郭卓堅 v. 立法會主席梁君彥 AND ANOTHER

HCAL 918/2020

[2020] HKCFI 919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 918 OF 2020

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D E C I S I O N

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1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge (i) the decision of the President of the Legislative Council (1^st Putative Respondent) on 15 May 2020 to invoke Rule 92 of the Rules of Procedure of the Legislative Council of the HKSAR (“the ROP”) to appoint Mr Chan Kin-por (“the 2^nd Putative Respondent”), a member of the Legislative Council, to preside over the election of the Chairman of the House Committee for the 2019-20 session of the 6^th term of the Legislative Council at the House Committee meeting scheduled for 18 May 2020 (“the Decision”), and (ii) the 2^nd Putative Respondent’s acceptance of the said appointment by the 1^st Putative Respondent.

2.  In the Form 86 dated 18 May 2020, the Applicant also asked the court to convene an urgent oral hearing after 6:00 pm on 18 May 2020 to consider his application for leave to apply for judicial review, and grant interim relief to restrain the holding of the proposed House Committee meeting on 18 May 2020.

3.  By the time that the Form 86 came to the attention of this court, the House Committee meeting on 18 May 2020 had already been held, and the incumbent Chairperson of the House Committee had been re-elected as the Chairperson of the House Committee for the 2019-20 session of the 6^th term of the Legislative Council.  Accordingly, the urgency of the interim application had been overtaken by events.

4.  On 18 May 2020, the court directed an inter partes oral hearing on 22 May 2020 to consider the Applicant’s applications for leave to apply for judicial review and interim relief.

5.  Rule 92 of the ROP states as follows: “In any matter not provided for in these Rules of Procedure, the practice and procedure to be followed in the Council shall be such as may be decided by the President who may, if he thinks fit, be guided by the practice and procedure of other legislatures”.

6.  In essence, the Applicant’s argument is that the 1^st Putative Respondent has no power under Rule 92 of the ROP to appoint the 2^nd Putative Respondent to preside at the House Committee meeting on 18 May 2020 in relation to the matter of election of the Chairman of the House Committee, because that matter is expressly provided for in the ROP, namely, Rule 75, which, so far as relevant, states as follows:

“(1) There shall be a committee, to be called the House Committee, the members of which shall be all the Members other than the President.

(2) The chairman and deputy chairman of the committee shall be elected by the committee from among its members and shall hold office until the chairman and deputy chairman of the committee for the next session are respectively elected in that next session or, in case that election is held before that next session commences, until that commencement. In the event of the temporary absence of the chairman and deputy chairman, the committee may elect a chairman to act during such absence.

(3) The election of the chairman and deputy chairman of the committee for the first session of a term shall take place at the first meeting of the committee in the session. For the second or each subsequent session of the term, the election may take place at a meeting held before that session commences.”

7.  The Applicant further argues that the Decision of the 1^st Putative Respondent is inconsistent with Articles 72(6) and 75 of the Basic Law.

8.  On behalf of the Putative Respondent, Mr Chan opposes the applications on 3 grounds:

(1)  The 1^st Putative Respondent is empowered by Article 72 of the Basic Law to make the Decision, which is a matter within the Legislative Council’s own internal process over which it has exclusive authority.  The election procedure of the Chairman of the House Committee is not prescribed by the Basic Law or any other law.  The court, applying the “non-intervention” principle, will not decide whether or not the 1^st Putative Respondent’s power was properly exercised.  Nor will it determine the regularity or irregularity of the Decision.

(2)  In any event, the 1^st Putative Respondent did not misapply Rule 92 of the ROP on the facts of the present case.

(3)  The Applicant lacks the necessary locus, and his challenge is academic.

9.  The questions of whether (i) the “non-intervention” principle applies, and (ii) the 1^st Putative Respondent has power under Rule 92 of the ROP to make the Decision, on the facts of the present case are questions of some general importance and complexity.  It is not with disrespect to Mr Chan that I do not propose to examine the merits of his arguments on these 2 questions, for I am clearly of the view that the Applicant does not have a sufficient interest in the matter to which the present application relates within the meaning of Order 53, rule 3(7) of the Rules of the High Court, Cap 4A.  The Decision does not affect his rights or interests directly, and there are obviously other persons who have “a much greater and better interest in bringing the judicial review”, namely, those members of the Legislative Council who opposed the Decision: see Tsang Kwong Kuen v The Chairman of The Finance Committee of the Legislative Council, HCAL 44/2015 (31 May 2017), at §44 per Au J (as he then was).

10.  It would, in my view, be wholly unsatisfactory for the court to determine the 2 questions mentioned above without hearing full arguments on both sides.  Since it is not necessary to do so in the present case, I shall leave them open for future consideration should they arise for determination.

11.  I dismiss the application for leave to apply for judicial review on the ground that the Applicant lacks the necessary locus to bring the present application.  It follows that the application for interim relief is also dismissed.

12.  On the question of costs, the hearing on 22 May 2020 has been necessitated by the Applicant’s request for an urgent oral hearing to deal with his applications for leave to apply for judicial review and interim relief.  Taking into account the obvious lack of standing on the part of the Applicant, and that Mr Chan has provided substantial assistance to the court, I order the Applicant to pay the costs of the Putative Respondents, to be taxed if not agreed.