SECRETARY FOR JUSTICE v. LEUNG KWOK HUNG

CACV 200/2017 & CACV 201/2017

[2019] HKCA 173

CACV 200/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 200 OF 2017

(ON APPEAL FROM HCMP NO 3382 OF 2016)

AND

CACV 201/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 201 OF 2017

(ON APPEAL FROM HCAL NO 224 OF 2016)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

1.  This is an appeal brought by the appellant, Mr Leung Kwok Hung, against the judgment of Au J (as he then was) dated 14 July 2017.[1]

A.     BACKGROUND

2.  Pursuant to article 104 of the Basic Law (“BL104”) and the relevant provisions of the Oaths and Declarations Ordinance, Cap 11 (“ODO”), all newly elected members of the 6^th Legislative Council were required to take the Legislative Council Oath (“Legco Oath”[2]) at the first meeting on 12 October 2016.  As it turned out, the manner and way in which certain members, including the appellant, purported to take the Legco Oath gave rise to much controversy.  In consequence, the Chief Executive of the HKSAR and the Secretary for Justice commenced separate sets of legal proceedings against 6 of such members, including the appellant.[3]

3.  The appellant purported to take the Legco Oath in the following manner :[4]

“ 116. … [After the Clerk to Legco] called Mr Leung’s name requesting Mr Leung to walk up to the table at the centre of the chamber to take the Legco Oath in accordance with the predetermined order, Mr Leung, who was wearing a black t-shirt with the words “公民抗命”[5] printed thereon, walked down the hallway to the table, carrying an opened yellow umbrella (with many words written thereon, including “結束一黨專政”[6]) in his right hand and a paper board showing the words “人大831決議”[7] (with a cross on it) in his left hand and shouted in Cantonese “雨傘運動！不屈不撓！公民抗命！無畏無懼！人民自主自決！無須中共批准！我要雙普選！梁振英下台！”.[8]

117. When Mr Leung reached the oath-taking table, he put the paper board on the table, continued holding the yellow umbrella in his right hand and said the following in Cantonese (“the Statement”) :

“ 得未？係用中文定英文定上海話？我揀咗中文，唔好意思呀。聽住各位，係好莊嚴架。兩年之前人民喺出面，爭取雙普選，俾人拉俾人打。”[9]

118. Mr Leung then paused for around two seconds and started reading words of the Legco Oath in Cantonese with a much louder voice and in a truncated manner as follows (with the opened yellow umbrella in his right hand) :

“ 本人(pause)梁國雄(pause)，謹以至誠(pause)，據實聲明(pause)及確認(pause)，本人(pause)就任(pause)中華人民(pause)共和國(pause)香港(pause)特別(pause)行政區(pause)立法會議員(pause)，定當擁護(pause)《中華人民共和國[said hurriedly] (pause)香港(pause)特別行政區(pause)基本法》(pause)，效忠(pause)中華人民(pause)共和國(pause)香港(pause)特別行政區(pause)，盡忠職守(pause)，遵(pause)守法律[in low voice](pause)，廉潔奉公(pause)，為香港(pause) [in louder voice]特別行政區(pause)服務。”[10]

 119. Around one second after he had read out the words of the Legco Oath, Mr Leung (a) shouted “撤銷人大831決議！我要雙普選！”;[11] (b) put down the yellow umbrella on the table, opened with the top of the umbrella pointing away from him; (c) tore a piece of paper with the words “人大831決議”[12] (without a cross on it) into pieces while shouting “撤銷人大831決議！撤銷人大831決議！我要雙普選！人民自主自決！無須中共批准！”;[13] (d) threw the pieces of paper away towards the ceiling; and (e) left where he had been standing with his other props.”

4.  The appellant then left the table at the centre of the Chamber.  The Clerk did not say anything and had effectively decided his purported oath-taking as valid.

5.  On 7 November 2016, the National People’s Congress Standing Committee (“the NPCSC”) exercised its power under article 67(4) of the Constitution and article 158(1) of the Basic Law to interpret BL104 (“the Interpretation”).

B.     PROCEEDINGS BELOW

6.  In the proceedings below, the Chief Executive and the Secretary for Justice contended that the Clerk’s said decision was unlawful because, as a matter of law, the appellant should be regarded as having declined or neglected to take Legco Oath, and thereby be disqualified from taking up the office of a Legco member.  The appellant argued that what he did in taking the Legco Oath was legally compliant; or alternatively if it was not in strict compliance with the legal requirements, he did not in law decline or neglect to take the Legco Oath.

7.  Au J held that, as a constitutional and mandatory requirement, a member-elect to Legco must properly and validly take the Legco Oath both in form and in substance as required by the law before he could assume office.  In his legal analysis,[14] the Judge accepted that the Interpretation is binding on all the courts in Hong Kong.  He derived from the Interpretation, the proper construction of the relevant provisions of the ODO and the relevant case law three requirements that a Legco member must fulfill when making the Legco Oath, namely, (1) the Exact Form and Content Requirement; (2) the Solemnity Requirement; and (3) the Substantive Belief Requirement.

8.  On the appellant’s purported oath-taking, Au J found :

“ 123. As I have explained above, under the Solemnity Requirement, as a matter of law, an oath maker must take the Legco Oath in a solemn and sincere manner which is objectively consistent with and commensurate with the constitutional importance of the oath taking ceremony and procedure, and the seriousness of the pledges of allegiance enshrined in the oath.

124. Moreover, given the fundamental constitutional importance of the requirement to take the Legco Oath, and the utmost seriousness expected of the oath taker in making the constitutionally required pledges in the oath, the objective solemnness and sincerity required of in the procedure should be such that the oath taker must take the oath in such a formal and dignified manner that demonstrate to a reasonable person the oath taker’s high degree of respect and seriousness given to the oath taking procedure and the oath itself. This is also to demonstrate to the public the oath taker’s sincere and substantive belief in pledging his allegiance as required by the constitution.

125. In my view, the manner in which Mr Leung took the oath goes well outside an objective reasonable range of such requisite solemnity and sincerity :

(1) The ceremony and procedure of the oath taking is to serve only one purpose, that is for the oath taker to comply with the constitutional requirements to take the oath in the form and substance as prescribed and required by BL104 and the ODO. Hence, the ceremony and procedure demands a solemnity and sincerity that underline this only purpose.

(2) However, the holding of an umbrella, in particular with it opened, in the oath taking ceremony clearly simply does not accord in any reasonable way with the importance and seriousness of the taking of an oath as the ceremony’s only purpose.

(3) Similarly, the chanting of slogans and the tearing of the paper with the message on it are also acts and conducts which were totally unrelated to the taking of the oath itself.

(4) Clearly in my view, these theatrical acts viewed objectively had rendered the occasion without the requisite dignity and respect that was consistent with the constitutional importance and seriousness of the oath taking exercise.

(5) Further, viewed against the above theatrical conducts, the Statement (with the words “係好莊嚴架”) uttered by Mr Leung just before he purportedly took the Legco Oath was, as submitted by the Plaintiffs, plainly a sarcastic remark as objectively appeared to a reasonable person suggesting precisely the opposite.

 126. In the premises, on any objective view, the above acts and conducts of Mr Leung, whether viewed independently or collectively, show that Mr Leung did not take the Legco Oath with the requisite solemnity and sincerity as required by the law.  He therefore failed to satisfy the Solemnity Requirement.

 127. Moreover, Mr Leung’s chanted slogans were all carried out after he had been requested by the Clerk to the Legco Oath, and close to and after the reading of the Legco Oath.  In the circumstances, viewed objectively, I also agree with Mr Mok that it is clear that Mr Leung also sought to incorporate as part of the oath taking itself additional worded messages through his chanted slogans.  For the reasons I have set out at paragraphs 91 and 92 above, he also therefore failed to comply with the Exact Form and Content Requirement.  The oath taking is unlawful and invalid.”

9.  The Judge therefore concluded :

“ 128. Again, there is no doubt that he intended to adopt and carry out those acts and conducts, which objectively viewed did not comply with the Solemnity Requirement and the Exact Form and Content Requirement. Mr Leung therefore declined or neglected to take the Legco Oath when requested to do so on 12 October 2016. He should since 12 October 2016 be disqualified in law from assuming the Office, and there is no question of retaking the oath.”

C.     GROUNDS OF APPEAL

10.  The appellant raised 7 Grounds of Appeal.[15]

11.  Mr Martin Lee, SC (together with Mr Carter Chim and Ms Senia Ng), for the appellant, adopted the primary position that the Interpretation is, by reason of Grounds 1 to 3, not valid or binding on the Hong Kong courts and does not in any event have retrospective effect.

(1) Ground 1 contends that the Interpretation was not a true or proper interpretation of BL104 because, by virtue of articles 5, 8, 18 and 158 of the Basic Law and article 67(3) and (4) of the Constitution of the PRC, the NPCSC is not entitled to supplement any provision of the Basic Law when interpreting it under BL158.

(2) Ground 2 contends that insofar as the Interpretation was in the nature of a supplementation of BL104, it should not, according to common law, have retrospective effect.

(3) Ground 3 contends that the Interpretation usurped the functions of the HKSAR Legco as it purports to interpret the ODO by supplementing it, which the NPCSC is not entitled to do under articles 2 and 17 of the Basic Law.

12.  Mr Lee’s alternative position is that even if the Interpretation is valid, binding and has retrospective effect, the Legco Oath taken by the appellant was nevertheless valid by reason of Grounds 4 to 7.

(1) Ground 4 complains that the requirements for taking the Legco Oath are not prescribed by law because unless the ODO is amended at the statutory level to give effect to the requirements imposed by the NPCSC in the Interpretation at the constitutional level by providing sufficiently clear guidance and objective and reasonable criteria at the statutory level, the requirements of oath-taking pursuant to the Interpretation, in the absence of such statutory guidance and criteria, cannot satisfy the “prescribed by law” requirement and are thus unconstitutional.

(2) Ground 5 argues that as long as the member-elect takes the Legco Oath in a way and manner that accords with the Legco Practices,[16] the legal requirement of solemnity is fulfilled and the Judge erred in disregarding the appellant’s legitimate expectation that, in the absence of any notification to the members’ elect to the contrary, the Legco Practices and the previous rulings of the President of Legco would continue to be adopted as the only benchmark in determining the validity of his oath-taking on 12 October 2016.

(3) Ground 6 contends that in determining if a member-elect’s oath taking accords with the requisite solemnity and sincerity, the court should give a wide margin of deference and/or substantial weight to the decision of the Clerk or the President who are better placed than the court in making such a determination.

(4) Ground 7 challenges various findings by the Judge in support of his conclusion that the appellant had failed to meet the Solemnity Requirement and the Exact Form and Content Requirement.

13.  We will first consider Grounds 1 to 3 together.  As said, they all concern the validity, scope and effect of the Interpretation.

D.     GROUNDS 1 TO 3 – VALIDITY, SCOPE AND EFFECT OF THE INTERPRETATION

D1.    An impermissible challenge

14.  In Yau Wai Ching v Chief Executive of HKSAR (2017) 20 HKCFAR 390, the Appeal Committee, after referring to the jurisprudence on the NPCSC’s power to interpret the Basic Law, held :[17]

“ 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 art.31 of the Constitution of the PRC. The NPCSC’s power to interpret the Basic Law derives from art.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. 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. An interpretation of the Basic Law issued by the NPCSC is binding on the courts of the Hong Kong Special Administrative Region. It declares what the law is and has always been since the coming into effect of the Basic Law on 1 July 1997.

 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.”

15.  By mounting the challenges against the validity, scope and effect of the Interpretation, Mr Lee effectively asked us to revisit those fundamental propositions laid down by the Court of Final Appeal authoritatively over the years.  But when the Appeal Committee, as recently as 1 September 2017 (the date of its judgment in Yau Wai Ching), saw no warrant for revisiting those fundamental propositions, such a course is not open to this Court.  Mr Lee submitted that the Appeal Committee’s judgment in Yau Wai Ching is not binding on us because it is not a determination by the full Court of Final Appeal, citing HKSAR v Ma Zhujiang [2007] 4 HKLRD 285, at [39] in support.  We do not consider Mr Lee’s reliance on that case could take him any further. We first note that the Court of Appeal there did not actually decide the point but, just for the purposes of the appeal before it, accepted the proposition.  But the fundamental propositions summarized by the Appeal Committee are all derived from previous judgments of the Court of Final Appeal which are binding on this Court.  By applying those undisputable fundamental propositions to the Interpretation, the Appeal Committee concluded that the Interpretation is binding on all the courts of Hong Kong, which must include this Court, as regards the true construction of BL104 on 12 October 2016.

16.  In our view, the Appeal Committee’s judgment in Yau Wai Ching is a complete answer to Mr Lee’s challenges against the validity, scope and effect of the Interpretation.  Indeed, Mr Lee accepted in his oral submissions that if we take the view that the Appeal Committee’s judgment in Yau Wai Ching is binding on us, that is the end of Grounds 1 to 3.  In any event, as we will demonstrate shortly, Mr Lee’s attack on the validity, scope and effect of the Interpretation is, on a closer analysis, doomed to fail.

D2.    Mr Lee’s submissions

17.  Mr Lee mounted the challenge against the validity, scope and effect of the Interpretation by firstly submitting that the courts of Hong Kong have the duty to determine whether an interpretation of the Basic Law by the NPCSC, if challenged, is in compliance with all the conditions stipulated in BL158 by adopting the common law approach, and if compliant, to determine the scope with which such interpretations applies in Hong Kong.  In support, Mr Lee referred to Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, at pp.25A-B where Li CJ said that the courts of Hong Kong had the jurisdiction to examine whether any legislative acts of the NPC or the NPCSC were consistent with the Basic Law and to declare them to be invalid if found to be inconsistent.  Although in Ng Ka Ling v Director of Immigration (No 2) (1999) 2 HKCFAR 141, at p.142D-E, the Court of Final Appeal said that it could not question the authority to the NPC or the NPCSC to do any act which is in accordance with the provisions of the Basic Law and the procedure therein, Mr Lee submitted that Ng Ka Ling (No 2) did not resile from Ng Ka Ling so that if any act of the NPC or the NPCSC is inconsistent with the provisions of the Basic Law, the courts of Hong Kong can declare it invalid.

18.  Mr Lee then embarked on an analysis of various articles of the Basic Law and the Constitution concerning the power of the NPCSC to interpret the Basic Law.  Focusing first on the NPCSC’s power to interpret the Basic Law under BL158(1), Mr Lee argued :

(1) While the NPCSC’s power to interpret the Basic Law under article 67(4) of the Constitution is unlimited, it is limited under BL158(1).  The NPCSC’s power to interpret the Basic Law under BL158(1) is not “a general and unqualified one”, contrary to the decision of the Court of Final Appeal in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300. It is a limited one because the NPCSC’s power to interpret the Basic Law comes from BL158 as a whole, so that it must “consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation of this Law” under BL158(4).  Nor should BL158(2) or (3) be ignored.  In other words, BL158(1) is not a free-standing provision.  Read together with BL158(2) and (3), the NPCSC can only exercise its power to interpret the Basic Law when there is a case referred to it by the Hong Kong court.

(2) Even if there is no judicial referral under BL158(3), the NPCSC can interpret the Basic Law but cannot supplement it by way of interpretation.  For there is simply no provision for supplementation in the Basic Law.

(3) BL158 (interpretation of the Basic Law) should be considered with BL159 (amendment of the Basic Law).  Under both articles, the powers given to the NPCSC are express and specific.  Under BL158, it may interpret the Basic Law.  Under BL159, it may only propose bills for amendments to the Basic Law to be submitted to the NPC for action.  No power of supplementation is given to the NPCSC or indeed the NPC.  Importantly, BL159(4) provides that no amendment to the Basic Law shall contravene the established basic policies of the PRC regarding Hong Kong.[18] One of the PRC’s established policies is that the legislative power of the Hong Kong Special Administrative Region shall be vested in the Legislative Council.  That established policy is now enshrined in BL17.  But by making the Interpretation, the NPCSC had in effect legislated for the Hong Kong Special Administrative Region by supplementing the provisions of the ODO, thereby usurping the functions of the Legislative Council in contravention of that established policy and indeed BL17.  It would be bizarre, if not absurd, if the NPC is prevented from amending the Basic Law as would contravene the established policies of the PRC regarding Hong Kong, and yet this can be done with impunity by its subordinate, the NPCSC, by way of partial supplementation of the Basic Law, even though it cannot make the slightest amendment to the Basic Law.

19.  Turning to article 67(4) of the Constitution, Mr Lee went on to submit :

(1) The NPCSC cannot supplement the Basic Law under article 67(4) either.  Under article 67(4), the NPCSC can only interpret laws but it cannot supplement laws.  Its power to partially supplement laws is conferred by article 67(3).  So the opinion of Professor Lian Xisheng adduced in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, cited by Li CJ at p.221I-J, that under the Mainland system, the NPCSC, when interpreting laws, may further clarify the scope and make supplementation provisions, is wrong. Professor Lian appeared to have conflated the NPCSC’s power to interpret laws under article 67(4) with its power to partially supplement laws under article 67(3).

(2) In any event, Professor Lian appeared to be referring to the power of the NPCSC to interpret laws generally without being specific as to its power to interpret the Basic Law.  Under the Mainland system, the NPCSC does have the power to partially supplement laws under article 67(3) of the Constitution.  But it has no such power under the Basic Law.  Similarly, the general statement by the Court of Final Appeal in Chong Fung Yuen at pp.221H-I and 223A that under the Mainland system, legislative interpretation by the NPCSC can clarify or supplement laws is not specific as to the NPCSC’s power to interpret the Basic Law.  As such, it is an obiter dictum not binding on this Court.

(3) The courts of Hong Kong should interpret article 67(4) of the Constitution in accordance with the common law approach, that is, to consider the meaning of the language in the light of its context and purpose.  The result of such purposive interpretation is that the word “interpret” in both article 67(4) and BL158(1) should only be construed as “clarify” and not also as “supplement”.

20.  In the end, Mr Lee submitted that the Interpretation, in the nature of supplementation, is invalid and the courts of Hong Kong should so declare.

21.  With respect, most if not all of Mr Lee’s arguments are flatly contradicted by an array of well-established authorities decided by the Court of Final Appeal and the Court of Appeal.

D3.    No jurisdiction to examine validity

22.  First and foremost, Mr Lee’s argument on the jurisdiction of the courts of Hong Kong Special Administrative Region to examine the validity of an interpretation of the Basic Law made by the NPCSC must be rejected.  Whatever the Court of Final Appeal might have said or might have been perceived to have said in Ng Ka Ling, the Court of Final Appeal had clarified in unequivocal terms in Ng Ka Ling (No 2), ibid:

“ the Court’s judgment in [Ng Ka Ling] did not question the authority of [the NPCSC] to make an interpretation under [BL158] which would have to be followed by the courts of the Region. The Court accepts that it cannot question that authority. Nor did the Court’s judgment question, and the Court accepts that it cannot question, the authority of [the NPC] or [the NPCSC] to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.”

23.  Since Ng Ka Ling (No 2), it has been well settled that the courts of Hong Kong have no jurisdiction to examine and determine if any act done by the NPC and the NPCSC in accordance with the provisions of the Basic Law and the procedure therein is valid or not.  In case of an interpretation of the Basic Law by the NPCSC under article 67(4) of the Constitution and BL158, it is binding on all courts of Hong Kong and they are under a duty to follow it.  For more authorities by the Court of Final Appeal on the point, see further Lau Kong Yung and Chong Fung Yuen; and Yau Wai Ching.  A recent authority of the Court of Appeal on the same point is Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460.  There, Cheung CJHC (as Cheung PJ then was), after rejecting the argument that the Interpretation was only an interpretation in name but an amendment of the Basic Law in substance which could only be done by the NPC in accordance with BL159, said at [58] – [59] :

“ 58. But more importantly, this present argument raises an a priori question of whether under the Basic Law, the courts of the Hong Kong Special Administrative Region have ever been vested with the jurisdiction to determine whether an interpretation officially promulgated as such by the NPCSC in accordance with art.67(4) of the Constitution and art.158 of the Basic Law and the procedure therein is invalid on the ground under discussion. Apart from citing to the Court a passage in [Ng Ka Ling] which must be read together with [Ng Ka Ling (No 2)] where the Court of Final Appeal clarified in no uncertain terms that the courts in Hong Kong cannot question ‘the authority of [the NPC] or [the NPCSC] to do any act which is in accordance with the provisions of the Basic Law and the procedure therein’. Mr Pun has simply made no submission on this fundamental question of jurisdiction.

59. In my view, the Court has no jurisdiction to deal with the issue raised.”

24.  The Interpretation expressly stated that it was made by the NPCSC under article 67(4) of the Constitution and BL158(1) after consulting the Committee of the Basic Law of the Hong Kong Special Administrative Region under the NPCSC.  It is thus an officially promulgated interpretation in accordance with article 67(4) of the Constitution and BL158(1) and the procedure contained in BL158(4).  As the authorities now stand, the courts of Hong Kong simply have no jurisdiction to determine if the Interpretation is invalid on the grounds relied on by Mr Lee.

D4.    Applicability of article 67(4) of the Constitution

25.  The next general point in Mr Lee’s submissions that we must reject concerns the applicability of article 67(4) of the Constitution in the Hong Kong Special Administrative Region.  Mr Lee accepted that under both article 67(4) of the Constitution and article 158(1) of the Basic Law, the NPCSC is empowered to interpret the Basic Law.  In his written submissions, Mr Lee submitted that since the Constitution is not included under BL18 and Annex III to the Basic Law, article 67(4) of the Constitution has no application in Hong Kong.  Thus, the courts of Hong Kong need not have regard to article 67(4) when considering an interpretation of the Basic Law issued by the NPCSC.  However, in his oral submissions, Mr Lee took a significant turn.  He said he had to accept that the Constitution is applicable to Hong Kong as the establishment of the Hong Kong Special Administrative Region would have no other constitutional foundation other than article 31 of the Constitution.  He however submitted that by enacting the Basic Law, the NPC and the NPCSC have by way of self-restraint circumscribed the exercise of their powers under the Constitution by the provisions of the Basic Law.  Therefore, the applicability of any provision in the Constitution must be subject to any contrary provision in the Basic Law.  On that basis, Mr Lee also agreed that the Constitution has to be read together with the Basic Law to determine the NPCSC’s powers, including the power to interpret the Basic Law.  In short, as we understand him, Mr Lee no longer maintained the argument in his written submissions that Hong Kong courts need not have regard to article 67(4) of the Constitution in considering an interpretation of the Basic Law issued by the NPCSC under BL158.

26.  Even if maintained by Mr Lee, we do not consider it a viable argument.  As explained by Li CJ in Lau Kong Yung, at p.322D-E and Chong Fung Yuen, at pp.222J-223D :

(1) Article 67(4) of the Constitution confers on the NPCSC the function and power to interpret laws, including the Basic Law which is a national law.  BL158(1) also provides that the power to interpret the Basic Law shall be vested in the NPCSC.

(2) In interpreting the Basic Law, the NPCSC functions under the Mainland system, which is different from the system in Hong Kong.

(3) When the NPCSC makes an interpretation of a provision of the Basic Law, whether under BL158(1) or BL158(3), the courts of Hong Kong are bound to follow it.  Thus the authority of the NPCSC to interpret the Basic Law is fully acknowledged and respected in the Hong Kong Special Administrative Region.  This is to give effect to the Basic Law implementing the “one country, two systems” principle.  Both systems being within one country (of which, we emphasise, Hong Kong is an unseparable part), the NPCSC’s interpretation made in conformity with BL158 under the Mainland system is binding in and part of the system in Hong Kong.

27.  It is thus established by the Court of Final Appeal that when the NPCSC interprets the Basic Law under BL158, it functions under the Mainland system, within which it derives the power to interpret laws, including the Basic Law, from article 67(4) of the Constitution. And the NPCSC’s authority to interpret the Basic Law under the Mainland system pursuant to article 67(4) of the Constitution is fully acknowledged and respected in Hong Kong.  Indeed, such an interpretation by the NPCSC is binding in and part of the system in Hong Kong.  Hong Kong courts must have and in fact have always had regard to article 67(4) of the Constitution, which is the primary source of the NPCSC’s power to interpret the Basic Law, in approaching an interpretation it made under BL158.  This explains why the courts in Hong Kong fully accept that the NPCSC’s power to interpret the Basic Law under BL158(1) is general and unqualified.  It is so because, as Hong Kong courts accept, under article 67(4) of the Constitution, its power to interpret laws is general and unqualified.  This also explains why the NPCSC can supplement a provision of the Basic Law when interpreting it.  It is so because, as Hong Kong courts also accept, under article 67(4) of the Constitution, it can supplement laws when interpreting them.

D5.    The NPCSC’s power to interpret the Basic Law

28.  Coming to the specific arguments raised by Mr Lee on the NPCSC’s power to interpret the Basic Law under various article of the Basic Law and article 67(3) and article 67(4) of the Constitution, we do not consider any of them valid either.

29.  As to Mr Lee’s various submissions on the NPCSC’s power to interpret the Basic Law under BL158 :

(1) The same argument that the NPCSC could interpret the Basic Law under BL158(1) only when there was a judicial reference under BL158(3) was firmly rejected by the Court of Final Appeal in Lau Kong Yung at p.323B-H :

“ This argument cannot be accepted. It is clear that the Standing Committee has the power to make the Interpretation. This power originates from art.67(4) of the Chinese Constitution and is contained in art.158(1) of the Basic Law itself. The power of interpretation of the Basic Law conferred by art.158(1) is in general and unqualified terms.

That power and its exercise is not restricted or qualified in any way by art.158(2) and 158(3). By art.158(2), the Region’s courts are authorized to interpret on their own in adjudicating cases the provisions within the limits of the Region’s autonomy. The words ‘on their own’ underline the absence of a duty to refer the provisions in question to the Standing Committee for interpretation in contrast to the mandatory requirement relating to the excluded provisions provided for in art.158(3). That provision enables the courts to interpret provisions other than those within the limits of the Region’s autonomy but, where the conditions provided for are satisfied, obliges the Court of Final Appeal not to interpret the excluded provisions and to seek an interpretation from the Standing Committee. So, there is no question of art.158(3) restricting the Standing Committee’s general power in art.158(1). That provision is directed to limiting the Court’s power by requiring a judicial reference of the excluded provisions in the circumstances prescribed.

In any event, the entire scheme of art.158 is inconsistent with the argument that restrictions are to be implied from art.158(2) and 158(3) on the general power of interpretation conferred by art.158(1).  The authority given by art.158(2) to the courts of the Region stems from the general power of interpretation vested in the Standing Committee.  Article 158(3) extends that authority but subject to a qualification requiring a judicial reference.  The reference results in the making by the Standing Committee of an interpretation which proceeds from the general power vested in it by art.158(1).  Mr Chang SC’s submission, if it were accepted, would deny to the Standing Committee power to interpret provisions in the Basic Law other than the excluded provisions.  Such a limited power of interpretation would be inconsistent with the general power conferred by the art.158(1).”

Li CJ reaffirmed the same point in Chong Fung Yuen at p.222G-H.

(2) The argument that the NPCSC cannot supplement the Basic Law when interpreting it under BL158 because there is no provision for supplementation in the Basic Law is misconceived.  For it ignores the fact that when the NPCSC interprets the Basic Law, it functions under the Mainland system and under that system, legislative interpretation by the NPCSC can clarify or supplement laws : see Chong Fung Yuen at p.223.

(3) The argument based on the combined effect of BL158 and BL159 presupposes that the Interpretation is a supplementation of BL104 and the ODO.  But as will be seen shortly, a closer analysis of the terms of the Interpretation, BL104 and the provisions of the ODO properly construed will demonstrate that presupposition is wrong.  The very basis for raising that argument simply does not exist.

30.  Mr Lee’s various arguments on article 67(4) of the Constitution fail to sufficiently recognize that when the NPCSC interprets the Basic Law, it operates under the Mainland system, a system different from ours.  More specifically :

(1) The argument that under article 67(4), NPCSC can only interpret laws and cannot supplement laws as the latter can be done only under article 67(3), is based on Mr Lee’s own reading of the two articles.  But as said, when NPCSC interprets laws under article 67(4), it operates under the Mainland system.  How to properly read articles 67(4) and 67(3) is necessarily a matter of the Mainland law.  With respect, Mr Lee and indeed any common law lawyer who is untrained in the Mainland system, is not qualified to make such a submission.  In the absence of any evidence to contradict Professor Lian’s view that NPCSC could supplement laws when interpreting them, which had been accepted by the Court of Final Appeal in Chong Fung Yuen, Mr Lee simply has no basis to submit that Professor Lian had conflated NPC’s powers under article 67(4) and 67(3).

(2) The argument that Professor Lian in Chong Fung Yuen made no reference to the Basic Law under which the NPCSC has no power to supplement has no substance.  Under article 67(4), the NPCSC can supplement laws, including national law such as the Basic Law.

(3) The argument that the general statement of the Court of Final Appeal in Chong Fung Yuen that under the Mainland system legislative interpretation by the NPCSC can clarify or supplement laws is not specific as to NPCSC’s power to interpret the Basic Law and hence is only an obiter dictum, is misconceived.  In Chong Fung Yuen, the Court of Final Appeal was dealing with the Director’s contention that the Court should seek an interpretation of article 24(2)(1) of the Basic Law from the NPCSC pursuant to BL158(3).  The Court rejected that contention.  It was in such context that the Court of Final Appeal made the statement concerned.  Properly understood in its context, that statement must concern specifically an interpretation of the Basic Law by the NPCSC under BL158.

(4) The argument that Hong Kong courts should interpret article 67(4) of the Constitution in accordance with the common law approach is wrong.  The Constitution is a feature and indeed the cornerstone of the Mainland system.  Interpretation of the Constitution must be approached by reference to the Mainland civil law system.  There is simply no substance in the contention that one should apply the purposive construction under the common law to the word “interpret” in both article 67(4) of the Constitution and BL158, thereby arriving at the conclusion that it should only be construed as “clarify” and not also “supplement”.[19]

D6.    Supplementation

31.  Mr Lee next mounted two challenges against the scope and effect of the Interpretation.  He argued that as a supplementation of BL104, the Interpretation should not have retrospective effect.  Further, as a supplementation of the ODO, the Interpretation usurps the functions of the Legco by enacting local laws.  The Judge should have construed the Interpretation as a view expressed by the NPCSC as to how legislators should take the Legco Oath in future.  The Interpretation thus has no effect at the time when the appellant took his Legco Oath.  As will be seen below, there is no substance in Mr Lee’s pivotal contention that the Interpretation is a supplementation of BL104 and the ODO.  We will deal with his contention on retrospectivity later.

32.  In our view, whether the Interpretation is a supplementation calls for a closer scrutiny of, on the one hand, the established law regarding the duty to take the Legco Oath, the requirements for the manner in which the Oath is to be taken, the consequences of declining or neglecting to take the Legco Oath, the role of the oath administrator and the court; and on the other, the terms of the Interpretation regarding those matters.

33.  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.”

34.  The Interpretation states :

“ 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.”

35.  With BL104 and the Interpretation in mind, we look at the matters listed at [32] above more specifically.  For the purpose of this appeal, we shall focus on para.2 of the Interpretation.

D6.1  Constitutional duty to take the Legco Oath

36.  BL104 imposes a constitutional duty on members of Legco to swear to uphold the Basic law and to swear allegiance to the Hong Kong Special Administrative Region : Chief Executive of HKSAR v President of the Legislative Council, at [27], Yau Wai Ching, Appeal Committee, at [21].  The Interpretation at para.2 reinforces the same constitutional duty : Yau Wai Ching, Appeal Committee at [21].

D6.2  The requirements for the manner of taking the Legco Oath

37.  BL104 does not spell out the exact terms of the oaths to be taken or the requirements that an oath taker must meet when taking the oath.  It only requires the oath taker to do it “in accordance with law”.  Apart from the Interpretation, that law is the ODO : Yau Wai Ching, Appeal Committee, ibid.

38.  Relevantly for present purposes, the ODO provides in :

(1) Section 16 stipulating that the Legco Oath shall be in the form as set out in Schedule 2.

(2) Part IV of Schedule 2 prescribing the Legco Oath 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.”

(3) Section 19 mandating the time when a Legco member shall take the Legco Oath and depending on the occasion, the identity of the oath administrator (either the Clerk or the President or any member acting in his place).

(4) Section 21 setting out the consequences of non-compliance thus :

“ 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.”

39.  Under a purposive construction with BL104 and the relevant common law on oath-taking in mind, the above provisions of the ODO entail the following legal requirements for taking the Legco Oath.

40.  First, the content of the Legco Oath, being fixed by statute, must be strictly adhered to if a Legco member is to take the oath in accordance with law : Leung Kwok Hung v Legislative Council Secretariat, HCAL 112/2004, unreported, 6 October 2004, per Hartmann J (as he then was) at [27]; Chief Executive of HKSAR v President of the Legislative Council, per Cheung CJHC, [27].[20]

41.  Second, the Legco Oath must be taken in a solemn and sincere manner : Yau Wai Ching, Appeal Committee at [30]; Chief Executive of HKSAR v President of the Legislative Council, per Cheung CJHC, ibid.[21]

42.  Third, as under the common law taking an oath in a form of attestation by which the oath taker signifies that he is bound in conscience to conduct himself as the terms of the oath dictate, the Legco member taking the Legco Oath must sincerely believe in and strictly abide by the pledges contained therein when he or she takes it : Chief Executive of HKSAR v President of the Legislative Council, per Cheung CJHC, ibid, approving Chief Executive of HKSAR v President of the Legislative Council [2016] 6 HKC 417, per Au J at [31] – [33].[22]

43.  The above requirements are now expressly set out in the Interpretation, at para.2(2) : Yau Wai Ching, Appeal Committee, at [30].

D6.3  A precondition to the assumption of office

44.  Taking the Legco Oath is a prerequisite and precondition to the assumption of the office by a Legco member : Chief Executive of HKSAR v President of the Legislative Council, per Cheung CJHC, at [27].  This is also plain from the wording of BL104 itself.  There is no basis to suggest that it is not a substantive requirement or that the taking of the Oath is a mere formality.

45.  The Interpretation expressly stipulates the same precondition at para.2(1).

D6.4  Declining or neglecting to take the Legco Oath

46.  Whether a Legco member fails to meet any of the above requirements in taking the Legco Oath is to be determined objectively : see Chief Executive of HKSAR v President of the Legislative Council, per Cheung CJHC, ibid; Yau Wai Ching, Appeal Committee, at [30].  When he does this intentionally, the Legco member shall be regarded in law as having declined or neglected to take the Legco Oath forthwith under section 21 of the ODO.  He shall either vacate the office or be disqualified from entering on it, as the case may be, forthwith.  The consequences for declining or neglecting to take the Legco Oath is automatic and are part of the constitutional requirement under BL104 : Chief Executive of HKSAR v President of the Legislative Council, per Cheung CJHC, at [30]; Yau Wai Ching, Appeal Committee, at [28].[23]

47.  The Interpretation states the same consequences for declining or neglecting to take the Legco Oath at para.2(3).

D6.5  Role of the oath administrator and the court

48.  The Clerk or the President of Legco administering the taking of the Legco Oath plays purely an administrative role.  The court is the final arbiter on the question whether a Legco member has declined or neglected to take the Legco Oath : Chief Executive of HKSAR v President of the Legislative Council, per Cheung CJHC, at [32] – [33], per Lam VP at [72] – [78], per Poon JA at [86] – [87]; Yau Wai Ching, Appeal Committee, at [21] – [24].

49.  The Interpretation does not expressly say that the court is the final arbiter.  But in Chief Executive of HKSAR v President of the Legislative Council, Cheung CJHC at [36] firmly rejected the argument that under para. 2(4) of the Interpretation, it is for the oath administrator, rather than the court, to decide if the Legco Oath has been validly taken, or whether the purported oath taker has declined or neglected to take the oath.  In a like vein, in Chief Executive of HKSAR v the President of the Legislative Council, CACV 224, 225, 226 & 227/2016, unreported, 16 January 2017, in refusing the applicants in those cases leave to appeal to the Court of Final Appeal, Poon JA rejected the same argument at [14].

D6.6  Not a supplementation

50.  It is plain from the above analysis that on the various matters discussed in this appeal, the Interpretation, properly understood, states what the Hong Kong law has always been.  Insofar as those matters are concerned, the Interpretation does not supplement BL104 or the ODO as contended.  The contention that the Interpretation is a supplementation of BL104 and the ODO is erroneous.

D6.7  Not usurping the functions of Legco

51.  Since the Interpretation does not have the effect of supplementing the ODO as contended, there is no substance in Mr Lee’s challenge that by issuing the Interpretation, the NPCSC had usurped the functions of Legco by enacting statutory law at the statutory level by supplementing the ODO in contravention of the PRC Government’s established policy regarding Hong Kong and BL17.

D7.    Retrospectivity

52.  Lastly, we come to Mr Lee’s contention that the Interpretation as a supplementation cannot operate retrospectively from 1 July 1997.  This question is not engaged in light of our conclusion that the Interpretation is not a supplementation.  In any event, such a contention is not maintainable in light of the authorities, which laid down the proposition that an interpretation of the Basic Law issued by the NPCSC under BL158(1) has retrospective effect back to 1 July 1997 as it states what the law has always been since the coming into effect of the Basic Law on that date.  Nevertheless, Mr Lee argued that the authorities do not stand in his way because :

(1) In Lau Kong Yung, the Court of Final Appeal relied on the common law declaratory theory of judicial decisions to hold that the interpretation issued by the NPCSC of the Basic Law  in 1999 in that case took effect on the operation of the Basic Law, that is, 1 July 1997. However, the Court of Final Appeal was not then made aware of the possibility that the NPCSC might supplement the Basic Law when it interprets it.  It was not until two years later that the Court of Final Appeal in Chong Fung Yuen took into account Professor Lian’s opinion dated 10 August 1999 adduced by the Director of Immigration and held, by way of obiter dictum, that in interpreting the Basic Law, the NPCSC can clarify and supplement laws.

(2) In other words, it was only two years after the Court of Final Appeal made its decision in Lau Kong Yung that it was informed, in Chong Fung Yuen, of the possibility that the NPCSC might supplement the Basic Law when interpreting it.  The Court of Final Appeal’s ruling in Lau Kong Yung regarding the retrospective effect of an interpretation of the Basic Law should be understood as a ruling only on the temporal effect of a clarification, as opposed to a supplementation.  To date, there has been no direct judicial authority in Hong Kong based on expert evidence on PRC law that both clarification and supplementation in an interpretation of the Basic Law should take effect on 1 July 1997.

(3) Thus, the Court of Final Appeal’s statement in Lau Kong Yung on the retrospectivity of an interpretation of the Basic Law issued by the NPCSC is not a binding authority insofar as the interpretation is a supplementation, as opposed to a clarification, of the Basic Law is concerned. 

53.  In Lau Kong Yung, the Court of Final Appeal was dealing with BL22(4) and BL24(2)(3) and the interpretation on it issued by the NPCSC.  BL22(4) provides :

“ For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region.”

BL 24(2)(3) stipulates :

“ The permanent residents of the Hong Kong Special Administrative Region shall be … Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2).”

The full text of the interpretation issued by the NPCSC, containing two clauses, was set out at pp.320B-321C of the Court’s judgment.  For present purposes, it is not necessary to repeat the interpretation here.

54.  After going through the terms of interpretation, Li CJ held that clause 1 had the effect of linking BL22(4) and BL24(2)(3) in that under the interpretation, as a matter of Basic Law, permanent residents of the Hong Kong Special Administrative Region by descent (BL24(2)(3)) must obtain exit approval from the Mainland authorities and must hold the one-way permit before entry into Hong Kong (p.325H-I); and that the interpretation has the effect that permanent residents by descent are within BL22(4) (pp.325I-326B).  In our view, clause 1 is arguably a supplementation of BL22(4) and BL24(2)(3). The positon is even clearer with clause 2.  It stated that BL24(2)(3) means both parents of such persons, whether born before or after the establishment of the HKSAR, or either of such parents must have fulfilled the condition prescribed by category (1) or (2) of BL24(2) at the time of their birth.  Li CJ held that the effect of clause 2 is that BL24(2)(3) means that the person concerned must have at least one parent who was a permanent resident within BL24(1) or BL24(2) at the time of birth of the person concerned.  The time limit at the time of birth is definitely a supplementation to BL24(2)(3).  So when the Court of Final Appeal held that the interpretation had retrospective effect, it must have had in mind that it was a supplementation as well as clarification.  It is therefore wrong to suggest, as Mr Lee did, that the Court of Final Appeal was only made aware of the fact that an interpretation of the Basic Law by the NPCSC could supplement laws two years later in Chong Fung Yuen.  And its ruling in Lau Kong Yung on retrospectivity of an interpretation of the Basic Law by the NPCSC did not draw any distinction between clarification and supplementation. It must apply to both.

55.  Even assuming that the above analysis of Lau Kong Yung is incorrect, and assuming that the Court of Final Appeal was not aware of the possibility the NPCSC could supplement laws when interpreting the Basic Law until Chong Fung Yuen, the Court of Final Appeal did not in Chong Fung Yuen draw any distinction between clarification and supplementation when it reaffirmed that an interpretation of the NPCSC has retrospective effect from 1 July 1997.  Indeed, in all subsequent authorities, when the Court of Final Appeal is already fully aware of such possibility, the Court has consistently reaffirmed the retrospective effect of an interpretation of the Basic Law by the NPCSC under BL158(1) without drawing any distinction between clarification and supplementation.  That proposition has also been consistently applied and adopted at lower courts including this Court : see e.g., Chief Executive of the HKSAR v President of the Legislative Council, per Cheung CJHC at [53].  We therefore reject Mr Lee’s submission that there is no direct binding authority on the retrospective effect of an interpretation of the Basic Law issued by the NPCSC under BL158(1).

56.  Mr Lee also sought to rely on an extra-judicial speech delivered by Tang PJ (as he then was) at Oxford, England, on 22 February 2018 where he suggested that the question of retrospectivity of an interpretation of the Basic Law by the NPCSC could be re-visited by the Court of Final Appeal.[24] With respect, it is no more than a personal, extra-judicial opinion expressed by Tang PJ.  It is not a binding authority.

57.  This disposes of the question whether the Interpretation, as an interpretation of the BL104 by the NPCSC under BL158(1), has retrospective effect since 1 July 1997.  The answer must be yes.

58.  Insofar as it is contended that the Interpretation is a supplementation of the ODO and hence the Judge should only regard it as a view expressed by the NPCSC as to how legislators should take the Legco Oath in future, we have already held that the Interpretation is not a supplementation of the ODO.  This contention must be rejected.

D8.    Conclusion

59.  In consequence, none of the challenges mounted by Mr Lee against the validity, scope and effect of the Interpretation succeeds.  We are able to come to the same conclusion as the Appeal Committee did in Yau Wai Ching.  Grounds 1 to 3 must therefore fail.

60.  We now consider Grounds 4 to 7 in turn.  As said, they presuppose that the Interpretation is valid and binding on all the courts of Hong Kong.  As it has retrospective effect since 1 July 1997, it is a true construction of BL104 on 12 October 2016 when the appellant purportedly took the Legco Oath.

E.     GROUND 4 – PRESCRIBED BY LAW

61.  Mr Lee argued that the requirements of taking the Legco Oath have to be “prescribed by law” since they are the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in BL104.  As such, they constitute restrictions on the appellant’s right to stand for election and right to take part in the conduct of public affairs.  At the statutory level, insofar as a discretionary power is given to the Clerk and/or the President under section 19 of the ODO to determine whether a legislator elect has declined or neglected to take the Legco Oath, an adequate indication of the scope of the discretion must be given to satisfy the constitutional requirement of “prescribed by law”.  However, to date, the ODO has not been amended at the statutory level to incorporate the constitutional requirements of oath-taking set out in the Interpretation; and thus does not provide any or any sufficiently clear guidance to the oath administrator as to how he should exercise his discretion in determining whether an oath is properly taken.  The imposition of such requirements as the statutory level is thus unconstitutional.  Further, the requirements of oath-taking are not formulated with sufficient precision to enable the citizen to regulate his conduct in that the citizen is unable to foresee, to a reasonable degree, the consequences of his actions.  In particular, clear and definite guidelines are necessary, and cannot be replaced by “objective common sense” as the Judge held.[25]

62.  With respect, Mr Lee’s arguments are wrong.

(1) Neither the Clerk nor the President of the Legco has any discretionary power to determine whether a legislator-elect has declined or neglected to take the Legco Oath under section 21 of ODO.  As held by this Court in Chief Executive of the HKSAR v The President of Legislative Council, they are oath administrators.  And it is for the courts, and the courts alone, to determine if the constitutional requirements under BL104 and the legal requirements under the ODO have been satisfied.

(2) The ODO need not be amended to incorporate the constitutional requirements on oath-taking.  The courts simply interpret the ODO by adopting a purposive construction, taking into account its purpose and context, including BL104.  Put slightly differently, as Mr Benjamin Yu SC (with Mr Johnny Mok SC, Mr Jimmy Ma and Mr Jenkin Suen) rightly submitted, the ODO is to be construed against BL104 (as interpreted by the Interpretation) as a purposive unity.  This neither necessitates nor requires amendment of the ODO.

(3) There is no substance in the complaint that the requirements of oath-taking are not formulated with sufficient precision or based on objective and reasonable criteria.  As rightly held by the Judge, what the legal requirements entail is an objective assessment of the oath taker’s conduct against a permissible range of acts of the degree of solemnity regarded by an ordinary and reasonable person to be commensurate and consistent with the oath-taking occasion bearing in mind its importance and seriousness.  This is necessarily a fact-sensitive question to be determined objectively by the court on the particular circumstances of the case.  For convenience, the Judge used the shorthand “objective common sense”.  But it does not mean that the test rightly adopted by him is vague or deficient in the way as contended.

63.  Ground 4 must for the above reasons fail.

F.     GROUND 5 – LEGITIMATE EXPECTATION

64.  Mr Lee complained that the Judge erred in rejecting the appellant’s argument on legitimate expectation.[26] He submitted that in determining whether an oath taker’s words, conduct or acts would be regarded as falling within the reasonable range of the degree of solemnity, the Judge should have taken into account the appellant’s legitimate expectation that the clearly established Legco Practices would continue to be adopted as the benchmark for measuring solemnity in the oath-taking ceremony on 12 October 2016, in the absence of any notice to be contrary.  As a matter of fact, in three circulars sent by the Clerk to all member-elect,[27] no reference was made to any of the new requirements of oath-taking set out in the Interpretation, and the Clerk and/or the President never stated that the previous standards would no longer apply.

65.  Put very briefly, a legitimate expectation disentitles the decision-maker entrusted with the statutory power under discussion from exercising the power in its discretion in such a manner that is inconsistent with the representation which he made giving rise to the legitimate expectation.  Mr Lee’s reliance on legitimate expectation in the present context is wholly misplaced.  Here, for the determination if the constitutional and legal requirements of taking the Legco Oath have been complied with and the consequences of non-compliance, neither the Clerk nor the President is the ultimate decision maker.  The courts are.  And the questions of non-compliance and consequences of non-compliance are questions of law to be determined against the particular facts of the case.  Both questions can only admit of one answer.  None of them involve any discretion in determining the questions on the part of the oath administrator or indeed the courts.  There is no room for the doctrine of legitimate expectation to operate in the present context.

66.  Equally, Mr Lee’s reliance on the Legco Practices is also misplaced.  The Legco Practices are, at the most, past decisions by the Clerk or the President as oath administrator.  They cannot possibly bind the courts, the ultimate adjudicator on the questions of non-compliance and consequences of non-compliance, who have a constitutional duty to uphold the constitutional requirements under BL104.

67.  Ground 5 has no merit and we reject it.

G.     GROUND 6 – MARGIN OF DEFERENCE

68.  Mr Lee argued that there is no single right answer to the question whether the appellant had taken the Legco Oath solemnly and sincerely and the Clerk is better placed than the court in making this judgmental decision because the Clerk was present at the scene and was able to judge whether or not the appellant was sincere or solemn in taking the Legco Oath and the Clerk is more familiar with traditions and practices of the Legco and is in a better position to determine what would fall within the acceptable range or solemnity in the context of the Legco, which is a political forum with its own traditions and practices.  Mr Lee therefore submitted that the Judge should have accorded a wide margin of discretion and/or given substantial weight to the decision of the Clerk.

69.  As said, the validity of the taking of the Legco Oath by a member is a question of law to be determined by the courts by reference to the actual circumstances as to how it was taken.  Whether the court would take into account the Clerk’s decision and how much weight is to be attached to it are entirely a matter for the first instance court.  Unless it can be demonstrated that the first instance court had plainly erred, there is no basis for the Court of Appeal to interfere.   

70.  Here, as pointed out by Mr Yu, the Clerk did not provide any reasons why he considered the appellant’s Oath taking was valid.  It is thus not clear why he so decided.  In the circumstances, his decision is of little weight to the Judge.  Since the whole episode of how the appellant purported to take the Legco Oath was recorded by transcript and videotape, the Judge was in as good a position as the Clerk to view and assess the appellant’s conduct.  Mr Lee has not been able to satisfy us that the Judge had erred as contended.

71.  Ground 6 fails.

H.     GROUND 7 – FINDINGS BY THE JUDGE

72.  Mr Lee argued that oath-taking begins when a member-elect reads out the first word of the Legco Oath prescribed in Schedule 2 of the ODO, and ends when he/she reads out the last word thereof.  Oath-taking does not commence right after a member-elect is called upon to take the Legco Oath.  He therefore contended that the Judge therefore erred :

(1) In holding that since the appellant’s “chanted slogans were all carried out after he had been requested by the Clerk to take the Legco Oath, and close to and after the reading of the Legco Oath”, he had failed to comply with the Exact Form and Content Requirement; and

(2) In taking into account the words “係好莊嚴架” uttered by the appellant (which, it is submitted, was not a “sarcastic remark”) before taking the Oath when he held that the Solemnity Requirement was not met.

73.  Mr Lee further argued that a reasonable person would not objectively understand that the appellant “sought to incorporate in the oath taking itself additional message”.  In particular, on an objective assessment of the evidence, the appellant did not intend to incorporate as part of his Oath (i) the holding of an opened umbrella, (ii) the chanting of slogans, or (iii) the tearing of piece of paper with a message on it.  In any event, a reasonable person would not consider that the manner in which the appellant took the Oath went “well outside an objective reasonable range of such requisite solemnity and sincerity”.

74.  Mr Lee thus contended that the appellant had duly complied with the Solemnity Requirement and the Exact Form and Content Requirement in taking the Oath.

75.  Ground 7 is a challenge of the conclusion by the lower court on a question of fact.  Mr Lee has to surmount the high hurdle of convincing us that the findings made by the Judge below were plainly wrong before we can interfere : ZJW v SY, CACV 10/2017, unreported, 1 December 2017, per Poon JA at [26]-[32], especially 32(2).  What Mr Lee has agreed is essentially repeating the appellant’s case below.  That is hardly sufficient to show that the Judge was plainly wrong in his factual findings that the appellant failed to meet the Solemnity Requirement and the Exact Form and Content Requirement.

76.  We are not impressed by Mr Lee’s argument that the court should limit its consideration to what the oath-taker said and did in the duration between reading out the first and last word of the Legco Oath, thereby ignoring all other acts and words which, on an objective view, are found to have been intended to form part of the oath-taking conduct.  The limit advocated by Mr Lee is artificial and divorced from reality.

77.  We have carefully considered the evidence on how the appellant purportedly took the Legco Oath and the Judge’s evaluation and assessment of the evidence.  In our view, the Judge was perfectly entitled to make the factual findings as he did after a full merits review of the facts before him.  Contrary to Mr Lee’s contention, his findings are plainly right, not plainly wrong.

78.  Ground 7 fails.

I.     Dispositions

79.  For the above reasons, we dismiss the appellant’s appeal.

80.  Costs should follow the event.  We make an order nisi that the appellant is to pay the Chief Executive of the Hong Kong Special Administrative Region and the Secretary for Justice costs of the appeal, with a certificate for 2 counsel, to be taxed if not agreed.[28] The appellant’s own costs are to be taxed in accordance with the legal aid regulations.