KWOK CHEUK KIN v. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS

CACV 57/2014

CIVIL APPEAL NO. 57 OF 2014

(ON APPEAL FROM HCAL NO. 72 of 2012)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  In the judgment handed down by us on 22 October 2015, we dismissed the appeal by the Applicant. He applied for leave to appeal to the Court of Final Appeal. The following is framed as the question of great general or public importance in his Notice of Motion of 19 November 2015:

“ Is section 39(2A) of the Legislative Council Ordinance, Cap. 542 inconsistent with Article 26 of the Basic Law of the Hong Kong Special Administrative Region and/or Article 21 of the Hong Kong Bill of Rights, and therefore unconstitutional?”

2.  Mr Pun SC (leading Mr Newman Lam), arguing the application on behalf of the Applicant, relied on the observations of Stock VP in the admission of Mr Pannick QC in HCMP 2475 of 2013, 18 October 2013, to contend that the question is of great general or public importance.  No doubt, the learned Vice-President was assessing the matter on the basis of the materials before him and on the arguments as presented to His Lordship.  We have no reason to disagree with his then assessment.

3.  However, the issues had since been considerably refined and we must now determine this application by reference to what are before us. 

4.  Further, as submitted by Lord Pannick QC on behalf of the Respondent, we must also consider whether the contentions now sought to be run by the Applicant before the Court of Final Appeal are reasonably arguable.

5.  In the submissions presented to us, Mr Pun advanced two main lines of argument.  The first line of argument related to our analysis of the proportionality test and counsel submitted that our conclusion of a single proportionality test is inconsistent with the judgment of Ribeiro PJ in Kong Yunming paras 40-41.  Mr Pun submitted that there are different proportionality tests, depending on whether fundamental rights are engaged.  He further said that we had implicitly endorsed the application of the test of manifestly without reasonable foundation in cases of fundamental rights.

6.  With respect, for reasons which we fully canvassed in our judgment of 22 October 2015, it is quite plain that Ribeiro PJ was adverting to the difference in the intensity of review in the paragraphs Mr Pun relied upon.   We do not consider it reasonably arguable that there should be different proportionality tests for different cases.

7.  Again with respect, we do not read Official Receiver v Zhi Charles FACV 8 of 2015, 5 Nov 2015 as holding otherwise once the concepts of the proportionality test itself and the intensity of review in the application of the test are borne in mind. 

8.  Further, it should be quite clear from our judgment that the proportionality test we applied was by reference to formulation of the third limb as advocated by Mr Pun, viz that the restriction should be no more than is necessary to accomplish the legitimate aim (what Mr Pun labelled as the minimal impairment test).  There is also no question of we adopting “manifestly without reasonable foundation” as the standard of review in the present appeal, see paragraph 43 of our judgment.  We followed established authorities in holding that the intensity of review could differ in light of the particular issues involved having regard to the constitutional roles of the court, the executive and the legislature.  Mr Pun did not begin to show that we are wrong in so holding.

9.  Mr Pun’s second main line of arguments focused on the evidential aspect pertaining to the legitimate aim identified in our judgment and the judgment of Au J.  His arguments were considered by us and Au J at length in these judgments.  We do not accept that the re-running of such arguments would give rise to any questions of great general public importance.  The crucial point was whether the questions raised were essentially political questions on which reasonable views could differ.  We do not think it is reasonably arguable that we were wrong in holding that they were. 

10.  For these reasons, we do not find this to be a proper case for leave to be granted.  We dismiss the Motion accordingly.  As no statement of costs has been placed before us, we shall order the Applicant to pay the costs of the Respondent in the motion, such costs are to be taxed with a certificate for 2 counsel if not agreed. We also order legal aid taxation of the Applicant’s own costs.