(16/01/2017) CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL

CACV 224/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 224 OF 2016

(ON APPEAL FROM HCAL NO 185 OF 2016)

_______________

CACV 225/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 225 OF 2016

(ON APPEAL FROM HCAL NO 185 OF 2016)

_______________

CACV 226/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 226 OF 2016

(ON APPEAL FROM HCMP NO 2819 OF 2016)

_______________

CACV 227/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2016

(ON APPEAL FROM HCMP NO 2819 OF 2016)

_______________

________________________

J U D G M E N T

________________________

Hon Cheung CJHC :

1.  I agree with the judgment of Poon JA.

Hon Lam VP :

2.  I respectfully agree with the judgment of Poon JA.

Hon Poon JA :

A. Introduction

3.  By a judgment handed down on 30 November 2016 (“the Main Judgment”), this Court dismissed Leung’s and Yau’s appeals with costs.  They now apply for leave to appeal to the Court of Final Appeal by 4 notices of motion all dated 28 December 2016.  On the same day, Lam VP directed the leave applications be heard on 13 January 2017.  However, the solicitors acting for both Leung and Yau immediately wrote to the court, requesting that, “in order to save all parties’ time and costs, and in light of the public interest of disposing of these proceedings expeditiously”, their applications be disposed of on paper.  The other parties having raised no objection, Lam VP on 29 December 2016 directed that the leave applications be processed on paper.

4.  Pursuant to Lam VP’s directions, Leung and Yau on the one hand and the Chief Executive and the Secretary for Justice on the other have lodged their respective submissions, which we have duly considered.  The President of the Legislative Council adopted a neutral stance in relation to the leave applications and did not file any written submissions.

5.  In the judgment below, I will adopt the same nomenclatures used in the Main Judgment.

B. Questions raised

6.  Pursuant to section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal in any civil cause or matter may be granted if :

“ the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision.”

7.  Both Leung and Yau argued that the questions involved in their appeals are ones which satisfy both the “great general or public importance” limb and the “or otherwise” limb under section 22(1)(b), thus entitling them to be granted leave to appeal to the Court of Final Appeal.

B1. Questions raised by Leung

8.  Leung has raised 5 questions :

(1) Does the non-intervention principle apply to the determination of whether a Legco member has declined or neglected to take the Legco Oath as required under section 21 of the Ordinance, and if so, to what extent?  (“Leung’s Question 1”)

(2) If the answer to Leung’s Question 1 is negative, what are the respective roles of the oath administrator and the court in determining whether a Legco member has declined or neglected to take the Legco Oath?  In particular, what is the extent of review by the Court?  (“Leung’s Question 2”)

(3) On a proper construction of section 21(1) of the Ordinance, whether vacation of office is automatic by operation of law?  (“Leung’s Question 3”)

(4) Whether the Interpretation has retrospective effect?  (Leung’s Question 4”)

(5) Whether the Interpretation amounts to an “amendment” of the Basic Law without complying with the prescribed procedure under article 159 of the Basic Law, so that the Interpretation is not made “in accordance with the provisions of the Basic Law and the procedure therein” and the courts of Hong Kong do have the duty to declare it to be invalid according to Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, at p 26A-B; and Ng Ka Ling v Director of Immigration (No 2) (1999) 2 HKCFAR 141 at p 142D-E.  (“Leung’s Question 5”)

B2. Questions raised by Yau

9.  Yau has raised 7 questions.  Some overlap with the questions raised by Leung, albeit couched in a more elaborate manner.  Some are specific to her application.  Her 7 questions are :

(1) Whether the courts of Hong Kong have the jurisdiction to do any of the following :

(a) consider and determine whether an interpretation or parts of an interpretation is or are by reason of its or their content not an interpretation of a provision of the Basic Law but is instead an amendment or partial amendment which has not been made in accordance with the procedure provided in article 159 of the Basic Law;

(b) consider and determine whether the Interpretation or parts of it is or are not an interpretation of a local law made by the Legco namely the Ordinance and to the extent it is an interpretation of a local law made by the Legco, it is not made under article 158(1) of the Basic Law;

(c) consider and determine whether the Interpretation which is silent as to the date of its commencement is not retrospective in its effect.  (“Yau’s Question 1”)

(2) Whether the principle whereby the Legco has exclusive control over the conduct of its own affairs extends to the matter of oath-taking by legislators within the Legco as required by the provisions of the Ordinance and in particular, whether the Legco may by its internal procedures and practice controls the manner of such oath-taking.  (“Yau’s Question 2”)

(3) Whether in relation to such oath-taking within the Legco, the purpose of which is to have the legislators sworn, the court should not intervene unless it is necessary for the protection of the constitutional rights of the Hong Kong permanent residents who voted for a duly elected legislator to take part in the conduct of public affairs through their freely chosen representative and of the constitutional rights of a duly elected legislator under articles 39, 77 and 78 of the Basic Law, article 25 of the International Covenant on Civil and Political Rights and article 21 of the Bill of Rights against the consequences of a decision by the President of the Legco in relation to such oath-taking.  (“Yau’s Question 3”)

(4) Whether a legislator is to be adjudged as having declined or neglected to take the Legco Oath required under section 21 of the Ordinance by reference to his solemnity or lack thereof, there being no express requirements in the Ordinance or in the Rules of Procedure or practice of the Legco as to the conduct or manner of taking the oath and/or by reference to his sincerity or lack thereof in light of his words or conduct at the time of oath-taking. (Yau’s Question 4”)

(5) Whether a legislator determined to have declined or neglected to take the Legco Oath is “ipso facto” automatically disqualified from being a Legco member or automatically ceases to hold office as a Legco member.  (“Yau’s Question 5”)

(6) Whether on a proper construction of section 73 of the Legislative Council Ordinance, Cap 542, the circumstances in which a person is disqualified from acting as a member are confined to the circumstances provided for in sections 15 and 72 of the same Ordinance.  (“Yau’s Question 6”)

(7) Whether the power or function of the Chief Executive under article 48(2) of the Basic Law to be responsible for the implementation of the Basic Law and other laws which apply in Hong Kong confers general authority upon the Chief Executive to institute legal proceedings other than through and in the name of the Secretary for Justice, for the purpose of enforcing the implementation of the Basic Law and laws which apply in Hong Kong.  (“Yau’s Question 7”)

C. The “great general or public importance” limb

10.  I will proceed on the basis that all Leung’s and Yau’s Questions are of great general and public importance.  However, identification or formulation of questions of great and general public importance per se is not sufficient.  Leung and Yau must also demonstrate that their appeals have reasonable prospects of success before leave could be granted on the “great general or public importance” limb.  This threshold is important. It ensures that the leave application as a screening process filtering out unarguable appeals is an effective one.  As will be seen shortly, despite their counsel’s efforts, both Leung and Yau have failed to pass the threshold meriting leave to be granted to them to appeal to the Court of Final Appeal.

11.  I will discuss Leung’s Questions first.

C1. Leung’s Questions

C1.1  Leung’s Question 1

12. Mr Pun, SC, for Leung, accepted that the constitutional requirements in article 104 of the Basic Law apply to the Legco.  However, he submitted that under the non-intervention principle, it is for the Legco itself, and not for the court, to decide how to apply the constitutional requirements under article 104 to the oath-taking by its members.  In the context of the present case, it is exclusively a matter for the Clerk to the Legco or the President of the Legco, as the case may be.  Thus the determination of whether a Legco member’s manner of oath-taking in a particular instance amounts to “decline” or “neglect” is within the purview of the occasion or the manner of the exercise of power by the Clerk or the President – with which the court should not interfere under the non-intervention principle.

13.  As was stated in the Main Judgment, in the Hong Kong context, the common law principle of non-intervention is necessarily subject to the constitutional requirements laid down by the Basic Law, which is supreme and binding on all authorities in Hong Kong, including Legco.  The Basic law entrusts the courts of the Hong Kong Special Administrative Region and the courts alone with the constitutional duty and power to adjudicate and determine on the compliance or otherwise of a constitutional requirement when disputes arose.  Article 104 of the Basic Law lays down a constitutional requirement on oath-taking by Legco members when assuming office.  The scope of the constitutional requirement necessarily embraces the consequence of its non-compliance.  When disputes as to whether the constitutional requirement under article 104 arose, only the courts can adjudicate and rule on the matter.  The Legco does not have the judicial authority to do so.  Neither does the Clerk nor the President.  As the oath-administrator, they perform a purely administrative function in determining if the oath was valid.  While they might form a view (with or without legal advice) on the validity of the oath, they do not perform any judicial function over the matter, as the courts do.

14.  If Mr Pun’s arguments were to be accepted, the application of the non-intervention principle in the present context would have the effect of divesting the courts of their constitutional duty and power, entrusted to them by the Basic Law, to adjudicate and determine if the constitutional requirement under article 104 is met; and vesting the same with the Clerk and the President, who have no judicial authority under the Basic Law whatsoever.  And in his analysis, the determination on the validity of the oath made by the Clerk or the President would be final, not to be disturbed by the courts.  The non-intervention principle could not possibly have such a displacing effect.  With respect, Mr Pun’s arguments must be wrong and are plainly unarguable.

C1.2  Leung’s Question 2

15.  Mr Pun posed this question in his submissions : when the oath administrator did not determine that the oath taker had declined or neglected to take the oath, should the court respect the views of the oath administrator (who has considered the demeanour and manner of the oath taker as well as the precedents of oath-taking in the past) and accord him a “discretionary area of judgment”?  He went on to submit that this is especially important when the solemnity or sincerity of an oath taker can be called into question by an elector or the Secretary for Justice through legal proceedings.  The oath administrator is placed in a much better position (as compared to the court) in making such judgment.  Further, as a matter of necessary implication, the oath administrator would have the power incidental to his duty to administer the oath to make a decision on the question of whether someone has declined or neglected to take the oath.  In the premises, Mr Pun reasoned, what extent of review the court should adopt in reviewing the oath administrator’s decision is a question of great general or public importance which ought to be determined by the Court of Final Appeal.

16.  As explained by the Chief Judge at [39]-[40] and by Lam VP at [79] of the Main Judgment, what is at stake is the compliance of a constitutional requirement of great significance.  It can admit of one answer only.  The court therefore conducts a full merit review to determine if the constitutional requirement under article 104 is met.  There is no room for giving deference to the views of the oath administrator who performs a purely administrative function, as if it were an ordinary judicial review involving an administrative decision, although the court may accord weight, as it deems fit, to the oath administrator’s views and the reasons for those views.  I am not persuaded by Mr Pun that any review other than a full merit review can suffice.

C1.3  Leung’s Question 3

17.  Mr Pun submitted that the determination of Leung’s Question 3 has far-reaching implications and if the vacation of office under section 21 of the Ordinance is automatic by operation of law, it would create considerable uncertainty on whether a Legco member still holds his office whenever he is alleged to have declined or neglected to take the Legco Oath in proceedings under section 73 of the Legislative Council Ordinance.

18.  The alleged implications and uncertainty identified by Mr Pun are no answer to Au J’s decision, upheld by this Court, that on a proper legal analysis, vacation of office under section 21 of the Ordinance is automatic by operation of law.

C1.4  Leung’s Question 4

19.  The answer to this Question is beyond doubt : the Interpretation dates from 1 July 1997 when the Basic Law came into effect.  It declared what the law has always been : see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at p 326D; applied by the Chief Judge at [53] of the Main Judgment.

20.  Mr Pun harked back to his point that an interpretation only applies retrospectively if it merely clarifies the law in question but not when it supplements it.  But it has already been firmly rejected by the Chief Judge at [54]-[55] of the Main Judgment, citing Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, pp 222J-223C.  Mr Pun has not advanced any new counter argument to persuade me that the distinction he tried to draw between an interpretation which clarifies the law and one which supplements it as to when the interpretation applies, is real.

C1.5  Leung’s Question 5

21.  Mr Pun submitted this Question concerns the jurisdiction and duty of the Hong Kong courts in face of an interpretation in name but an amendment of the Basic Law in substance purportedly issued by the NPCSC.  He pointed out that the concepts of interpretation and amendment are separate and distinct under article 158 and article 159 of the Basic Law respectively.  Citing Prem Singh v Director of Immigration (2003) 6 HKCFAR 26, where the Court of Final Appeal held at [73] that it is to the common law principles of interpretation that the courts look in construing the Basic Law, Mr Pun argued that the courts of Hong Kong are perfectly capable of construing the words “interpretation” and “amendment” under articles 158 and 159 by applying the common law principles of interpretation without the need to refer to their meanings under the Mainland’s civil law system.  Mr Pun further submitted that when the two judgments of the Court of Final Appeal in the Ng Ka Ning case are read together, it is clear that the courts of Hong Kong have both the jurisdiction and duty to question any act of the NPCSC which is not done “in accordance with the provisions of the Basic Law and the procedure therein”.  Implicit in this submission is his contention that the Interpretation is an “amendment” and hence not an interpretation made in accordance with the provisions of the Basic Law and the procedure therein.

22.  It is of course well settled that Hong Kong courts apply the common law principles in interpreting the Basic Law.  But it does not follow that the courts can simply apply the common law principles of interpretation in approaching a contention that an interpretation of the Basic Law made by the NPCSC is in substance an amendment and not an interpretation, and hence not a valid interpretation.  In my view, the following indisputable propositions underpinning the “one country, two systems” in the Basic Law should be firmly borne in mind when such a contention arose.

23.  First, the Basic Law was enacted by the National People’s Congress pursuant to section 31 of the Chinese Constitution on 4 April 1990, to be put into effect as of 1 July 1997.

24.  Second, the Basic Law is a national law as well as the constitution of the Hong Kong Special Administrative Region : see Ng Ka Ning, supra, p 26C.

25.  Third, the NPCSC derives the power to interpret the Basic Law, a national law, from article 67(4) of the Chinese Constitution which confers on it the function and power to interpret statues. The Basic Law itself provides in article 158(1) that the power of interpretation of this Law shall be vested in the NPCSC.  In short, NPCSC’s power to interpret the Basic Law originates from article 67(4) of the Chinese Constitution and is contained in article 158(1) of the Basic Law.  Its power of interpretation of the Basic Law is in general and unqualified terms : see Lau Kong Yung, supra, p 323B-C; Chong Fung Yuen, supra, p 222G-H.

26.  Fourth, in interpreting the Basic Law, the NPCSC functions under a system which is different from the system in Hong Kong, namely the Mainland system.  Under the Mainland system, the interpretation given by the NPCSC is a legislative interpretation.  And such a legislative interpretation can clarify or supplement laws :  Chong Fung Yuen, supra, pp 222J-223A.

27.  Fifth, the authority of the NPCSC to interpret the Basic Law is fully acknowledged and respected by the courts of Hong Kong.  An interpretation of the Basic Law by the NPCSC in accordance with the provisions of Basic law is binding on the courts.  They are duty bound to follow and apply the interpretation : see Ng Ka Ning (No 2), supra, p 142D-E; Lau Kong Yung, supra, 322D-324E; Chong Fung Yuen, supra, pp 222J-223E.  This is the effect of the Basic Law implementing the “one country, two systems” principle.  Both systems being within one country, the NPCSC’s interpretation made in conformity with article 158 under a different system is binding in and part of the system in Hong Kong : Chong Fung Yuen, supra, p 223C.

28.  With the above propositions firmly in mind, it can be immediately seen that the validity or otherwise of a legislative interpretation made by the NPCSC pursuant to article 158(1) of the Basic Law can only be determined by reference to the Mainland system.  Mr Pun’s reliance on the common law principles of interpretation of the Basic Law is wholly misplaced. His argument that the Interpretation is in substance an amendment must likewise be rejected when it is indisputable that a legislative interpretation by the NPCSC under the Mainland system, like any civil law system, can supplement the law concerned.

29.  Mr Pun heavily relied on the two judgments of the Court of Final Appeal in Ng Ka Ning, in particular, the first one, in support of his argument that the courts of Hong Kong have both the jurisdiction and duty to question any act of the NPCSC which is not done “in accordance with the provisions of the Basic Law and the procedure therein”. However, as the Chief Judge pointed out at [58] of the Main Judgment, the Court of Final Appeal in Ng Ka Ning (No 2) clarified in no uncertain terms that the courts in Hong Kong cannot question the authority of the National People’s Congress of the NPCSC to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.  In my view, the Chief Judge’s view is amply supported by the jurisprudence developed by the Court of Final Appeal on this point subsequent to the Ng Ka Ning cases, as summarized by the third to fifth propositions above.

30.  This disposes of all the Leung’s Questions. I next turn to Yau’s Questions.

C2. Yau’s Questions

C2.1  Yau’s Question 1

31.  Ms Li, SC for Yau submitted that the obligation of the Hong Kong courts to be bound by an interpretation of the Basic Law is founded upon the Basic Law itself and the constitutional framework of the Hong Kong Special Administrative Region, including articles 17, 18, 159 and 22.  She contended that without the courts being generally authorized and empowered to consider and determine whether in substance, any of those provisions of the Basic Law had been breached, there would be no protection of Hong Kong under “one country, two systems” and effectively, no rule of law. She submitted that the courts of Hong Kong have the jurisdiction to examine for the purposes of determining within Hong Kong whether any acts of the NPCSC are consistent with the Basic Law and the jurisdiction and duty to declare them to be invalid if found to be inconsistent, as held in Ng Ka Ning, is a legal principle which had not been disturbed by Ng Ka Ning (No 2) and subsequent interpretations of the Basic Law.  She submitted that in neither Lau Kong Yung or Chong Fung Yuen has the allocation of jurisdiction/power of the Hong Kong courts, in particular those issues posed in Yau’s Question 1, been fully considered.

32.  With respect, Ms Li’s submissions do not detract from any of the propositions underpinning the “one country, two systems” in the Basic Law which I have set out above.  I do not find her submissions arguable in light of the clear and unequivocal statement of the relevant principles in Lau Kong Yung and Chong Fung Yuen.

33.  Turning more specifically to Yau’s Question 1(b), Ms Li submitted that Hong Kong courts have the jurisdiction to consider and determine the matter raised.  She argued the requirement that the oath “must be in accordance with law” in article 104 of the Basic law refers to the manner and form requirements to be found in Part IV of the Ordinance.  The Interpretation must be in accordance with the Basic Law.  When in substance it superadded something to section 21 of the Ordinance, it is not a valid interpretation of article 104.

34.  Again with respect, Ms Li’s submission totally ignored that as a legislative interpretation under the Mainland civil law system, the Interpretation can supplement article 104 of the Basic Law.  Her submission is untenable.

C2.2  Yau’s Questions 2 and 3

35.  These two Questions concern the applicability of the non-intervention principle in the context where the constitutional requirement in article 104 is engaged.  Ms Li’s submissions do not add much to Mr Pun’s.  For the reasons which I have stated in Part C1.1 above, Ms Li’s submissions are plainly unarguable.

36.  I would add that Yau’s Question 3 is exactly the kind of situation identified by Lam VP at [74] of the Main Judgment.  But that is not the only scenario that the court would intervene.  The court must also intervene in the converse situation as Lam VP described at [75] when the constitutional rights of the voters to have a by-election are engaged in such situation.  Limiting the circumstances under which the court would intervene as Yau’s Question 3 seeks to do, is wholly unwarranted.

C2.3  Yau’s Question 4

37.  Ms Li submitted that this Question concerns the construction of the Ordinance.  Essentially, she submitted that the issue arises in the absence of the Ordinance containing any express requirements as to solemnity or sincerity.

38.  With respect, the issue cannot possibly arise in light of the unequivocal common law position to the contrary : see [27] of the Main Judgment.  Further, the same requirement of solemnity and sincerity can now be found in §2(2) of the Interpretation.  Even in the absence of any express requirement in the provision itself, section 21 must be interpreted in accordance with §2(2) of the Interpretation.

C2.4  Yau’s Question 5

39.  This Question is plainly unarguable : see Part C1.3 above.  Ms Li has not advanced any argument to persuade me otherwise.

C2.5  Yau’s Question 6

40.  This Question is also unarguable.

41.  As pointed out by the Chief Judge at [46] of the Main Judgment, it is a fallacy to treat section 15 of the Legislative Council Ordinance as exhaustive.  For it is not.

42.  Section 72 of the Legislative Council Ordinance concerns election petitions, which is clearly one of the situations capable of rendering a Legco members’ office vacant.  It reinforces the proposition that section 15 is not exhaustive.

C2.6  Yau’s Question 7

43.  Ms Li submitted that the interpretation given by Au J and this Court confirming that the Chief Executive has the locus to bring the proceedings below under article 48(2) in his own official capacity has the effect of overriding section 73(7) of the Legislative Council Ordinance and potentially the time limit provided in section 73(2).  Ms Li further argued that allowing the Chief Executive to act as a separate party overthrows the convention of the Hong Kong Government acting through the Secretary for Justice and raises an additional issue whether in any litigation where the issue of the proper implementation of the Basic Law or other laws arises, the Chief Executive has to be a party to such litigation simply because he/she is responsible for their implementation.

44.  I need not dwell on her arguments.  Suffice it to say that she has not been able to answer the points made by the Chief Judge at [49]-[50] and by Lam VP at [82]-[83] of the Main Judgment on the Chief Executive’s locus in the present context.  Further, whether the Chief Executive has locus in any other set of proceedings must be fact-sensitive, depending on the actual circumstances of the case.  One cannot determine it in vacuum.

C3. Conclusion

45.  For the above reasons, I would refuse to grant leave to either Leung or Yau on the “great general or public importance” limb.

D. The “or otherwise” limb

46.  Mr Pun made the short point that there are exceptional features in this case which merit leave to be granted on the “or otherwise” limb.  Ms Li did not make any separate submissions on this limb.

47.  It is the usual practice for the Court of Appeal not to grant leave on this limb but leave the question to for the Appeal Committee of the Court of Final Appeal to decide : see Lau Cho Kun v Lau Siang Kok Lionel, CACV 212/2012, unreported, 16 October 2013, [17], and Pacific Electric Wire & Cable Company Ltd v Texan Management Ltd, CACV 93/2012, unreported, 28 January 2014, [33].  Following this practice, I would also refuse to grant leave to Leung and Yau on this limb.

E. Disposal

48.  I would dismiss all the notices of motion filed by Leung and Yau.

49.  Costs should follow the event.  In the statement of costs dated 4 July 2017, the Chief Executive and the Secretary for Justice claimed a total costs of HK$335,702 for the four applications and asked for an apportion of 25% of the total costs to each of them.  Looking at the matter in the round, I find the total costs claimed reasonable and would allow them in full.  I also agree that the costs should be apportioned as requested.  I would therefore make an order that for the four leave applications :

(1) Leung do pay to the Chief Executive and the Secretary costs in the sum of HK$83,925.50 in each of CACV 224/2016 and CACV 227/2016, totaling HK$167,851.00;

(2) Yau do pay to the Chief Executive and the Secretary costs in the sum of HK$83,925.50 in each of CACV 225/2016 and CACV 226/2016, totaling HK$167,851.00;

(3) There be no order as to costs between the President of the Legislative Council and each of the other parties in each of CACV 224/2016, CACV 225/2016, CACV 226/2016 and CACV 227/2016.

 

Hon Cheung CJHC :

50.  Accordingly, the four notices of motion seeking leave to appeal are dealt with by the orders as indicated in [48] and [49] above.