed by the residents of the Hong Kong Special Administrative Region in accordance with law. Out of the need to implement co-location arrangement at the West Kowloon Station, it is appropriate that the Co-operation Arrangement makes provisions for the delineation of jurisdiction (including jurisdiction of the courts) and the application of laws of the Mainland and the Hong Kong Special Administrative Region and expressly provides for the West Kowloon Station Mainland Port Area to be regarded as being situated in the Mainland. The authorities stationed by the Mainland at the West Kowloon Station Mainland Port Area will perform their duties and functions in accordance with the laws of the Mainland, strictly confined to the Mainland Port Area. This is different from the application of national laws in the entire Hong Kong Special Administrative Region under Article 18 of the Basic Law of the Hong Kong Special Administrative Region. The acquisition of the right to use the areas of the West Kowloon Station Mainland Port Area, the duration and the fees will be provided for in a contract to be entered into by the Government of the Hong Kong Special Administrative Region and the relevant Mainland authorities, and this is consistent with the provisions of Article 7 of the Basic Law of the Hong Kong Special Administrative Region regarding the ownership of the land of the Hong Kong Special Administrative Region and the management of its uses. The implementation of co-location arrangement at the West Kowloon Station is consistent with the requirements of the Basic Law of the Hong Kong Special Administrative Region that the Government of the Hong Kong Special Administrative Region should formulate appropriate policies to promote and co-ordinate the development of various trades and provide an appropriate economic and legal environment for promoting economic developments etc., and is consistent with the fundamental purposes of the ‘one country, two systems’ principle and of the Basic Law of the Hong Kong Special Administrative Region.”

20.  The NPCSC Decision continues as follows:-

“ Pursuant to the Constitution of the People’s Republic of China and the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, the Standing Committee of the National People’s Congress decides as follow:

1. The Co-operation Arrangement signed by the People’s Government of Guangdong Province and the Government of the Hong Kong Special Administrative Region on 18 November 2017 is hereby approved, and it is also hereby confirmed that the Co-operation Arrangement is consistent with the Constitution and the Basic Law of the Hong Kong Special Administrative Region.

The Hong Kong Special Administrative Region should enact legislation to ensure the implementation of the Co-operation Arrangement.

2. The establishment of the West Kowloon Station Mainland Port Area and its specific area are to be approved by the State Council.

The Mainland will exercise jurisdiction over the West Kowloon Station Mainland Port Area in accordance with the laws of the Mainland and the Co-operation Arrangement with effect from its commissioning date, and will station immigration inspection authority, customs authority, inspection and quarantine authority, integrated port administration authority and railway police authority thereat to perform duties and functions in accordance with law.  The above-mentioned authorities and their personnel shall not enforce the law in any area outside the West Kowloon Station Mainland Port Area.”

21.  On 26 January 2018, the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill (“the Bill”) was presented to the Legislative Council.  The Bill was read in the Legislative Council the first time on 31 January 2018, the second time on 13 June 2018, and the third time on 14 June 2018.  On 21 June 2018, the Bill was signed by the Chief Executive.

22.  On 22 June 2018, the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (“the Ordinance”) was published in the Gazette as Ord No 23 of 2018, thereby completing Step Three of the Three-step Process.

23.  In what follows, unless the context indicates otherwise: (i) references to Sections shall be to the Ordinance; and (ii) references to Articles shall be to the Basic Law.

THE ORDINANCE

24.  On 31 August 2018, the Secretary for Transport and Housing published a notice in the Gazette dated 28 August 2018 appointing 4 September 2018 as the day on which the Ordinance was to come into operation.  The HKS of the XRL formally commenced operation on 22 September 2018.

25.  The Ordinance consists of a Long Title, a Preamble, 8 Sections in 3 Parts, and 5 Schedules.  The provision of the Ordinance which goes to the heart of the present challenge to the legality of the Ordinance is Section 6 (“Laws and Jurisdiction in Mainland Port Area”) contained in Part 2 (titled “West Kowloon Station Mainland Port Area”).

26.  To understand the provisions in Part 2 of the Ordinance, the following definitions in Section 2 should be noted:-

(1) “Court” means, effectively, all the courts of Hong Kong (from the Magistrates Courts to the Court of Final Appeal) as well as various tribunals (such as the Lands Tribunal, Labour Tribunal, Small Claims Tribunal, etc);

(2) “designated area” means “the area declared as the West Kowloon Station Mainland Port Area under section 4”;

(3) “Mainland” means “the part of China other than Hong Kong, Macau and Taiwan”;

(4) “Mainland Port Area” means (a) “the designated area” and (b) “includes a train compartment to be regarded as part of the West Kowloon Station Mainland Port Area under section 5”; and

(5) “West Kowloon Station” means “the railway station within which the designated area is situated”.

27.  Section 3(1) provides that, for the purpose of the Ordinance:-

(a) a reserved matter is a matter to which the laws of Hong Kong apply, and over which Hong Kong exercises jurisdiction, under Article 3 or 7 of the Co-operation Arrangement; and

(b) a non-reserved matter is a matter to which the laws of the Mainland apply, and over which the Mainland exercises jurisdiction, under Article 4 of the Co-operation Arrangement.

28.  Part 2 of the Ordinance, so far as relevant, states as follows:-

“4 Declaration of West Kowloon Station Mainland Port Area

The area delineated and coloured orange on Plan No. 1 and Annex 1 to Plan No. 1 in Schedule 2 (as read with Annex 2 to Plan No. 1 and Plan Nos. 2, 3 and 4 in that Schedule, and with the Notes on the Plans and Annexes) is declared as the West Kowloon Station Mainland Port Area.

5 Train compartments

(1) For the purposes of this Ordinance, a train compartment of a passenger train in operation on the Hong Kong Section of the Express Rail Link (including a passenger train which is in motion, stationary and during embarkation or disembarkation) is to be regarded as part of the West Kowloon Station Mainland Port Area.

6 Laws and jurisdiction in Mainland Port Area

(1) Except for reserved matters, the Mainland Port Area is to be regarded as an area lying outside Hong Kong but lying within the Mainland for the purposes of –

(a) the application of the laws of the Mainland, and of the laws of Hong Kong, in the Mainland Port Area; and

(b) the delineation of jurisdiction (including jurisdiction of the courts) over the Mainland Port Area.

(2)     Subsection (1) does not affect the boundary of the administrative division of the Hong Kong Special Administrative Region promulgated by the Order of the State Council of the People’s Republic of China No. 221 dated 1 July 1997 and published as S.S. No. 5 to Gazette No. 6/1997 of the Gazette.”

29.  The “designated area” under Section 4 covers various areas on B2 and B3 levels, the platform areas on B4 level, as well as connecting passageways, and includes the Mainland Clearance Area and back office, the waiting hall for departing passengers, and station platforms, connecting passageways and escalators in the WKS, with a total floor area of around 109,000 m², being approximately one-fourth of the total construction floor area of the WKS.

THE APPLICATIONS FOR JUDICIAL REVIEW

30.  In HCAL 1160/2018, Mr Leung Chung Hang originally sought leave to apply for judicial review of “立法會於2018年6月14日通過《廣深港高鐵 (一地兩檢) 條例草案》 (下稱一地兩檢草案) 的表決” (the voting on the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill which led to its passage on 14 June 2018 by the Legislative Council), and joined the President of the Legislative Council as the putative respondent and the Secretary for Justice as a putative interested party.  At the hearing on 31 October 2018, Mr Hectar Pun, SC on behalf of Mr Leung, by reference to a Notice of Amendment dated 30 October 2018, applied to amend the Form 86 by (i) substituting the Ordinance as the decision under challenge, (ii) replacing the Secretary for Justice for the President of the Legislative Council as the putative respondent, and (iii) adopting the grounds of review as set out in paragraphs 31 and 32 of his Skeleton Argument dated 22 October 2018 as the grounds in support of the application for judicial review.  As I understand it, subject to the question of costs, (i) the President of the Legislative Council does not object to the proposed amendments, and (ii) the Secretary for Justice does not object to the proposed amendments save paragraph (6) of the Notice of Amendment.

31.  In HCAL 1164/2018, Mr Leung Kwok Hung seeks leave to apply for judicial review of the Ordinance, and joins the Secretary for Transport and Housing as the putative respondent.

32.  In HCAL 1165/2018, Mr Kwok Cheuk Kin originally sought leave to apply for judicial review of (i) the Chief Executive’s proposal to establish the Mainland Port Area within Hong Kong to implement the Co-Location Arrangement, and (ii) the Ordinance (together with its subsidiary legislation), and joined the Chief Executive as the putative respondent.  By his draft Amended Form 86 dated 22 October 2018, Mr Kwok now confines his challenge to the Ordinance, and joins the Secretary for Justice as the putative respondent and the Secretary for Transport and Housing as a putative interested party.  Again, subject to the question of costs, the Chief Executive and the Secretary for Transport and Housing do not object to the proposed amendments.

33.  In HCAL 1171/2018, Mr Ku Chun Hin Zlato originally sought leave to apply for judicial review of the Bill and the Ordinance, and joined the Secretary for Justice as the putative respondent and the Secretary for Transport and Housing as a putative interested party.  By his draft Amended Form 86 dated 16 July 2018, Mr Ku confined his challenge to the Ordinance, and joined both the Secretary for Justice and the Secretary for Transport and Housing as the putative respondents.  At the hearing on 30 October 2018, the court granted leave to Mr Ku to withdraw his application for leave to apply for judicial review.

34.  In HCAL 1178/2018, Mr Lui Chi Hang Hendrick seeks leave to apply for judicial review of (i) the Ordinance, (ii) the NPCSC Decision, and (iii) the Decision of the Chief Executive to sign the Co-operation Arrangement (“the CE Decision”), and joins the Secretary for Justice and the Chief Executive as the putative respondents.

THE PARTIES’ RESPECTIVE ARGUMENTS

35.  On behalf of Mr Lui, the Applicant in HCAL 1178/2018, Mr Martin Lee, SC submits that the Ordinance is inconsistent with the Basic Law in the following aspects:-

(1) The exclusion of all the laws of Hong Kong (except for the reserved matters) in the Mainland Port Area and its substitution by Mainland laws, and the exclusion of the jurisdiction of the Hong Kong courts and its substitution by the Mainland courts, and indeed the exclusion of the “separate system” of Hong Kong established by the Basic Law from the Mainland Port Area and its substitution by the Mainland system, is in violation of Articles 18 and 19.

(2) The wholesale application of the laws of the Mainland to, and the complete disapplication of all the laws of Hong Kong (including the Basic Law) from, the Mainland Port Area, and the exercise of jurisdiction by the Mainland (including jurisdiction of the courts) to the exclusion of the HKSAR (including the jurisdiction of the Hong Kong courts) over the Mainland Port Area violates the mandating provisions –

(a) on the exercise of executive powers of and in Hong Kong by the Hong Kong Government under the Basic Law, in particular Articles 16, 22, 48 and 59;

(b) on the exercise of legislative powers of and in Hong Kong by the Legislative Council under the Basic Law, in particular Articles 8, 17, 18 and 66;

(c) on the exercise of judicial powers of and in Hong Kong by the Hong Kong courts under the Basic Law, in particular Articles 19, 80, 82, 84 and 87.

36.  On behalf of Mr Leung Chung Hang and Mr Leung Kwok Hung, the Applicants in HCAL 1160/2018 and HCAL 1164/2018 respectively, Mr Pun submits that Section 6 is:-

(1) inconsistent with Article 18(1) read in conjunction with Article 2 in that it purports to dis-apply Hong Kong laws in respect of non-reserved matters from the Mainland Port Area; and

(2) inconsistent with Article 18(2) in that it purports to apply in respect of non-reserved matters in the Mainland Port Area national laws which are not listed in Annex III to the Basic Law.

37.  Mr Pun has also raised an alternative argument in paragraph (6) of the Notice of Amendment dated 30 October 2018 (on page 2 thereof), as follows:-

“alternatively, if section 6 of the Co-location Ordinance is not inconsistent with Article 18 (read in conjunction with Article 2 of the Basic Law (which is denied), section 3 of the Co-location Ordinance is unconstitutional in that it purports to require the Hong Kong authorities (including Hong Kong courts) to exercise jurisdiction in respect of the ‘reserved matters’ in the Mainland Port Area which is an area lying outside Hong Kong (and lying within the Mainland), which is not authorized by the Basic Law”.

38.  On behalf of Mr Kwok, the Applicant in HCAL 1165/2018, Mr Philip Dykes, SC adopts the submissions of Mr Lee and Mr Pun in relation to (i) the unconstitutional application of national laws by the Ordinance in Hong Kong, and (ii) the unconstitutional ouster of the jurisdiction of the Hong Kong courts, and further submits, by reference to the “Basic Structure Doctrine”, that:-

(1) The non-application of national laws in Hong Kong (save and except via Annex III to the Basic Law), and the maintenance of original jurisdiction of the judiciary and the power of final adjudication in Hong Kong, as manifested via various articles in the Basic Law, are its basic features and thus inviolable.

(2) Although the Basic Law contemplates the possibility of amendment of some of its provisions, by Article 159(3) it recognizes that some of its provisions constitute a core of basic principles and are beyond the reach of the amendment power.

(3) The designation of the Mainland Port Area in the WKS, by its application of national laws and ouster of the Hong Kong courts’ jurisdiction inside the area, is incompatible with the basic and unamendable features of the Basic Law.

39.  On behalf of the Government, Mr Benjamin Yu, SC submits that the Ordinance is consistent with the Basic Law.  Mr Yu’s argument is summarized in paragraph 5 of his Skeleton Submissions dated 25 October 2018, which I shall quote in full:-

“(1) The establishment of a port at WKS, and the establishment and application of immigration and clearance controls for entering and exiting the HKSAR, is well within and indeed constitutes a significant exercise of the high degree of autonomy guaranteed to the HKSAR. It is plainly consistent with the principle of ‘one country two systems’. Hong Kong residents or non-residents enjoy the same rights and freedoms before and after the enactment and coming into effect of the Ordinance. The only difference is that instead of having to travel to the border to undergo immigration and custom clearance, this can be done in the city in West Kowloon. Contrary to what is submitted by Lui (§53), the co-location cannot possibly be said to violate the PRC ‘basic policies regarding Hong Kong’.

(2) Boundary (territorial or geographical) and legal jurisdiction are two distinct concepts which do not always coincide. To take a quick example (with others discussed below), even though they may be physically within Hong Kong’s overall geographical boundaries, persons on the ‘air side’ of the Hong Kong International Airport, the Hong Kong-Macau Ferry Terminal and the China Ferry Terminal are in law regarded as not within the HKSAR for immigration and clearance purposes.

(3) The delineation of jurisdiction for port and immigration processing purposes may be achieved by the legislative method of a deeming provision. This is a well-established general legal technique.

(4) In the instant case, it is not unconstitutional for LegCo to enact deeming provisions in the nature of sections 5 & 6 of the Ordinance. The matter essentially turns on whether, firstly, as a matter of proper interpretation, the Basic Law intended to prohibit any and all arrangements of this kind. And even if the Basic Law is engaged, the question is whether the specific deeming arrangements in the present case are constitutionally valid, having regard to their aim and consequences considered against the prevailing context and circumstances of the XRL scheme – essentially a form of proportionality assessment.

(5) Viewed purposively in its proper historical and constitutional context, there is nothing in the Basic Law that makes it unconstitutional for the HKSAR Government to delineate where a person is to be treated as within or outside of the HKSAR for the purpose of establishing a port and setting up and applying immigration and clearance controls for the port area, and for this purpose to deem that a person is outside of the HKSAR even though he/she may be physically within the HKSAR’s general boundaries.

(6) As to the specific deeming arrangement under sections 5 & 6 of the Ordinance, these are plainly directed at and rationally connected to the legitimate and important aim of enhancing Hong Kong’s socio-economic development and standing. Their jurisdictional effect is well within the broad margin of judgment that ought to be accorded to the legislature and the HKSAR Government in respect of major infrastructure and socio-economic policy initiatives. This bears in mind inter alia that a person who enters the MPA plainly intends to leave Hong Kong and enter the Mainland in the exercise of his/her freedom of travel, and hence should and will accordingly be subject to Mainland law of his/her own volition in any event.

(7) Further, on a contextual and purposive construction, BL 18 and BL 19 are not engaged as they do not prohibit the establishment of a port area within the HKSAR.

(8) The NPCSC Decision has unequivocally confirmed that the arrangement is consistent with the Basic Law. For the reasons set out in Section E below, the present arrangement is at the interface of ‘one country two systems’, and as such in inextricable part concerns the Mainland system, under which the NPCSC Decision undoubtedly has binding effect.

(9) The necessary consequence of the Ordinance deeming the MPA as lying outside of the HKSAR but within the Mainland is that, with the exception of the Ordinance itself, Mainland law (not HKSAR law) generally applies within it. Accordingly, once the validity of the deeming mechanism is recognized, the necessary effect of its operation is that (save in respect of ‘reserve matters’: see below), Mainland laws will apply and HKSAR law is simply inapplicable within the MPA. There can then be no question of Hong Kong fundamental rights (such as those in Chapter III of the Basic Law or the Hong Kong Bill of Rights (‘BOR’)) being engaged let alone unlawfully infringed within the MPA, which by definition is for relevant legal purposes not part of the HKSAR.

(10) Likewise, once the general constitutionality of the deeming mechanism is recognised and it takes its intended effect, the Ordinance cannot be understood as restricting or curtailing the HKSAR’s executive, legislative and judicial powers: those powers do not apply for all relevant (non-reserved) legal purposes in the MPA. In any event, the miscellaneous constitutional provisions cited by the Applicants under this head are not, properly analysed, engaged.”

THE BASIC LAW

40.  The HKSAR was established pursuant to Article 31 of the PRC Constitution, which states as follows:-

“The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions.”

41.  Pursuant to this article of the PRC Constitution, the Basic Law of the HKSAR was enacted by the National People’s Congress to prescribe the system to be instituted in the HKSAR. The following provisions of the Basic Law have been referred to by the parties and are relevant for the purpose of the present discussion:-

(1)     Preamble:-

“Upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the People’s Republic of China has decided that upon China’s resumption of the exercise of sovereignty over Hong Kong, a Hong Kong Special Administrative Region will be established in accordance with the provisions of Article 31 of the Constitution of the People’s Republic China, and that under the principle of ‘one country, two systems’, the socialist system and policies will not be practised in Hong Kong. The basic policies of the People’s Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British Joint Declaration.

In accordance with the Constitution of the People’s Republic of China, the National People’s Congress hereby enacts the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, prescribing the systems to be practised in the Hong Kong Special Administrative Region, in order to ensure the implementation of the basic policies of the People’s Republic of China regarding Hong Kong.”

(2)     Chapter I (General Principles):-

Article 2: “The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.”

Article 5: “The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.”

Article 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”

Article 11(1): “In accordance with Article 31 of the Constitution of the People’s Republic of China, the systems and policies practised in the Hong Kong Special Administrative Region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law.”

Article 11(2): “No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.”

(3)     Chapter II (Relationship between the Central Authorities and the HKSAR):-

Article 12: “The Hong Kong Special Administrative Region shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.”

Article 16: “The Hong Kong Special Administrative Region shall be vested with executive power. It shall, on its own, conduct the administrative affairs of the Region in accordance with the relevant provisions of this Law.”

Article 17(1): “The Hong Kong Special Administrative Region shall be vested with legislative power.”

Article 17(2): “Laws enacted by the legislature of the Hong Kong Special Administrative Region must be reported to the Standing Committee of the National People’s Congress for the record. The reporting for record shall not affect the entry into force of such laws.”

Article 17(3): “If the Standing Committee of the National People’s Congress, after consulting the Committee for the Basic Law of the Hong Kong Special Administrative Region under it, considers that any law enacted by the legislature of the Region is not in conformity with the provisions of this Law regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the Region, the Standing Committee may return the law in question but shall not amend it. Any law returned by the Standing Committee of the National People’s Congress shall immediately be invalidated. This invalidation shall not have retroactive effect, unless otherwise provided for in the laws of the Region.”

Article 18(1): “The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.”

Article 18(2): “National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.”

Article 18(3): “The Standing Committee of the National People’s Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the Hong Kong Special Administrative Region and the government of the Region. Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.”

Article 19(1): “The Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication.”

Article 19(2): “The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.”

Article 22(1): “No department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.”

Article 22(3): “All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region.”

(4)     Chapter IV (Political Structure):-

Article 48: “The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions: (2) [t]o be responsible for the implementation of this Law and other laws which, in accordance with this Law, apply in the Hong Kong Special Administrative Region.”

Article 59: “The Government of the Hong Kong Special Administrative Region shall be the executive authorities of the Region.”

Article 66: “The Legislative Council of the Hong Kong Special Administrative Region shall be the legislature of the Region.”

Article 80: “The courts of the Hong Kong Special Administrative Region at all levels shall be the judiciary of the Region, exercising the judicial power of the Region.”

Article 82: “The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region, which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal.”

Article 84: “The courts of the Hong Kong Special Administrative Region shall adjudicate cases in accordance with the laws applicable in the Region as prescribed in Article 18 of this Law and may refer to precedents of other common law jurisdictions.”

Article 87(1): “In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.”

(5)     Chapter V (Economy):-

Article 118: “The Government of the Hong Kong Special Administrative Region shall provide an economic and legal environment for encouraging investments, technological progress and the development of new industries.”

Article 119: “The Government of the Hong Kong Special Administrative Region shall formulate appropriate policies to promote and co-ordinate the development of various trades such as manufacturing, commerce, tourism, real estate, transport, public utilities, services, agriculture and fisheries, and pay regard to the protection of the environment.”

(7)     Chapter VII (External Affairs):-

Article 154(1): “The Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.”

(8)     Chapter VIII (Interpretation and Amendment of the Basic Law):-

Article 158(1): “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.”

Article 158(2): “The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.”

Article 158(3): “The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People’s Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.”

Article 159(1): “The power of amendment of this Law shall be vested in the National People’s Congress.”

Article 159(4): “No amendment to this Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong.”

42.  Three points are of note at this juncture. First, Article 18(1), which sets out the laws in force in Hong Kong, does not refer to the PRC Constitution, and Article 84 provides that the Hong Kong courts shall adjudicate cases in accordance with the laws applicable in Hong Kong as prescribed in Article 18.  Based on these provisions, Mr Lee submits that while the PRC Constitution is undoubtedly applicable to Hong Kong, when it comes to the laws to be applied by the Hong Kong courts in the adjudication of cases, the PRC Constitution should be excluded.  In my view, Mr Lee is correct to the extent that the PRC Constitution is not part of the laws which the Hong Kong courts can directly apply in the adjudication of cases.  It does not follow, however, that the PRC Constitution is necessarily irrelevant or should be ignored by the Hong Kong courts when adjudicating cases.  For example, as pointed out by Mr Yu, various concepts appearing in the Basic Law (eg the NPC, NPCSC, State Council, national flat, national emblem, etc) can only be properly understood by reference to the PRC Constitution.  Also, it is well established that the NPCSC’s “free-standing” power of interpretation of the Basic Law under Article 67(4) of the PRC Constitution referred to in Article 158(1), and the exercise of such power, is respected and accepted by the Hong Kong courts.  There can also be other circumstances in which the PRC Constitution may become relevant to legal proceedings in Hong Kong, as this case will illustrate.

43.  Second, Article 18(2) expressly provides that national laws shall not be applied in Hong Kong except for those listed in Annex III to the Basic Law.  Originally, there were listed in that annex 6 items of national laws.  Over the years, some items have been added to, and a couple have been deleted from, Annex III.  Overall, Annex III is fairly limited in scope in so far as the application of national laws in Hong Kong is concerned.

44.  Third, Article 159(4) provides that no amendment of the Basic Law shall be made which contravenes the “established basic polices” of the PRC regarding Hong Kong.  Those established basic policies are referred to in the Preamble to the Basic Law as having been “elaborated by the Chinese Government in the Sino-British Joint Declaration”.  In the Sino-British Joint Declaration, the basic policies of the PRC regarding Hong Kong are set out in Article 3 thereof, and further elaborated in Annex I thereto.  Of relevant to the present discussion are the following articles of the said Annex I:-

Article 1(2): “The Hong Kong Special Administrative Region shall be directly under the authority of the Central People’s Government of the People’s Republic of China and shall enjoy a high degree of autonomy. Except for foreign and defence affairs which are the responsibilities of the Central People’s Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication.”

Article 2(1): “After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature.”

Article 2(3): “The laws of the Hong Kong Special Administrative Region shall be the Basic Law, and the laws previously in force in Hong Kong and laws enacted by the Hong Kong Special Administrative Region legislature as above.”

Article 3(2): “Judicial power in the Hong Kong Special Administrative Region shall be vested in the courts of the Hong Kong Special Administrative Region. The courts shall exercise judicial power independently and free from any interference… The courts shall decide cases in accordance with the laws of the Hong Kong Special Administrative Region and may refer to precedents in other common law jurisdictions”.

APPLICABLE PRINCIPLES FOR INTERPRETATION OF THE BASIC LAW

45.  The proper approach to the interpretation of the Basic Law is well settled.  The following principles are relevant in the present case.

46.  First, the courts in Hong Kong are authorized to interpret the Basic Law in adjudicating cases subject to the limit on the courts’ jurisdiction imposed by Article 158(3) in respect of the excluded provisions and subject to being bound by any interpretation by the NPCSC under Article 158 (see Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, at 222A-C).

47.  Second, the Hong Kong courts are bound by any relevant interpretation of the Basic Law by the NPCSC, regardless of whether the provision in question falls within or outside the excluded provisions referred to in Article 158 (3).  In Chong Fung Yuen, supra, at 222F-223D, Li CJ (giving the judgment on behalf of the Court of Final Appeal) stated as follows:-

“However, where the Standing Committee has made an interpretation of the Basic Law pursuant to its power under Article 67(4) of the Chinese Constitution and art. 158 of the Basic Law, the courts in Hong Kong are under a duty to follow it. The Court so held in Lau Kong Yung where the Court stated that the Standing Committee's power of interpretation of the Basic Law under art. 158(1) originating from the Chinese Constitution ‘is in general and unqualified terms’ (at 323B). In particular, that power of the Standing Committee extends to every provision in the Basic Law and is not limited to the excluded provisions referred to in art. 158(3).

Equally, where the Standing Committee makes an interpretation of an excluded provision pursuant to a judicial reference from the Court under art. 158(3), the courts in Hong Kong in applying the provision concerned shall follow the Standing Committee's interpretation, although judgments previously rendered shall not be affected. This is expressly provided for in art. 158(3).

The Standing Committee’s power to interpret the Basic Law is derived from the Chinese Constitution and the Basic Law. In interpreting the Basic Law, the Standing Committee functions under a system which is different from the system in Hong Kong. As has been pointed out, under the Mainland system, legislative interpretation by the Standing Committee can clarify or supplement laws. Where the Standing Committee makes an interpretation of a provision of the Basic Law, whether under art. 158(1) which relates to any provision, or under art. 158(3) which relates to the excluded provisions, the courts in Hong Kong are bound to follow it. Thus, the authority of the Standing Committee to interpret the Basic Law is fully acknowledged and respected in the Region. This is the effect of the Basic Law implementing the ‘one country, two systems’ principle as was held by the Court in Lau Kong Yung. Both systems being within one country, the Standing Committee’s interpretation made in conformity with art. 158 under a different system is binding in and part of the system in the Region.”

48.  Third, the Hong Kong courts apply the common law approach in the interpretation of the Basic Law.  In Chong Fung Yuen, supra, at 221F-222F, Li CJ further stated as follows:-

“The position of the Director representing the Government is very clear. It is that this Court, like the lower courts, is bound to apply the common law as developed in Hong Kong in interpreting the Basic Law and this is consistent with the principle of ‘one country, two systems’ enshrined therein. The respondent adopts the same position.

The Director has not suggested that the courts in Hong Kong should apply the principles in the Mainland system for interpreting the Basic Law. That system is different from the system in Hong Kong based on the common law. Under it, legislative interpretation by the Standing Committee can clarify or supplement laws…

… The common position of the parties that the courts in Hong Kong are bound to apply the common law in exercising their power of interpretation, as so authorized, accords with the Basic Law which provides for the continuation of the common law in the HKSAR. See arts 8 and 18(1). The Basic Law also provides that the courts in the HKSAR shall adjudicate cases in accordance with laws applicable in the Region which include the common law, and may refer to precedents of other common law jurisdictions. See arts 19(1), 84 and 87(1). In essence, the Basic Law provides for a separate legal system in the HKSAR based on the common law. National laws shall not be applied in the HKSAR except for those listed in Annex III which shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by the Basic Law. See art. 18(3).”

49.  Fourth, under the common law approach to the interpretation of the Basic Law, the courts’ role is to construe the language used in the text of the Basic Law in order to ascertain the legislative intent as expressed in the language, and this exercise requires the courts to identify the meaning borne by the language when considered in the light of its context and purpose.  In Chong Fung Yuen, supra, at 223H-224B, Li CJ stated as follows:-

“The courts’ role under the common law in interpreting the Basic Law is to construe the language used in the text of the instrument in order to ascertain the legislative intent as expressed in the language. Their task is not to ascertain the intent of the lawmaker on its own. Their duty is to ascertain what was meant by the language used and to give effect to the legislative intent as expressed in the language. It is the text of the enactment which is the law and it is regarded as important both that the law should be certain and that it should be ascertainable by the citizen.

The courts do not look at the language of the article in question in isolation. The language is considered in the light of its context and purpose. See Ng Ka Ling at 28-29. The exercise of interpretation requires the courts to identify the meaning borne by the language when considered in the light of its context and purpose. This is an objective exercise. Whilst the courts must avoid a literal, technical, narrow or rigid approach, they cannot give the language a meaning which the language cannot bear.”

50.  Fifth, the Basic Law “states general principles and expresses purposes without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise and, in resolving them, the courts are bound to give effect to the principles and purposes declared in, and to be ascertained from, the constitution and relevant extrinsic materials. So, in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument” (see Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, at paragraph 74; see also Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, at paragraph 162 per Andrew Cheung J (as he then was)).

51.  Sixth, the Basic Law should be treated as a “living instrument” intended to meet changing needs and circumstances (see Ng Ka Ling, supra, at 28D; W v Registrar of Marriage (2013) 16 HKCFAR 112, at paragraph 84 per Ma CJ and Ribeiro PJ), and being “capable of growth and development over time to meet new social, political and historical realties since the time of its enactment…  Thus in construing the Basic Law, the court gives due regard to its historical context but is not unduly constricted by it.  The court always treats the Basic Law as a living norm, rooted in the past but intended to be responsive to contemporaneous needs and circumstances, and gives it an interpretation that truly reflects firmly held modern views in the current social and legal landscape” (see Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association [2016] 5 HKLRD 542, at paragraph 60 per Poon JA, with whom Cheung CJHC and Barma JA agreed).

52.  Seventh:-

(1) “pre-enactment” extrinsic materials which throw light on the context or purpose of the Basic Law and its particular provisions may generally be used as an aid to the interpretation of the Basic Law;

(2) extrinsic materials, whatever their nature and whether pre or post-enactment, cannot affect interpretation where the court concludes that the meaning of the language, when construed in the light of its context and purpose ascertained with the benefit of internal aids and appropriate extrinsic materials, is clear (ie free from ambiguity); and

(3) the court should adopt a “cautious” approach when being asked to consider extrinsic materials (whether pre or post-enactment), other than pre-enactment materials relating to context and purpose, for the purpose of interpretation of the Basic Law.

See Chong Fung Yuen, supra, at 222E-223E; Vallejos v Commissioner of Registration [2012] 2 HKC 185, at paragraphs 25 and 26 per Cheung CJHC (with whom Tang VP and Stock VP agreed).

THE LEGAL STATUS OF THE NPCSC DECISION

(i)     Under PRC laws

53.  As a matter of PRC laws, the legal status of the NPCSC Decision is, in my view, clear.  The expert evidence of Professor Wang Lei of Peking University’s Faculty of Law, which I accept, is to the following effect:-

(1) Article 67(1) of the PRC Constitution provides that the NPCSC has the power to supervise the implementation of the Constitution, and such power extends to Article 31 of the PRC Constitution which implements the “one country, two systems” principle under which the HKSAR was established.  Accordingly, under the PRC Constitution, the NPCSC has the power to decide whether a particular matter is compliant with the “one country, two systems” principle and the Basic Law (paragraph 3.1 of Professor Wang’s 1^st Report).

(2) The NPCSC also has the power, under the Basic Law (by virtue of, or having regard to, Articles 2, 17(2) and (3), and 158(1)), to supervise its implementation and decide whether an arrangement is compliant with it (paragraph 4 of Professor Wang’s 1^st Report).

(3) The NPCSC may exercise such supervisory power by means of issuing “decisions”, and the NPCSC Decision is one such “decision” (paragraphs 3.15 to 3.2 of Professor Wang’s 1^st Report).

(4) As such, the NPCSC Decision, which addresses specifically the question of the Co-operation Arrangement’s consistency with the Basic Law, has legal effect and is binding on governmental authorities in the Mainland (paragraphs 5 to 7 of Professor Wang’s 1^st Report).

(5) The NPCSC Decision is also binding on the HKSAR, including the Hong Kong courts, because (i) the NPCSC exercises the will of the State, (ii) the NPCSC has the power to supervise the implementation of the PRC Constitution, and (iii) the NPCSC is part of the sovereign body which authorized the establishment of the HKSAR and its governmental authorities (paragraph 9 of Professor Wang’s 1^st Report).

54.  In his 1^st Report, Professor Fu Hualing, Mr Lui’s expert on PRC laws, opines that:-

(1) The NPCSC may use the form of “decisions” to exercise its supervisory power (paragraph 20 of Professor Fu’s 1^st Report).

(2) A decision made by the NPCSC provides authoritative legal standards (paragraph 26 of Professor Fu’s 1^st Report).

(3) Under the PRC Constitution, the NPCSC has the exclusive power to decide whether an arrangement is constitutional and legal, and a decision made by the NPCSC is itself proof of the constitutionality of the arrangement in question (paragraph 53 of Professor Fu’s 1^st Report).

(4) The NPCSC Decision concerns the relationship between the Central Authorities and the HKSAR, and is in “substance”, although not in “form”, an interpretation of the Basic Law under Article 158 (paragraphs 63 and 64 of Professor Fu’s 1^st Report).

(5) The NPCSC Decision also has the function of an interpretation of the Basic Law (paragraph 68 of Professor Fu’s 1^st Report).

55.  There are two particular matters concerning the expert evidence on PRC laws debated at the hearing that I should briefly deal with.

56.  First, Professor Fu opines that (i) it is not appropriate for the NPCSC to resolve the question of the legality of the Co-location Arrangement by issuing a decision; and (ii) instead, the NPCSC should deal with the matter by issuing an interpretation pursuant to Article 158 of the Basic Law (paragraph 68 of Professor Fu’s 1^st Report). In my view, what is important is not whether it is appropriate (or inappropriate), or whether there are some other alternative methods, for the NPCSC to deal with the matter by issuing a decision, but whether the NPCSC has legal power to do so.  As earlier mentioned, I accept Professor Wang’s evidence on this issue and consider that the NPCSC has such legal power under PRC laws.

57.  Second, in his 2^nd Report:-

(1) At paragraph 1, Professor Fu opines that although the NPC and NPCSC have the power to supervise the implementation of the Basic Law, because of the “exclusivity” of the Basic Law, they cannot make norms or regulations which are legally binding on the HKSAR outside the framework of the Basic Law (我認為基本法具有排他性，全國人大及其常務委員會有權通過基本法的機制監督基本法的實施，但不能在基本法的框架之外制定對香港有法律約束力的規定).

(2) At paragraph 28, Professor Fu explains the basis for this view, namely, that when the NPC enacted the Basic Law it voluntary gave up such power in order to implement the concept of special administrative region pursuant to Article 31 of the PRC Constitution (主張人大制度不在香港實施並不是否定人大至上的憲法原則和全國人大最高權力機構的地位。而只是強調全國人大在制定基本法和決定在香港實施一國兩制時，全國人大自願選擇以自我限制的方式，為香港制定一種有別於人大制度的憲制，以實踐第31 條中提及的特別行政區之概念).

(3) At paragraph 32, Professor Fu further opines that, in relation to matters falling within the limits of the autonomy of the HKSAR, the general, free standing, power of the NPCSC to interpret the Basic Law referred to in Article 158(1) is limited or controlled by the provisions of Article 158(2) and (3), which amount to an “amendment” of Article 67(4) of the PRC Constitution (《憲法》與《基本法》同時規定了人大常委會的法律解釋權。但《憲法》規定的立法解釋和基本法規定的立法解釋之間有重要區別。《憲法》規定的立法解釋權是全面的、無限制的。而《基本法》確立的解釋權在人大常委會和香港終審法院之間有功能上的合作分工。《基本法》第158 條在確立人大常委會的全面解釋權之後，又對《基本法》的解釋權，按照自治範圍內條款和自治法範圍外條款的分類，進行了功能上的劃分。該條第二和第三款對香港法院的授權是有其獨特的憲法意義的，並不因為158 條第1 款的普遍解釋權而變得無關緊要。這種對自治範圍內的條文的解釋而制定制度設計是對158 條第1 款的制度約束，也是《憲法》第67 條第4 款的修訂).

(4) At paragraph 37, Professor Fu reiterates that because of the “exclusivity” of the Basic Law, the NPC/NPCSC cannot make norms or regulations which are legally binding on the HKSAR outside the framework of the Basic Law (綜上所述，基本法具有排他性，全國人大及其常務委員會不能在基本法的框架之外制定對香港有法律約束力的規定).

58.  I am unable to accept these views of Professor Fu under PRC laws, and prefer the views of Professor Wang referred to in paragraph 53 above.  In coming to this conclusion, I consider it significant that the Court of Final Appeal has, more than once, confirmed that the power of the NPCSC to interpret the Basic Law under Article 67(4) of the PRC Constitution referred to in Article 158(1) is free standing and not restricted or qualified in any way by Article 158(2) and (3) (see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 322D-324E; Chong Fung Yuen, supra, at 222F-223D; and Yau Wai Ching v Chief Executive of HKSAR (2017) 20 HKCFAR 390, at paragraph 35).  Professor Fu’s premise for his views, namely, that the NPC/NPCSC have voluntarily given up their power, or such power has been excluded or ousted by the Basic Law, is, I consider, incorrect.

(ii)     Under Hong Kong laws

59.  In so far as Hong Kong laws are concerned, Mr Lee argues that the Basic Law is an “entrenched” and “self-contained” constitutional document, and that the NPC and NPCSC can only act in relation to Hong Kong through the Basic Law and not otherwise through the PRC Constitution.  He further argues that the NPCSC Decision is not made within the Basic Law and therefore the Hong Kong courts cannot rely on it to adjudicate on the question of whether the Ordinance and the CE Decision are inconsistent with the Basic Law.  Mr Dykes adopts the submissions made by Mr Lee as regards the nature and effect of the NPCSC Decision.  Mr Pun argues similarly that the NPCSC Decision does not form part of Hong Kong laws, and therefore the Hong Kong courts are not bound by the NPCSC Decision.

60.  It has not been argued by Mr Yu on behalf of the Hong Kong Government that the NPCSC Decision is directly applicable as laws in Hong Kong.  He argues, however, that the NPCSC Decision is relevant in the present case in 3 ways and cannot be put aside or ignored by this court:-

(1) The NPCSC has the ultimate power of authoritative interpretation of the Basic Law, and the NPCSC Decision represents the likely view that the NPCSC would give if it were to be called upon to give an interpretation concerning the consistency of the Ordinance with the Basic Law in which case such interpretation would be binding on the Hong Kong courts.  Accordingly, it would not be sensible for the Court of First Instance to ignore the NPCSC Decision even if it is not strictly binding, just as the English courts would take into account relevant and persuasive jurisprudence of the European Court of Justice when dealing with a domestic application involving Community law (see R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603).  The NPCSC Decision ought to be regarded as being of great persuasive value and accorded weight and respect.

(2) Professor Fu confirms that the NPCSC Decision is, “in substance”, an interpretation of the relevant provisions of the Basic Law, even though it did not go through the consultative process under Article 158(4), and has the “effect” of an interpretation.  Hence, the NPCSC Decision is binding.

(3) The Basic Law is a national law of the PRC. When one is dealing with the question of the consistency of the Ordinance with the Basic Law, one is in the interface of the “one country, two systems” and is, in particular, concerned with the “one country” part (see Yau Wai Ching, supra, at paragraph 35; Chief Executive of HKSAR v President of Legislative Council [2017] 1 HKLRD 460, at paragraph 56; and Professor Fu’s 1^st Report, at paragraph 63).  Just as in the case where the court has to determine an issue which is governed by foreign law, the court will determine what the foreign law is and apply the foreign law as found, when the court is faced with the issue of the consistency of the Ordinance with the Basic Law, the court should consider how it would be determined under PRC laws.  Since the NPCSC Decision would be regarded as determinative of the issue under PRC laws, it should also govern the position when that issue falls to be determined by the courts in Hong Kong.

61.  As will be seen below, it is not necessary for me, for the purpose of resolving the central question of whether the Ordinance is inconsistent with the Basic Law, to go outside the established approach laid down by the Court of Final Appeal for dealing with such type of questions.  It would not be appropriate for me, sitting at first instance, to determine questions concerning the status and legal effect of the NPCSC Decision under Hong Kong laws which may have far reaching implications but are not strictly necessary for my decision.  In my view, whatever may be said about the precise status and effect of the NPCSC Decision under Hong Kong laws, it must at least rank as “post-enactment materials” which the Court of Final Appeal in Chong Fung Yuen did not exclude as being potentially admissible or relevant for the purpose of construing the Basic Law where its meaning is not free from ambiguity.  On the other hand, the decision of the Court of Appeal in Vallejos v Commissioner of Registration [2012] 2 HKC 185, at paragraphs 25 and 26, gives recognition that post-enactment materials may be considered for construing the Basic Law where it is not free from ambiguity, although their use must be approached “cautiously”.

62.  There is one other matter that I should mention. The Hong Kong courts have no power, in my view, to determine whether the NPCSC Decision is invalid under Hong Kong laws (see Leung Lai Kwok Yvonne v The Chief Secretary for Administration, HCAL 31/2015, 22 May 2015, at paragraph 30 per Au J).  As stated by the learned Judge, “the court simply has no jurisdiction to do so”, in that case in relation to the “831 Decision”.  For this reason, Mr Lui’s challenge to the validity of the NPCSC Decision under Hong Kong laws is plainly unsustainable.

THE ORDINANCE IS CONSISTENT WITH THE BASIC LAW

63.  It is not, in my view, necessary to analyse the meaning and effect of all the Articles of the Basic Law referred to and relied upon by the Applicants.  Their major complaints focus on the following articles, namely:-

(1) Article 18(1) - the laws in force in Hong Kong shall be the Basic Law, the laws previously in force in Hong Kong as provided for in Article 8, and the laws enacted by the legislature of Hong Kong;

(2) Article 18(2) - national laws shall not be applied in Hong Kong save those listed in Annex III to the Basic Law;

(3) Article 19(2) - the Hong Kong courts shall have jurisdiction over all cases in Hong Kong except such restrictions as imposed by the legal system and principles previously in force in Hong Kong; and

(4) Article 80 - the Hong Kong courts at all levels shall be the judiciary of Hong Kong exercising the judicial power of the region.

64.  It is not in dispute that the Mainland Port Area falls with the territory of Hong Kong under the “Order of the State Council of the People’s Republic of China No 221” dated 1 July 1997, which was promulgated in accordance with the “Decision of the National People’s Congress on the Establishment of the Hong Kong Special Administrative Region” adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990.

65.  Further, it is clear that Section 6 has, prima facie, the effect of:-

(1) the wholesale application of the laws of the Mainland to, and the complete disapplication of all of the laws of Hong Kong from, the Mainland Port Area save in respect of the reserved matters;

(2) the delineation of jurisdiction by the Mainland (including jurisdiction of the courts of the Mainland) to the exclusion of Hong Kong (including the jurisdiction of the courts of Hong Kong) over the Mainland Port Area save in respect of the reserved matters; and

(3) the disapplication of the Basic Law as well as the Hong Kong Bill of Rights Ordinance from the Mainland Port Area, thereby depriving those in the Mainland Port Area of their fundamental rights enshrined in Chapter III of the Basic Law as well as the Hong Kong Bill of Rights.

66.  It can be argued, with considerable force, that the Ordinance, in particular Section 6 thereof, is inconsistent with the Basic law, including the Articles referred to in paragraph 63 above as well as Chapter III of the Basic Law (relating to “Fundamental Rights and Duties of the Residents”).

67.  On behalf of the Hong Kong Government, Mr Yu has mounted a forceful argument to defend the constitutionality of the Ordinance. I have already set out a summary of Mr Yu’s argument in paragraph 39 above which I shall not repeat here.  The crux of his argument is that neither the establishment of a port for carrying out customs, immigration and quarantine clearance in the heart of the city (instead of at the boundary), nor the delineation of jurisdiction at such port for facilitating customs, immigration and quarantine clearance, is prohibited by the Basic Law.

68.  It is clear that the question of whether the Ordinance is inconsistent with the Basic Law should not be approached in a literal or mechanistic manner.  The proper question to ask, in my view, is whether, upon a fair reading of the Basic Law and having regard to its context and purpose, it is intended that the Co-location Arrangement as embodied in the Ordinance, involving the creation of a port subject to the jurisdiction and laws of the Mainland, is intended to be prohibited or excluded.

69.  To answer this question, it is first necessary to have regard to the context and purpose of the Basic Law, in particular those provisions referred to in paragraph 63 above.  Their purpose is, I believe, clear.  They are there to give effect to the “two systems” part of the “one country, two systems” principle; in other words to maintain or preserve the distinct Hong Kong system which was in force prior to 1 July 1997.  It does not seem to me that the creation of a port within the territory of Hong Kong subject to the jurisdiction and laws of the Mainland for the purposes of customs, immigration and quarantine control at the port, and the delineation of whether a person is to be treated as being within or outside Hong Kong for such purposes, is inconsistent with this purpose of the Basic Law.

70.  Second, it is common ground that the idea or possibility of the Co-location Arrangement was not something that was or could be contemplated at the time of the promulgation of the Basic Law in 1990.  On the other hand, the Basic Law is intended to be in force or have effect for at least 50 years commencing on 1 July 1997.  As has been emphasized by the Hong Kong courts on many occasions in the past, the Basic Law should be treated as being capable of growth and development over time to meet new social, economic and political realties, and construed and applied in a manner which is responsive to contemporaneous needs and circumstances over its entire life.  To read the Basic Law as having the effect of prohibiting the Co-location Arrangement, which has been designed to advance the overall best interests of Hong Kong, would seem to me to involve a failure to recognize the Basic Law as a “living instrument”.

71.  Third, as submitted by Mr Yu, the establishment of the Mainland Port Area and the setting up and application of customs, immigration (for both entry and exit), and quarantine control at that port is itself a manifestation of the exercise of a high degree of autonomy by Hong Kong and the recognition of two distinct and separate systems being practiced in Hong Kong and the Mainland.

72.  Fourth, although mere expediency is not in itself a sufficient reason to justify an arrangement which is otherwise inconsistent with the Basic Law, the fact that an arrangement is beneficial to the overall interests of Hong Kong (which, leaving aside the challenge to its legality or constitutionality, I consider to be the case with the Co-location Arrangement) is, in my view, a relevant consideration which one ought to take into account when determining whether such arrangement is prohibited by the Basic Law.

73.  Overall, I consider that, upon a fair reading of the Basic Law establishing a broad framework for the exercise of a high degree of autonomy by Hong Kong, it is open to the legislature of Hong Kong to enact the Ordinance to provide that the Mainland Port Area in the WKS shall be subject to the Mainland’s jurisdiction and Mainland laws.  In other words, the Ordinance is consistent with the Basic Law.

74.  In any event, if the position is not clear, or free from ambiguity, I consider that the NPCSC Decision ought to be admitted as relevant post-enactment extrinsic materials in aid of the construction of the Basic Law.  Further, I consider that the NPCSC Decision should be regarded as having high persuasive value in the particular circumstances of the present case, because:-

(1) It is the NPCSC’s constitutional duty under PRC laws to supervise to implementation of the PRC Constitution, including the implementation of the Basic Law.  The NPCSC Decision was made by the NPCSC in discharge of this solemn duty.

(2) As accepted by Professor Fu, the NPCSC Decision is in substance (though not in form), and has the function of, an interpretation of the Basic Law.   Being the body with the ultimate power of authoritative interpretation of the Basic Law, it would be acting contrary to common sense not to accord the NPCSC Decision with weight and respect.

(3) As accepted by Mr Lee, the question of the consistency of the Ordinance with the Basic Law is a matter which concerns the relationship between the Central Authorities and the HKSAR, and thus the relevant provisions of the Basic Law required to be construed to answer that question would fall within the category of “excluded provisions” under Article 158(3).  If and when this case reaches the Court of Final Appeal, subject to satisfaction of the “necessity condition” referred to in Ng Ka Ling, supra, at 31A-B, a referral to the NPCSC for interpretation would be required.  Such interpretation, when given, would be binding on the Hong Kong courts.

75.  Both Mr Lee and Mr Pun argue that the court should not take the NPCSC Decision at face value because the NPCSC made that decision without having had the benefit of considering the views of the Basic Law Committee, and it is said that the NPCSC may change its mind after receiving the views of the Basic Law Committee under a formal interpretation in accordance with Article 158(4).  It is clear, however, that the NPCSC Decision was a carefully considered one.  It is, in my view, unrealistic to believe that the NPCSC will or may reach a different conclusion after consultation with the Basic Law Committee.  I consider that I should proceed on the basis of the NPCSC Decision as it currently stands, and use it as an aid to the interpretation of the Basic Law.  Taking into account the NPCSC Decision, I consider that any doubt or ambiguity as regards the consistency of the Ordinance with the Basic Law is cleared in favour of the conclusion that the Ordinance is consistent with the Basic Law, and I so conclude.

76.  I should mention that this conclusion does not mean that the present arrangement of delineating a particular area within the territory of the HKSAR as being subject to the jurisdiction and laws of the Mainland can necessarily be repeated in any area in the HKSAR.  A critical feature of the present case is that the Co-location Arrangement is justified by and limited to the particular circumstances and imperatives arising from the unprecedented port project.  The legality of any arrangement will have to be examined on its own facts and circumstances.  No useful purpose will be served by generalisations.

OTHER MATTERS

77.  There are a few other matters that I should briefly deal with for the sake of completeness.  First, Mr Dykes argues that a legislature cannot makes laws that would alter the basic structure of a constitution; in other words, there are some constitutional principles which cannot be removed, or changed in a fundamental way, by legislation or through an amendment power.  This is said to be based on the “Basic Structure Doctrine” derived from various decisions of the Supreme Court of India which has been applied by the Malaysian and some other Commonwealth courts.  It is not with disrespect that I do not propose to examine the decisions referred to by Mr Dykes in support of the Basic Structure Doctrine, for the Basic Law itself expressly provides that no amendment to it shall contravene the established basic policies of the PRC regarding Hong Kong (see Article 159(4)).  In my view, the Basic Structure Doctrine adds nothing of substance to the consideration of the critical question of whether the Ordinance is inconsistent with the Basic Law.  Once it is concluded, as I have, that the Ordinance is consistent with the Basic Law, there is no question of the basic structure of the Basic Law being amended by the Ordinance.

78.  Second, Mr Pun relies on the judgment of the High Court of Australia in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 for the principle that “it is a breach of constitutional principle for the courts to be told by another body how it should exercise its jurisdiction”, and submits that to allow the NPCSC Decision to dictate the outcome of the present proceedings would constitute an impermissible intrusion into the independent judicial power which Articles 2 and 80 vest exclusively in the Hong Kong courts.  In Chu Kheng Lim, the offending provision in Section 54R of the Migration Act1958 provided that “[a] court is not to order the release from custody of a designated person”, and the majority of the High Court of Australia (Brennan, Deane, Dawson and Gaudron JJ, with Mason CJ, Toohey and McHugh JJ dissenting) considered that it amounted to a derogation from the jurisdiction which the Constitution directly vested in the High Court and constituted an impermissible intrusion into the judicial power which the Constitution vested exclusively in the courts.  In the present case, I do not reach my decision on the basis that the outcome is dictated by the NPCSC Decision.  The principle established in Chu Kheng Lim is therefore not applicable to the present case.  The same comment applies to the decision of the Pricy Council on appeal from the Supreme Court of Ceylon in Don John Francis Douglas Liyanage v The Queen [1967] AC 269 referred to by Mr Dykes.

79.  Third, in the evidence filed by the parties and the submissions of counsel, a number of other possible arrangements regarding Hong Kong and Mainland customs, immigration and quarantine procedures for passengers of the XRL travelling between Hong Kong and the Mainland have been canvassed.  In my view, the discussion in relation to those arrangements are irrelevant to the central question raised in these applications for judicial review, which is whether the Ordinance embodying the Co-location Arrangement is inconsistent with the Basic Law and therefore impermissible as a matter of law, not whether it is possible to devise some alternative or better arrangements in place of the Co-location Arrangement.

80.  Fourth, in the evidence filed on behalf of the Government, it is said that “even assuming the [Ordinance] would have the effect of restricting the jurisdiction of Hong Kong courts under Article 19 of Basic Law (which is denied), such restriction would satisfy the four-step proportionality test” (see paragraph 5 of the Affirmation of Lai Yee Tak Joseph filed on 6 August 2018 in HCAL 1178/2018).  I am not convinced that this is the correct approach to the central question before the court.  The proportionality approach may usefully be deployed to determine whether a governmental measure which purports to restrict some fundamental rights can be justified, but cannot, in my view, be used to answer the more fundamental question of whether the legislature in the HKSAR has power to exclude the application of Hong Kong laws and jurisdiction of the Hong Kong courts over the Mainland Port Area (save in respect of the reserved matters).  The answer to that question depends on the true meaning and effect of the Basic Law.

81.  Fifth, both Mr Lee and Mr Pun argue that the Ordinance has the effect of disapplication of the Basic Law as well as the Hong Kong Bill of Rights Ordinance from the Mainland Port Area, being part of the HKSAR, and therefore deprives those in the Mainland Port Area of the fundamental rights as enshrined in Chapter III of the Basic Law as well as the Hong Kong Bill of Rights.  In my view, the fact that the Ordinance has such effect is relevant to the question of whether, upon the true construction of the Basic Law, the Ordinance is inconsistent with it.  However, once the conclusion is reached that the Ordinance is consistent with the Basic Law, the consequence that the fundamental rights enshrined in the Basic Law and the Hong Kong Bill of Rights Ordinance cannot be relied upon in the Mainland Port Area follows.  I would merely add that Mr Yu’s observations, at paragraphs 5(6) and 55 of his Skeleton Submissions, seem to me to aptly reflect the reality of the situation:-

“… a person who enters the MPA plainly intends to leave Hong Kong and enter the Mainland in the exercise of his/her freedom of travel, and hence should and will accordingly be subject to Mainland law of his/her own volition in any event”; and

“… people who enter the MPA go there with the intention of exiting the HKSAR and travelling to the Mainland. They would inevitably have to go through the same procedures at immigration controls and be subject to the same laws irrespective of which control point they choose to use”.

82.  Sixth, Mr Johnny Mok, SC argues that the President of the Legislative Council should not have been joined as the putative respondent in HCAL 1160/2018 because he was not the decision-maker so far as the passing of the Bill is concerned.  I consider Mr Mok’s argument to be correct.  In any event, this issue has been rendered academic by Mr Pun’s application on behalf of Mr Leung to substitute the Secretary for Justice for the President of the Legislative Council as the putative respondent.

83.  Seventh, in paragraph (6) of the Notice of Amendment of the Form 86 in HCAL 1160/2018 dated 30 October 2018 (on page 2 thereof), Mr Leung seeks to raise an alternative case as follows:-

“alternatively, if section 6 of the Co-location Ordinance is not inconsistent with Article 18 (read in conjunction with Article 2) of the Basic Law (which is denied), section 3 of the Co-location Ordinance is unconstitutional in that it purports to require the Hong Kong authorities (including Hong Kong courts) to exercise jurisdiction in respect of the ‘reserved matters’ in the Mainland Port Area which is an area lying outside Hong Kong (and lying within the Mainland), which is not authorized by the Basic Law”.

84.  In my view, this alternative case is not reasonably arguable, because the deeming of the Mainland Port Area as an area lying outside Hong Kong but within the Mainland under Section 6(1) has no application to the reserved matters.  There is, so far as I can see, nothing unconstitutional in preserving the jurisdiction of the Hong Kong authorities (including the Hong Kong courts) over the Mainland Port Area in respect of the reserved matters.  I will not, therefore, grant leave to Mr Leung to amend his Form 86 to raise this alternative case.

DISPOSITION

85.  I grant leave to (i) Mr Leung to amend his Form 86 in HCAL 1160/2018 in accordance with the Notice of Amendment dated 30 October 2018 save sub-paragraph (6) on page 2 thereof, and in the manner as indicated by Mr Pun referred to in paragraph 30 above as regards the parties to the proceedings, and (ii) Mr Kwok to amend his Form 86 in HCAL 1165/2018 in accordance with the Notice of Amendment dated 22 October 2018.

86.  I also grant leave to the Applicants in HCAL 1160, 1164, 1165 and 1178/2018 to apply for judicial review because the applications are reasonably arguable.  However, on a full consideration, I am of the view that the Ordinance is consistent with the Basic Law, and therefore I dismiss the substantive applications for judicial review.

87.  In relation to HCAL 1160/2018, the President of the Legislative Council has been unnecessary dragged into this litigation. Further, Mr Pun (on behalf of Mr Leung) did not apply to substitute the Secretary for Justice for the President of the Legislative Council as the putative respondent in the application until the second day of the hearing on 31 October 2018.  I consider that Mr Leung ought to pay the costs of the President of the Legislative Council incurred in this application, including all reserved costs (if any), to be taxed if not agreed, and I so order.  Save as aforesaid, in view of the fact that (i) the issue raised in these applications is a matter of great, general or public importance, (ii) the Applicants are not, I am satisfied, motivated by self-interest in bringing these proceedings, and (iii) I have granted leave to apply for judicial review on the basis that the applications are reasonably arguable, I consider the appropriate costs order to make would be no order as to costs in all 5 applications (including the costs of the amendments), and I so order.  This order is an absolute one in relation to HCAL 1160, 1164, 1165 and 1178/2018, and an order nisi in relation to HCAL 1171/2018 because the court has not heard any submissions from Mr Ku on the issue of costs, his attendance on the second day of the hearing having been excused by the court.  For those Applicants who are legally aided, their own costs are to be taxed in accordance with legal aid regulations.

88.  Lastly, it remains for me to thank counsel for their assistance rendered to the court.