YAU WAI CHING v. CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, SECRETARY FOR JUSTICE

FAMV Nos. 7, 8, 9 and 10 of 2017

FAMV No. 7 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 225 OF 2016)

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FAMV No. 8 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 226 OF 2016)

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FAMV No. 9 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 224 OF 2016)

____________________

____________________

FAMV No. 10 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 227 OF 2016)

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REASONS FOR DETERMINATION

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The Appeal Committee:

Introduction

1.  These applications for leave to appeal to the Court of Final Appeal arise out of proceedings concerning the taking of the oath of a Legislative Councillor by the two applicants, Sixtus Leung Chung Hang and Yau Wai Ching (“Leung” and “Yau” respectively), following the general election in September 2016 and the consequences of their purporting to do so.  As will be seen, it was determined by the President of the Legislative Council (“Legco”) that their actions did not constitute a valid taking of the requisite oath and he decided that they should be given a further opportunity to do so.  Before they were able to do so, however, these proceedings were commenced by the then Chief Executive and the Secretary for Justice, the material question being whether in the circumstances Leung and Yau were entitled to re-take their oaths.  The Court of First Instance concluded that they were not and made declarations as to the invalidity of their oaths and of their disqualification from assuming office as members of Legco and acting as such.  That decision was affirmed on appeal and has led to the applications now before us.

2.  These proceedings have received widespread publicity and the circumstances leading to them have provoked strong expressions of opinion and comment amongst many members of the community.  Be that as it may (and the Court’s role is not to enter into matters of political debate), the sole legal issue for the Appeal Committee on these applications has been whether the criteria for the grant of leave to appeal have been satisfied.   As provided by the Court’s Ordinance, such leave will only be granted if the Court is of the opinion that the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision.[1]  It is not enough that an important question is raised, though, since it must also be reasonably arguable that the answer to that question will affect the judgment under appeal.[2]

3.  It was submitted on behalf of the applicants that the proposed appeal does indeed involve various questions which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court. However, having considered the written and oral submissions advanced on behalf of the applicants, we had no doubt that the threshold for leave to appeal is not met and that, accordingly, the applications must be dismissed.  In summary, although the questions touch upon issues of law of general and public importance, there is no reasonably arguable basis for disturbing the judgments under appeal.  At the conclusion of the hearing, we therefore dismissed the applications for leave to appeal indicating that we would provide our reasons for doing so in writing in due course, which we now do.

Background leading to the proceedings below

4.  Article 104 of the Basic Law of the Hong Kong Special Administrative Region (“BL104”) provides:

“When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.”

5.  The Oaths and Declarations Ordinance (Cap.11) (“the Ordinance”) stipulates, in section 16, that, among other oaths, that referred to in the Ordinance as the Legislative Council Oath (“the Legco oath”) shall be in the form set out in Schedule 2 and the oath in question is at Part IV of Schedule 2 in the following terms:

“I swear that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity.”

6.  Materially, section 19 of the Ordinance provides that:

“A member of the Legislative Council shall, as soon as possible after the commencement of his term of office, take the Legislative Council Oath which –

(a) if taken at the first sitting of the session of the Legislative Council immediately after a general election of all members of the Council and before the election of the President of the Council, shall be administered by the Clerk to the Council;

(b) if taken at any other sitting of the Council, shall be administered by the President of the Council or any member acting in his place.”

7.  Furthermore, section 21 of the Ordinance provides for the consequence of non-compliance in the following terms:

“Any person who declines or neglects to take an oath duly requested which he is required to take by this Part, shall –

(a) if he has already entered on his office, vacate it, and

(b) if he has not entered on his office, be disqualified from entering on it.”

8.  Leung and Yau were respectively elected to be members of Legco in the general election held in September 2016.  They were duly asked to take the Legco oath before the Clerk to Legco at its meeting on 12 October 2016. Instead of taking the Legco oath in the form stipulated in Schedule 2 to the Ordinance, each of them made a number of material alterations to it and accompanied their words by various actions, described by Au J in paragraph [5] of his judgment in the Court of First Instance as follows:

“(1) Each of them used the term ‘Hong Kong nation’ right at the outset of oath-taking:

(a) Mr Leung declared in open public that he shall keep guard over the interest of the Hong Kong nation;

(b) Ms Yau declared in open public that she will be faithful and bear true allegiance to the Hong Kong nation.

(2) The Clerk interrupted each of them and said he could not administer their respective oath-taking as that was not taken in compliance with the LegCo Oath.

(3) Each of them then purported to take the oath again.

(4) In doing so, each of them mis-pronounced the word ‘China’ consecutively for three times, as ‘Geen-na’ or ‘Sheen-na’ (‘支那’).

(5) Further, Ms Yau mis-pronounced ‘People’s Republic of China’ as ‘the People’s Refucking of Sheen-na’ consecutively for three times.

(6) Each of them also intentionally unfolded and displayed a blue banner bearing the words ‘HONG KONG IS NOT CHINA’.

(7) Mr Leung adopted a contrast in the tone of his voice between his initial words before the interjection by the Clerk and his subsequent words after such interjection (which shows a dismissive and not serious attitude). He further crossed the index and middle fingers of his right hand over the Bible in seeking to take the oath again after the initial interjection by the Clerk.

(8)       Ms Yau emphasized ‘Hong Kong’ with a distinctly loud tone of voice but adopted a lower voice and hurried manner for the rest of the oath.”

9.  In the light of this, on 18 October 2016, the President decided that the oath taken by each of Leung and Yau on 12 October 2016 was invalid.  However, his decision went on to permit each to re-take their oaths at the next meeting of Legco on 19 October 2016 if they requested to do so in writing.  Leung and Yau both requested to do so.   However, events were then overtaken by these legal proceedings which were commenced on 18 October 2016.

10.  There were two sets of proceedings below which were heard together.  In HCMP 2819 of 2016, the Chief Executive and Secretary for Justice sought declaratory and injunctive relief against Leung and Yau in relation to their respectively entering on the office of Legco member; and, in HCAL 185 of 2016, the Chief Executive and Secretary for Justice sought relief to quash the President’s decision of 18 October 2016 and to declare that Leung and Yau’s oaths could not be re-administered.

The Interpretation of BL104 by the Standing Committee

11.  On 7 November 2016, after the hearing of the proceedings in the Court of First Instance but before judgment was given, the Standing Committee of the National People’s Congress (“NPCSC”) of the People’s Republic of China (“PRC”) exercised its power under Article 158(1) of the Basic Law[3] to interpret BL104 (the “Interpretation”).  The Interpretation states as follows:

“1. ‘To uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China’ and to bear ‘allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China’ as stipulated in Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, are not only the legal content which must be included in the oath prescribed by the Article, but also the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article.

2. The provisions in Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China that ‘When assuming office’, the relevant public officers ‘must, in accordance with law, swear’ bear the following meaning:

(1) Oath taking is the legal prerequisite and required procedure for public officers specified in the Article to assume office. No public office shall be assumed, no corresponding powers and functions shall be exercised, and no corresponding entitlements shall be enjoyed by anyone who fails to lawfully and validly take the oath or who declines to take the oath.

(2) Oath taking must comply with the legal requirements in respect of its form and content. An oath taker must take the oath sincerely and solemnly, and must accurately, completely and solemnly read out the oath prescribed by law, the content of which includes ‘will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China’.

(3) An oath taker is disqualified forthwith from assuming the public office specified in the Article if he or she declines to take the oath. An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath. The oath so taken is invalid and the oath taker is disqualified forthwith from assuming the public office specified in the Article.

(4) The oath must be taken before the person authorized by law to administer the oath. The person administering the oath has the duty to ensure that the oath is taken in a lawful manner. He or she shall determine that an oath taken in compliance with this Interpretation and the requirements under the laws of the Hong Kong Special Administrative Region is valid, and that an oath which is not taken in compliance with this Interpretation and the requirements under the laws of the Hong Kong Special Administrative Region is invalid. If the oath taken is determined as invalid, no arrangement shall be made for retaking the oath.

3. The taking of the oath stipulated by Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China is a legal pledge made by the public officers specified in the Article to the People’s Republic of China and its Hong Kong Special Administrative Region, and is legally binding. The oath taker must sincerely believe in and strictly abide by the relevant oath prescribed by law.  An oath taker who makes a false oath, or, who, after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law.”

The decisions below

12.  In the Court of First Instance, Leung and Yau opposed the proceedings against them on a number of grounds, not all of which are sought to be pursued in this Court.  First, they invoked the non-intervention principle to argue that the court should not intervene in respect of the President of Legco’s decision that they be allowed to re-take their oaths.  Second, they argued that their conduct in the oath-taking process is immune from suit.[4] Third, they contended that section 21 of the Ordinance does not operate automatically as a matter of law to disqualify them as members of Legco.  Fourth, they contested the Chief Executive’s locus to bring these proceedings.  In his judgment dated 15 November 2016, Au J rejected each of Leung and Yau’s grounds of opposition and held in favour of the Chief Executive and Secretary for Justice, granting the declaratory and injunctive relief sought. 

13.  The Judge reached his conclusions independently of the Interpretation[5] but considered Leung and Yau’s submissions on it, which were: that under paragraph 2(4) of the Interpretation the person administering the oath is the final arbiter to determine the validity of an oath and its compliance with BL104 and the Ordinance, hence supporting reliance on the non-intervention principle; that, properly construed as a matter of common law, the Interpretation went further than the meaning of BL104 and so was not in compliance with BL158 and not binding on the court; and that the Interpretation was effectively an amendment of BL104 and so had no retrospective effect.  He rejected their reliance on the Interpretation in support of the non-intervention principle and held that it was not necessary for him to determine the other contentions in view of his conclusions on the issues in favour of the Chief Executive and Secretary for Justice without reference to the Interpretation.[6]

14.  Leung and Yau appealed to the Court of Appeal essentially repeating the arguments advanced at first instance.  The Court of Appeal (Cheung CJHC, Lam VP and Poon JA) unanimously rejected those arguments and, by their judgment dated 30 November 2016,[7] dismissed their appeals.  By a further judgment dated 16 January 2017, the Court of Appeal dismissed Leung and Yau’s applications for leave to appeal to this Court.

15.  It is important to emphasise one particular matter that arises from the decisions below, which is the finding of fact by Au J that, when they purported to take the Legco oath on 12 October 2016, Leung and Yau each:

“… manifestly refused (and thus declined) to solemnly, sincerely and truly bind themselves to uphold the BL or bear true allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China. Alternatively, at the least, they must have wilfully omitted (and hence neglected) to do so.”[8]

The Court of Appeal affirmed this finding, holding that:

“On the facts, there can be no dispute that both Leung and Yau have declined respectively to take the LegCo Oath. They have put forward no argument to dispute this. Nor can they. There can be no innocent explanation for what they uttered and did on 12 October 2016. What has been done was done deliberately and intentionally. This conclusion, reached by the judge after careful consideration, is unassailable.”[9]

The present applications

16.  By notices of applications dated 13 February 2017, Leung (FAMV 9 and 10 of 2017) and Yau (FAMV 7 and 8 of 2017) have renewed their applications for leave to appeal to the Appeal Committee, contending that their proposed appeals raise questions of law which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court for decision. Although not in identical terms, the questions of law sought to be raised by each of the applicants’ respective notices of application engage: (1) the issue of the applicability of the non-intervention principle, (2) the proper construction of section 21 of the Ordinance, and (3) the ambit and effect of the Interpretation.  In addition, Yau raises a question concerning the proper construction of certain provisions of the Legislative Council Ordinance (Cap.542) which relates to the question of whether disqualification for declining or neglecting to take the Lego oath is automatic.

The non-intervention principle

17.  In Leung Kwok Hung v President of the Legislative Council (No.1),[10] the Court of Final Appeal acknowledged,[11] as a common law doctrine, the doctrine of the separation of powers and, within it, the established relationship between the legislature and the courts, including the principle that the courts will recognise the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, in particular its legislative processes.  The Court also acknowledged, as a corollary to this, the proposition that the courts will not intervene to rule on the regularity or irregularity of the internal processes of the legislature but will leave it to determine exclusively for itself matters of this kind: this is the non-intervention principle.

18.  In these applications, Leung and Yau rely on the non-intervention principle to challenge the proceedings against them and to contend that, the President of Legco having decided that they should be allowed to re-take their oaths, it was not for the courts to interfere with that decision.  They seek leave to appeal in respect of the following questions relating to this principle:

(1) Leung’s Questions (1) and (2):

“(1) Does the constitutional principle of judicial non-intervention in the internal affairs of LegCo apply to the Ruling of the President of LegCo to allow the Applicant a further opportunity to take the LegCo Oath?”

“(2) If the answer to Question (1) is negative, what are the respective roles of the oath administrator and the Court in determining whether a LegCo member has ‘decline[d] or neglect[ed] to take an oath duly requested’ under section 21 of the ODO and in determining whether to allow the LegCo Member a further opportunity to take the Oath? In particular, what is the extent of review by the Court?”

(2) Yau’s Questions (2) and (3):

“(2) Whether the principle whereby the LegCo has exclusive control over the conduct of its own affairs extends to the matter of oath-taking by legislators within the LegCo as required by the provisions of the ODO and in particular, whether the LegCo may by its internal procedures and practice control the manner of such oath-taking.”

“(3) Whether in relation to such oath-taking within the LegCo, the purpose of which is to have the legislators sworn, the court should not intervene unless it is necessary for the protection of the constitutional rights of the Hong Kong Permanent Residents who voted for a duly elected legislator to take part in the conduct of public affairs through their freely chosen representative and of the constitutional rights of a duly elected legislator under Basic Law Articles 39, 77, 78, Article 25 of the International Covenant on Civil and Political Rights and Article 21 of the Bill of Rights against the consequences of a decision by the President in relation to such oath-taking.”

19.  It is important to recognise the proper scope of the principle of non-intervention.  In Leung Kwok Hung v President of the Legislative Council (No.1), the context was the appropriateness of court intervention in the legislative process where the President of Legco had made a decision in relation to the length of debate on a bill which had been the subject of attempts to filibuster it.  Even in that context, the Court stated that:

“In this respect it is important to recognise that the principle of non-intervention is necessarily subject to constitutional requirements. The provisions of a written constitution may make the validity of a law depend upon any fact, event or circumstance they identify, and if one so identified is a proceeding in, or compliance with, a procedure in the legislature the courts must take it under its cognizance in order to determine whether the supposed law is a valid law.”[12]

20.  Hence, the Court concluded, in answer to the issue of whether Article 73(1) of the Basic Law mandated the exercise of jurisdiction by the Hong Kong courts to ensure compliance with the Rules of Procedure of Legco (“the Rules of Procedure”) in its legislative processes, that:

“… although art.73(1) does not make compliance with the Rules essential to the validity of the enactment of a law by LegCo and that it is for LegCo itself to determine its own procedures and how they will be applied, the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of LegCo. We also arrived at the conclusion that the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of the President of LegCo. We arrived at this conclusion in the light, not only of art.73(1), but also of the provisions of art.72 of the BL and the important powers and functions which it confers on the President, particularly the power to ‘preside over meetings’. The courts, however, will not exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges or immunities either by LegCo or the President.”[13]

21.  In the present context, the principle of non-intervention cannot apply in respect of the court’s duty to rule on the question of compliance with the constitutional requirements of BL104.  In the exercise of their judicial power conferred by the Basic Law, it is the duty of the courts of the Hong Kong Special Administrative Region, as a matter of obligation and not discretion, to enforce and interpret that law: Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4 at 25H-I.  BL104 gives rise to a constitutional duty on members of Legco to take an oath to swear to uphold the Basic Law and to swear allegiance to the Hong Kong Special Administrative Region.  This is clear from the terms of BL104 itself but is reinforced by paragraph 2 of the Interpretation.  Although the precise terms of the oath to be taken are not expressly set out in BL104, the provision imposes a duty to swear “in accordance with law”.  That law is the Ordinance, sections 16 and 19 and Schedule 2 of which stipulate the form of the Legco oath that members are required to take and also provides, by section 21, that certain consequences will attach to a person who declines or neglects to take that oath when duly requested to do so.

22.  In the circumstances, by reason of the constitutional requirement in BL104, the courts are plainly duty bound to consider the question of whether Leung and Yau did each duly take the Legco oath on 12 October 2016 and, if not, with what consequences, and the non-intervention principle does not preclude such judicial inquiry.  This conclusion is reinforced by the fact that it has not been contended by either Leung or Yau that any of sections 16, 19 or 21 of the Ordinance are generally unconstitutional.  Furthermore, the Interpretation provides explicitly that the taking of the Legco oath is a legal prerequisite to taking up office and that a person who declines to take the oath is disqualified from assuming office.

23.  It was contended, on behalf of Leung, that because there are no specific constitutional requirements in BL104 relating to the manner in which the Legco oath is taken, the general principle of non-intervention applies and it is for the President of Legco, and not the courts, whether to allow him a second opportunity validly to take that oath.  Similarly, on behalf of Yau, it was contended that the procedural arrangements for the taking of the Legco oath are part of the internal processes of Legco and governed by the Rules of Procedure, so that it is a matter for the President of Legco to decide if and when she should re-take her oath.  Alternatively, Yau contended that, if the non-intervention principle does not apply, the procedural decision of the President of Legco (to permit her to re-take her Legco oath) should be reviewable by the courts only where necessary for the protection of the constitutional rights of a Hong Kong permanent resident who voted for a duly elected legislator.

24.  These submissions are untenable and the same submissions in substance were rightly rejected by the courts below.  As explained above, BL104 imposes a constitutional requirement on a member of Legco validly to take the Legco oath.  The question of whether that has been done, when properly raised, is a matter into which the courts are duty bound to inquire.  None of the questions sought to be raised by Leung or Yau in respect of the non-intervention principle are reasonably arguable or give rise to a reasonably arguable ground of appeal.

The proper construction of section 21 of the Ordinance and whether disqualification is automatic

25.  Section 21 of the Ordinance is a legislative provision mandated by the constitutional requirement in BL104 and provides for the consequence where a member of Legco declines or neglects to take the Legco oath.  It has not been contended that it does not meet the constitutional requirement of legal certainty or that it does not constitute a provision “in accordance with law” within BL104.

26.  Instead, Leung and Yau argue that section 21 of the Ordinance should not be construed as requiring a member of Legco who declines or neglects to take the Legco oath to vacate his office automatically by operation of law and seek to raise the following questions relating to the interpretation of section 21 of the Ordinance:

(1) Leung’s Questions (3) and (4):

“(3) On the proper construction of section 21(a) of the ODO, is vacation of office automatic by operation of law, or does the provision confer a discretion and/or requires the office-holder to vacate the office?”

“(4) If section 21(a) of the ODO or Article 104 of the BL otherwise prohibits the President of LegCo from allowing a LegCo Member to have a further opportunity to take the Oath, would this breach the constitutional requirement of proportionality, having regard to the rights of the LegCo Member and the electors of his constituency under Article 26 of the BL?”

(2) Yau’s Questions (4) and (5):

“(4) Whether a legislator is to be adjudged as having declined or neglected to take an oath which he is required to take pursuant to section 21 of the ODO by reference to his solemnity or lack thereof, there being no express requirements in the ODO or in the Rules of Procedure or practice of the LegCo as to the conduct or manner of taking the oath and/or by reference to his sincerity or lack thereof in light of his words or conduct at the time of oath-taking.”

“(5) Whether a legislator determined to have declined or neglected to take an oath which he is required to take pursuant to section 21 of the ODO is ‘ipso facto’ automatically disqualified from being a LegCo member or automatically ceases to hold office as a LegCo member.”

27.  In addition, Yau raises a question (Question (6)) concerning the construction of section 73 of the Legislative Council Ordinance (Cap.542), which is relied upon as an allied argument to those advanced on her behalf on the construction of section 21 of the Ordinance, in these terms:

“(6) Whether on the proper construction of section 73 of the LCO, the circumstances in which a person is disqualified from acting as a Member are confined to the circumstances provided for in section 15 of the LCO.”

28.  It is important to recognise that any question as to the interpretation of section 21 of the Ordinance arises, in the present cases, in the context of Leung and Yau having been found to have manifestly refused and wilfully omitted (and so, in the language of section 21, to have declined and neglected) to take the Legco oath when requested to do so.  That finding of fact, as already noted above, cannot reasonably be contested.  In the circumstances, the arguments advanced on behalf of Leung and Yau that section 21 of the Ordinance is not intended to disqualify a member of Legco who inadvertently omits some words of the Legco oath or who mistakenly reads the wrong oath are simply not engaged on the present facts.  In such a situation, the oath taker would not have declined or neglected to take the requisite oath and the President of Legco would be acting lawfully in requesting the member to re-take the Legco oath at another sitting of Legco.  On the other hand, where a member has been incontrovertibly found by a court to have declined or neglected to take the Legco oath, as in the present case, there is no discretion or judgment to be exercised by the President of Legco.

29.  Such a conclusion on the effect of section 21 of the Ordinance is consistent with BL104 as construed in light of the Interpretation (in particular paragraph 2(3) thereof) and also, independently, on the proper construction of section 21 itself in the light of its context and purpose.  This was the clear conclusion of both Au J[14] and the Court of Appeal[15] and we do not consider it to be reasonably arguable that their construction of section 21 of the Ordinance is wrong. 

30.  Yau’s argument that section 21 of the Ordinance does not impose a requirement of solemnity is without substance and not reasonably arguable. Construed in the light of its context and purpose, which include the provisions of BL104, it is plainly to be implied that the requirement to take the Legco oath is a requirement to take that oath in an objectively solemn manner.  This is amply supported by: the wording of the oath itself (see above); the provisions concerning the normal manner of administration of oaths in general (section 5 of the Ordinance); and, where a person objects to being sworn, the need for an affirmation in lieu of an oath which by its express terms is to be taken “solemnly, sincerely, and truly” (section 7 of the Ordinance).  In any event, the requirement for solemnity in the taking of the Legco oath is now also expressly stipulated in paragraphs 2(2) and 2(3) of the Interpretation which (as discussed below) is binding on the courts of the Hong Kong Special Administrative Region.

31.  Leung’s argument that the words “who declines or neglects to take an oath” should be interpreted so that a person who fails to take a valid oath, but is willing to do so with minimal delay, neither “declines or neglects” for the purposes of section 21 of the Ordinance since any broader interpretation would conflict with the principle of proportionality must similarly be rejected as not reasonably arguable since we can see no basis for such a construction and no unconstitutionality requiring the provision to be read down.  On the facts of the present case, Leung and Yau manifestly refused and wilfully omitted, and therefore declined and neglected, to take the Legco oath.  There is no reasonable basis for the argument that disqualification in these circumstances amounts to a disproportionate interference with any constitutional rights.

32.  Yau’s argument in reliance on section 73 of the Legislative Council Ordinance (Cap.542) does not assist her.  We do not accept that it is reasonably arguable that the scope and effect of section 21 of the Ordinance is excluded by the existence of other circumstances and procedures by which a member of Legco can be disqualified from office.

The Interpretation

33.  In respect of the Interpretation, Leung and Yau seek to raise the following questions by way of appeal:

(1) Leung’s Question (5):

“(5) Whether the Interpretation alters the legal position in this case. The following legal issues arise:

(a) Should the Court give the narrowest possible meaning to the Interpretation given that it is an extraordinary power which conflicts with normal principles of the separation of powers by telling a Court how to interpret a constitutional document?

(b) Does ‘determined’ in the final sentence of paragraph 2(4) of the Interpretation mean only by a decision of the President of LegCo (see (1) above)?

(c) Does the Interpretation prohibit a second opportunity to take the Oath, whatever the circumstances (an inadvertent stumbling over the words?) and however disproportionate that would be?

(d) If the Interpretation does allow for a second opportunity in some circumstances, who decides whether to allow such a second opportunity?

(e) Does the Interpretation have retrospective effect, however unfair that may be in the circumstances of this case?

(f) Does the Interpretation amount to an ‘amendment’ of the BL without complying with the prescribed procedure under Article 159 of the BL, so that the Interpretation is not made ‘in accordance with the provisions of the Basic Law and the procedure therein’ and the courts of Hong Kong have a duty to declare it to be invalid according to the principles stated in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, 26A-B and Ng Ka Ling v Director of Immigration (No.2) (1999) 2 HKCFAR 141, 142D-E?

(g) Do paragraphs 1, 2(3) and 2(4) of the Interpretation (or any part thereof) go beyond interpreting Article 104 of the BL and therefore do not amount to a binding interpretation of Article 104 of the BL?”

(2) Yau’s Question (1):

“(1) Whether the courts of the HKSAR, in interpreting the Interpretation, have the jurisdiction to do any of the following:

a. Consider and determine whether the Interpretation or parts of it is or are not an interpretation of a provision of the Basic Law but is instead an interpretation of a local law made by the Legislature of the HKSAR namely the ODO and to the extent that it is an interpretation of a local law made by the Legislature of the HKSAR, it is not made under Basic Law Article 158;

b. Alternatively, on the basis that the Interpretation is binding, whether it is for the HKSAR internally to prescribe what are the requirements of ‘in accordance with law’ as stated in Basic Law Article 104 to accord with the Interpretation which in terms mean the amendment of ODO and Rules of Procedure of the LegCo to conform to the Interpretation and in particular to make the legal requirements for sincerity and solemnity objectively clear;

c. Consider and determine whether the Interpretation which is silent as to the date of its commencement is not retrospective in its effect and the date of commencement should only start from the date of promulgation or alternatively requires the HKSAR to make conforming amendments to the ODO and the Rules of Procedure of the LegCo and the law to be applied to Ms. YAU Wai Ching’s case is as it existed prior to the Interpretation.”

34.  In approaching questions raised in respect of the Interpretation, it must be borne in mind that the Court has previously considered the scope of BL158(1), the power of the NPCSC to interpret provisions of the Basic Law and the effect of such interpretations on a number of occasions, among them in the Court’s decisions in Ng Ka Ling & Others v Director of Immigration,[16] Ng Ka Ling & Others v Director of Immigration (No.2),[17] Lau Kong Yung & Others v Director of Immigration,[18] Director of Immigration v Chong Fung Yuen[19] and, most recently, Vallejos v Commissioner of Registration.[20]

35.  Thus, certain basic propositions are authoritatively established.  Under the constitutional framework of the Hong Kong Special Administrative Region, the Basic Law is a national law of the PRC, having been enacted by the National People’s Congress pursuant to Article 31 of the Constitution of the PRC.[21] The NPCSC’s power to interpret the Basic Law derives from Article 67(4) of the Constitution of the PRC and is provided for expressly in the Basic Law itself in BL158(1) and is in general and unqualified terms.[22]  The exercise of interpretation of the Basic Law under PRC law is one conducted under a different system of law to the common law system in force in the Hong Kong Special Administrative Region, and includes legislative interpretation which can clarify or supplement laws.[23]  An interpretation of the Basic Law issued by the NPCSC is binding on the courts of the Hong Kong Special Administrative Region.[24]  It declares what the law is and has always been since the coming into effect of the Basic Law on 1 July 1997.[25]

36.  In these circumstances, unless this Court were to revisit these fundamental propositions of law, it is apparent that many of the questions sought to be raised by Leung and Yau as to the Interpretation have already been authoritatively determined by the Court.  In our view, there is no warrant for revisiting those propositions and Leung and Yau’s contentions questioning their correctness are not reasonably arguable.  In short, we are satisfied that the Interpretation is clear in its scope and effect, that disqualification of Leung and Yau is the automatic consequence of their declining or neglecting to take the Legco oath, and that it is binding on the courts of the Hong Kong Special Administrative Region as regards the true construction of BL104 at the material time when Leung and Yau purported to take their oaths.

37.  In any event, in respect of the other questions sought to be raised by Leung and Yau on the Interpretation in relation to the true construction of BL104, in view of the proper construction of section 21 of the Ordinance as held by the courts below (the proposed challenges to which, we have concluded, are not reasonably arguable) and the unchallenged findings of fact of those courts, the outcome of the present case would be the same irrespective of the Interpretation.  We do not consider it to be reasonably arguable that the effect of the Interpretation is to oust the jurisdiction of the courts in respect of the question of whether a member of Legco has validly taken the Legco oath or that it precludes the application of the Ordinance to govern the consequences of declining or neglecting to take a required oath.

Conclusion

38.  In view of his full written submissions in response to the applications, we did not call on Mr Benjamin Yu SC, counsel for the Chief Executive and Secretary for Justice, after hearing Lord Pannick QC for Leung and Ms Gladys Li SC for Yau.  We were satisfied that, regardless of the general and public importance of some of the questions sought to be raised, Leung and Yau’s appeals against the decisions below, declaring them to have been disqualified from the office of Legco member and precluding their re-taking their Legco oaths, are not reasonably arguable and that there is no reasonable prospect of the Court differing from the conclusions of the courts below.

39.  In the circumstances, we dismissed the applications for leave to appeal with costs, to include a certificate for two counsel.