CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. CLERK TO THE LEGISLATIVE COUNCIL

CACV 200/2017 & CACV 201/2017

[2019] HKCA 645

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) :

INTRODUCTION

1.  This Court handed down a judgment on 15 February 2019 ([2019] HKCA 173), dismissing the appellant’s appeal against the judgment of Au J (as he then was) in [2017] 4 HKLRD 115.  By two notices of motion filed on 15 March 2019, the appellant applies for leave to appeal against our judgment to the Court of Final Appeal.  He relies on both the “great general or public importance” limb and the “or otherwise” limb.  His application is opposed by the respondents.

2.  Having considered the written submissions, we take the view that the appellant’s application can be properly disposed of without an oral hearing.  We now hand down our judgment.

“GREAT GENERAL OR PUBLIC IMPORTANCE” LIMB

3.  The appellant has raised a total of 8 questions which he contends to be of great general or public importance that ought to be submitted to the Court of Final Appeal for determination.  They are :

“ (1) Is the power of the Standing Committee of the National People’s Congress (‘NPCSC’) to interpret the Basic Law (‘Basic Law’) of the Hong Kong Special Administrative Region (‘HKSAR’) of the People’s Republic of China (‘PRC’) derived exclusively from Article 158 of the Basic Law (‘BL158’)?

(2) In interpreting any provision of the Basic Law, does the NPCSC function under the system of law in force in the HKSAR, including, in particular, the common law, or the Mainland’s socialist legal system, or both?

(3) Do the courts of the HKSAR still have jurisdiction to examine whether an interpretation of any provision of the Basic Law by the NPCSC is consistent with the Basic Law and to declare it to be invalid if found to be inconsistent?

(4) Does the NPCSC have the power to interpret any provision of the Basic Law when the Court of Final Appeal has not sought an interpretation of that provision from it under BL158(3)?

(5) Does the NPCSC have the power to supplement any provision of the Basic Law?

(6) Does a supplementation (as opposed to clarification) of any provision of the Basic Law have retrospective effect?

(7) In the interpretation of Article 104 of the Basic Law (‘BL104’) by the NPCSC on 7 November 2016 (‘the Interpretation’), did the NPCSC supplement BL104?

(8)  In interpreting any article of the Basic Law, does the NPCSC have the power to interpret (whether by way of clarification or supplementation) or amend any of the laws in force in Hong Kong referred to (directly or indirectly) in that article?”

4.  The answers to Questions 1 to 6 are well-settled by authorities decided by the Court of Final Appeal and the Court of Appeal over the years : see Part D of our judgment. The appellant’s submissions, which are basically a repetition of his arguments advanced before us in the appeal, are plainly unarguable as the authorities now stand.  Further, as remarked by the Appeal Committee in Yau Wai Ching v Chief Executive of HKSAR (2017) 20 HKCFAR 390, at [36], the Court of Final Appeal saw no warrant to revisit the relevant propositions.  In such circumstances, we do not see any basis to refer any of Questions 1 to 6 to the Court of Final Appeal for determination.

5.  As to Questions 7 and 8, we dealt with all the appellant’s submissions in full at Part D6 of our judgment and explained why in our view, the Interpretation does not supplement BL104.  Questions 7 and 8 are plainly unarguable.

6.  Further, in our analysis, the Interpretation stated what the Hong Kong laws have always been on (1) the constitutional duty to take the Legco Oath; (2) the requirements for the manner of taking the Legco Oath; (3) taking the Legco Oath as a precondition to the assumption of office by a Legco member; and (4) the consequences of declining or neglecting to take the Legco Oath.  On the concurrent findings made by Au J and this Court, plainly the appellant had declined or neglected to take the Legco Oath when requested to do so on 12 October 2016 irrespective of the Interpretation.  Whether the Interpretation supplemented BL104 or any of the laws in force in Hong Kong will not affect the outcome of the case. Questions 7 and 8 are wholly academic in the circumstances.

7.  In consequence, we refuse to grant leave on the “great general or public importance” limb.

“OR OTHERWISE” LIMB

8.  The appellant contends that leave ought to be granted on the “or otherwise” limb for the following reasons :

“ (1) Grievous injustice will be done to the Applicant if the Court of Final Appeal does not intervene by overturning the Court of Appeal’s decision in refusing leave to the Applicant to adduce Professor Zhang Qianfan’s expert report on Mainland law in his appeal ([2018] HKCA 340), in that :

(a) In the Court of First Instance, Au J decided, on his own volition and by way of case management, not to hear any argument concerning the Interpretation since he considered himself bound by authority but specifically endorsed the right of Counsel for the Applicant and others to reserve their arguments on the Interpretation on appeal;

(b) Thus, when the Applicant sought leave from the Court of Appeal to adduce Professor Zhang Qianfan’s expert evidence for the purposes of the substantive appeal, it was the first opportunity for him to do so;

(c) The Court of Appeal rejected the Applicant’s said application mainly on the ground that the report ‘does not really assist [the Applicant] on his appeal’; and, in so doing, the Court of Appeal failed to appreciate that Professor Zhang Qianfan had actually dealt with the three key questions, namely, that : (a) the Mainland’s system to interpret laws is based on the socialist legal system; (b) the NPCSC’s power to interpret laws under Article 67(4) of the Constitution of the People’s Republic of China (‘PRC Constitution’) does not include the power to partially supplement laws, which is governed by Article 67(3) of the PRC Constitution instead; and (3) in any event, supplementations made by the NPCSC under Article 67(3) of the PRC Constitution do not have retrospective effect; and

(d)     In the Judgment, the Court of Appeal rejected the Applicant’s argument that under Article 67(4) of the PRC Constitution, the NPCSC can only interpret laws and cannot supplement laws as the latter can only be done under Article 67(3) of the PRC Constitution on the ground that the Applicant did not have any expert evidence on Mainland law 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 Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 (§30(1) of the Judgment).”

9.  In gist, the appellant is seeking leave to appeal against this Court’s judgment in [2018] HKCA 340, refusing to admit Professor Zhang’s report for the purpose of the appeal.

10.  However, in [2018] HKCA 543, we had already refused to grant him leave to do so.  The appellant’s subsequent application for leave to the Court of Final Appeal was also rejected by the Appeal Committee on 23 November 2018 in FAMV 58/2018 and FAMV 59/2018 under Rule 7(2) of the Hong Kong Court of Final Appeal Rules, Cap 484A, on the ground that it disclosed no reasonable grounds for leave to appeal.  Insofar as this Court is concerned, this is the end of the matter.  This second attempt by the appellant to apply for leave is an abuse of process and must be firmly rejected.  We refuse to grant leave on the “or otherwise” limb, too.

CONCLUSION

11.  For the above reasons, we dismiss the appellant’s two notices of motion with costs to the respondents, which we summarily assess at HK$68,000.00 for each of CACV 200/2017 and CACV 201/2017, totaling HK$136,000.00.  The appellant’s own costs are to be taxed in accordance with the legal aid regulations.