LEUNG KWOK-HUNG v. LEGISLATIVE COUNCIL SECRETARIAT

HCAL 112/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.112 OF 2004

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J U D G M E N T

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1. The applicant in this matter seeks leave to apply for judicial review pursuant to O.53, r.3 of the Rules of the High Court.  The application, which has been heard by me as a matter of urgency, arises in the following way.

2. In the recent general election, the applicant was elected to be a member of the Legislative Council.  The new Council is due to commence its first meeting this afternoon.  At that meeting, the applicant, and all other members-elect, will be invited to assume office and in doing so will be required to take the Legislative Council Oath.

3. The taking of the Legislative Council Oath is directed by Hong Kong’s primary instrument of constitution, the Basic Law.  In this regard, art.104 is to the following effect :

“      When assuming office … members of the … Legislative Council … 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.”  [my emphasis]

4. When assuming office, the taking of an oath that accords with the requirements of art.104 is not therefore discretionary.  It is a mandatory constitutional obligation imposed on all members-elect of the Legislative Council.

5. An oath taken in accordance with art.104 is no empty form of words.  It constitutes a solemn declaration, a form of promise, which binds the maker to a particular code of conduct.  A failure to adhere to that code of conduct may render the maker liable to expulsion from office.  In this respect, art.79(7) of the Basic Law states that —

“      The President of the Legislative Council of the Hong Kong Special Administrative Region shall declare that a member of the Council is no longer qualified for the office under any of the following circumstances:

       …

       (7)   When he or she is censured for misbehaviour or breach of oath by a vote of two-thirds of the members of the Legislative Council present.”  [my emphasis]

6. The actual form of the oath to be taken by Legislative Councillors when assuming office is prescribed by the Oaths and Declarations Ordinance, Cap.11 (‘the Ordinance’).  S.16(d) of the Ordinance directs that the Legislative Council Oath shall be in the form set out in Schedule 2.  The oath contained in that schedule is as follows :

“      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.”

7. The applicant is desirous of taking the oath when he assumes office.  It appears that he will do so in Cantonese.  The applicant, however, wishes to take the oath in an amended form.  The amendments that he seeks to incorporate appear at the beginning of the oath.  The English translation of the amendments, as I have them, are as follows :

“I, Leung Kwok-hung, solemnly, sincerely, and truly declare and affirm that I swear by the people of China and the residents of Hong Kong, as well as the principles of democracy, justice, human rights and freedom 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 etc.”  [my emphasis]

8. According to the applicant, these additions to the Legislative Council Oath reflect the universal principles to which he adheres and upon which he was elected.  The problem, of course, is that the amendments — no matter how laudible the sentiments expressed in them — are not prescribed by the Ordinance.

9. When the applicant submitted his proposed amended oath to the Clerk to the Legislative Council, he was informed by letter dated 27 September 2004 that, as the oath did not accord with the form prescribed by the Ordinance, the Clerk would not have the statutory power to administer it.  In the circumstances, if the applicant insisted on taking the oath in accordance with his own wording, it was likely that he would be held not to have taken the oath in accordance with law.

10. In the letter of 27 September 2004, the applicant was referred to s.19 of the Ordinance which reads :

“      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.”

11. In the letter of 27 September 2004, the applicant was also informed of the potentially profound results of not taking an oath in accordance with law.  In particular he was referred to s.21 of the Ordinance which provides that a Legislative Councillor—

“      … 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.”

12. It was in response to the letter of 27 September 2004 that the applicant instituted the present proceedings seeking leave to apply for judicial review.  In his application, he has sought the following relief :

(i)      an order of mandamus compelling the Clerk to the Legislative Council to administer his amended oath in terms of s.19(a) of the Ordinance, and

(ii)      a declaration that the amended oath is in accordance with the requirements of art.104 of the Basic Law.

13. Although, as I have said, the applicant is due to assume the office of a Legislative Councillor this afternoon, his application for leave was filed less than 48 hours ago.  The application does, however, raise matters of pressing public concern.  For that reason, I directed that there be an early hearing, that hearing to be convened in terms of O.53, r.3(3) of the Rules of the High Court.  In the result, that meeting took place late yesterday afternoon.

14. In giving directions for the hearing, I directed that the respondent be informed that, if he wished, he could attend the hearing or be represented at it in order to render such assistance to me as I deemed fit.  In the result, the respondent was represented by Mr Kenneth Kwok SC.

15. In light of the matters of public importance arising out of the application and their possible constitutional ramifications, the Secretary for Justice also sought to be represented as an interested party and/or amicus curiae in order to protect the public interest.  I agreed that the Secretary may be represented.  Mr Daniel Fung SC, as leading counsel, appeared on her behalf.

16. The application, as I have said, is one for leave to apply for judicial review.  As such, it has been for the applicant to demonstrate that matters have been disclosed which, on further consideration, might demonstrate an arguable case for granting the relief sought.  To express it perhaps more directly, the applicant has had to demonstrate that there is a case fit for further investigation at a full inter partes hearing.  The burden on the applicant has not been an onerous one.  But that does not mean it has been no burden at all.

17. As the applicant himself recognised, it was fundamental to his application for leave that he be able to present a prima facie arguable case that his intended form of oath is not inconsistent with art.104 of the Basic Law.  On several occasions he said that he had sought leave in order to obtain guidance onto this single matter.

18. It was, of course, the applicant’s contention that his intended form of oath did meet the requirements of art.104.  The article, he said, demanded, first, that a Council member must swear to uphold the Basic Law and, second, that he must swear allegiance to the Hong Kong Special Administrative Region.  His amended oath, said the applicant, met both these demands and did so, in fact, in exactly the same form as prescribed in Schedule 2 of the Ordinance.

19. All he sought to do, said the applicant, was to add words to the beginning of the oath that reflected his deeply held beliefs.  This, he submitted, was analogous to the words placed at the end of the oath in its prescribed form, these words also being ‘additional’ to the requirements of art.104.  The words to which he referred were those which state that a Legislative Councillor will serve Hong Kong ‘conscientiously, dutifully, in full accordance with the law, honesty and with integrity’.  The applicant emphasised that these additional words were of equally wide import to the words he wished to insert and equally capable of different interpretations.

20. The applicant was correct, of course, in saying that art.104 demands only that a Legislative Councillor assuming office must swear to uphold the Basic Law and must swear fealty to Hong Kong.  But, as the applicant himself recognised, art.104 also demands that a Legislative Councillor must, ‘in accordance with law’, commit himself to those two obligations.  To cite the opening lines of art.104 again, they read :

“      When assuming office … members of the … Legislative Council … 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 …”  [my emphasis]

21. As I understand it, my function in interpreting art.104 is to construe the language used in order to ascertain what is meant by that language and to give effect to the legislative intent as expressed in that language.  In doing so, I must adopt a purposive approach, looking to the language not in isolation but in the light of its context and purpose.  This is an objective exercise.  I must, of course, avoid a literal, technical, narrow or rigid approach but at the same time I cannot give a meaning to the language which it cannot bear.  The Basic Law may be our primary law but like all law it is important that it be certain and, equally important, that it be ascertainable by the citizen.  In this regard, see Director of Immigration v. Chong Fung Yuen [2001] 2 HKLRD 533 at 546.

22. In adopting this approach, I am satisfied that the phrase ‘in accordance with law’ has a clear meaning.  It means that a Legislative Councillor must take his oath in a manner and form that accords with the law of Hong Kong.  If, therefore, he swears his oath in a manner or form that is inconsistent with the law of Hong Kong, his oath offends art.104.

23. The law of Hong Kong includes its domestic law and this itself includes its statutory law.  The relevant statutory law, the law governing the taking of oaths by Legislative Councillors and other high officials, is the Ordinance.

24. The demands of the Ordinance, in my view, are unambiguous.  S.19 requires a Legislative Councillor to take ‘the Legislative Council Oath’ as soon as possible after the commencement of his term of office.  The oath to be taken is therefore defined.  It is not any oath that may be penned by a Legislative Councillor provided that oath meets the two obligations set out in art.104.  The section states specifically that the oath to be taken is ‘the Legislative Council Oath’.

25. The Legislative Council Oath is itself defined in s.16 which reads :

“The Oaths referred to in this Ordinance as—

(a)     the Oath of the Chief Executive;

(b)     the Oath of the Principal Officials;

(c)     the Executive Council Oath;

(d)     the Legislative Council Oath …

shall be in the respective forms set out in Schedule 2.”

[my emphasis]

26. It must be recognised that s.16 does not impart a discretion.  It does not say that the Legislative Council Oath ‘may’ be in the form set out in Schedule 2 nor does it say that it shall ‘substantially conform with’ that form.  It says only that the oath ‘shall’ be in that form.

27. In my judgment, therefore, it is manifest that the form of the oath to be taken by a Legislative Councillor is fixed by statute and, until, or unless, that form is amended by the Legislative Council itself, it must be adhered to if a Legislative Councillor is to take the oath ‘in accordance with law’.

28. Nor, in my view, is it possible to argue that uniformity in the form of the oath is, in any public law sense, unreasonable or oppressive.  As I have said earlier, art.79(7) of the Basic Law makes all members of the Legislative Council liable for expulsion from office for a breach of their oaths.  That uniform liability is, in my judgment, only manageable in a rational way if there is uniformity in the form of the oaths.  Each member knows to what he has sworn and to what all other members have sworn.  Common standards are set, common public expectation created.

29. That a uniform oath is required to ensure the integrity of a legislature is long recognised.  In this regard, for example, the preamble to the Parliamentary Oaths Act 1866 reads :

“Whereas it is expedient that One uniform Oath should be taken by Members of both Houses of Parliament on taking their Seats in every Parliament …”

30. As I understand it, however, the applicant sought to argue that the Ordinance is itself discriminatory, and, in its present terms, offends the Basic Law, more especially art.32 which protects freedom of conscience and/or those covenants and conventions incorporated into Hong Kong law in terms of art.39 of the Basic Law.  The applicant sought to argue that the Ordinance is discriminatory in that it allows persons of religious belief to take an amended oath but does not allow persons who hold other beliefs to do so.

31. Sections 5, 6 and 7 of the Ordinance state that a professed Christian or Jew may take any oath prescribed in the Ordinance by commencing that oath with the words ‘I swear by Almighty God’ while having a hand on the New Testament or, in the case of a Jew, on the Old Testament.

32. A person who is neither a Christian nor a Jew may swear his oath and may have it ‘administered’ in a manner appropriate to his religious belief.

33. If a person objects to being sworn then he shall be permitted to make an affirmation instead of an oath.

34. So yes, there is here a divergence.  But what must be emphasised is that in each case the form of the oath is still prescribed as to the words that may be used.  No statutory discretion is given for any form of general recitation.  A Christian, for example, is not permitted to state the Holy Trinity nor a Jew the oneness of God.

35. An oath is a solemn declaration.  In its original form it was invariably a promise to one’s deity.  The Ordinance, in my view, does no more than recognise that a person of religious belief may still bind himself to the Supreme Being in which he believes while a person not of religious belief is entitled to bind himself by the honour of his name and the fact itself of making a public declaration of intent.  The Ordinance goes no further than that.  It allows only for limited differences as to how a person wishes to take the oath, it does not allow for any real difference in the form — and thereby the substance — of the oath itself.

36. In my judgment, the amended oath that the applicant wishes to take goes further than merely defining how he wishes to take his oath, it alters the form and thereby the substance of the oath itself.

37. The Ordinance does not permit any person, religious or not, to swear by a list of principles : religious, political, economic, ecological or philosophical.  But viewed objectively, in my opinion, the applicant in the present case wishes to swear by such a list of principles.  That they may be laudible principles, that they may perhaps be universal truths, does not alter the fact that they are a list of principles and no such list of whatever kind is permitted by the Ordinance.

38. The applicant has argued that, by being restricted in the form of the oath he is allowed to take, his right to freedom of conscience under art.32 of the Basic Law has been violated.  As I understand it, the right to freedom of conscience means the right to be protected from unlawful interference by the state with an individual’s spiritual and moral existence.  I fail utterly to see how taking an oath in a prescribed form — when the oath itself in its prescribed form is entirely acceptable to the applicant — can constitute any form of interference with the applicant’s spiritual and/or moral existence.  The oath does not attempt to reduce the applicant’s beliefs.  It is no form of indoctrination nor can it be described as any form of attempt to influence the applicant’s conscious or subconscious mind.  The applicant may state his beliefs provided the rules of the Legislative Council permit him to do so.  The taking of the oath is but one manifestation of the public life that he has chosen.  In summary, I can find nothing of substance in the applicant’s contention that his right under art.32 of the Basic Law had been violated.

39. In my judgment, in the circumstances, I do not see how any form of prima facie arguable case could be advanced that the Ordinance is discriminatory in the manner submitted by the applicant so that the relevant provisions offend law and must be struck down.

40. In summary, I have concluded that the applicant has not been able to demonstrate any form of prima facie arguable case that his intended form of oath may be consistent with art.104 of the Basic Law.  In my judgment, it is manifest that the oath or affirmation he seeks to take when he assumes office, will offend art.104 and will therefore be unlawful and of no effect.  In the circumstances, I am satisfied that the applicant has not demonstrated a prima facie arguable case for the declaration that he seeks.

41. As for the remedy of mandamus, I am satisfied that, if the applicant’s intended oath offends art.104 and is therefore unlawful, it must follow that the respondent has no jurisdiction to administer such an oath.  That being the case, I am satisfied that the applicant has not demonstrated a prima facie arguable case for the grant of the relief of mandamus.

42. On the basis of these findings, the application for leave must be refused.

43. However, I should also make reference to one final matter.  During the course of submissions, Mr Fung, for the Secretary for Justice, said that I may care to consider whether the application for leave was not in substance an application seeking an advisory judgment.

44. The letter of 27 September 2004, said Mr Fung, was not a ‘decision’, as that term is understood in public law, made by a public body.  It was a letter setting out a point of view, giving advice.  It did not contain any ‘decision’.  No ‘decision’ could be made before the first sitting of the Council when the applicant sought to assume office.  In essence, said Mr Fung, the applicant had received advice that his intended oath would not be lawful.  Rather than seeking his own advice through private means the applicant had come to the court for advice.  However, said Mr Fung, our courts do not exercise a jurisdiction in terms of which advisory judgments are given in anticipation of a real dispute arising.

45. In my judgment, there is substance in Mr Fung’s observations.  As I have said, on several occasions during the course of his submissions, the applicant emphasised that he has doing no more than seeking the advice of this court as to whether, if he proceeded to take his amended oath rather than the prescribed oath, he would be acting in accordance with the Basic Law.

46. As to the question of costs, the respondent had sought costs.  The Secretary for Justice has not sought costs.  I have heard submissions on this matter and will give my ruling in due course.