郭卓堅 v. 林鄭月娥 香港特別行政區首長

HCAL 531/2018

[2018] HKCFI 756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 531 OF 2018

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DECISION

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1.  In this application for leave to apply for judicial review, the Applicant seeks a declaration that the Chief Executive has acted contrary to the Oath taken by her when assuming the office of the Chief Executive that she would uphold the Basic Law of the HKSAR.

2.  The background facts giving rise to the present application can shortly be stated as follows.  On 28 March 2018, Mr Benny Tai, an Associate Professor of the Faculty of Law of the University of Hong Kong, attended a forum in Taiwan and made a remark that, in certain hypothetical scenario, Hong Kong could consider becoming an independent state. 

3.  On 30 March 2018, the Government of the HKSAR issued a press release stating that “any advocacy of ‘Hong Kong independence’ runs against ‘One Country, Two Systems’ and the Basic Law as well as the overall and long-term interest of society of Hong Kong”.  The Government spokesman further stated that “[t]he Hong Kong Special Administrative Region Government is shocked by the remarks made by a university teaching staff member that Hong Kong could consider becoming an independent state, and strongly condemns such remarks.”  The reference to the “university teaching staff member” in the press release was, undoubtedly, a reference to Mr Tai. 

4.  In the Form 86, the Applicant alleges that after the issue of the press release, the Chief Executive named and condemned Mr Tai for making the aforesaid remark at the forum in Taiwan, and stated that his words contravened the “One Country, Two Systems” and the Basic Law.  The Applicant further alleges that the Chief Executive acted contrary to Articles 27 and 30 of the Basic Law, which guaranteed the freedom of speech and the freedom of communication of Hong Kong residents. 

5.  In my view, the present application is completely misconceived.  First, the words of the Chief Executive do not by themselves carry any legal consequence and do not amount to any decision which can properly form the subject matter of an application for judicial review. Second, as the Chief Executive of the HKSAR, she is plainly entitled to speak publicly on matters of public interest relating to Hong Kong.  There can be no basis whatsoever to suggest that the Chief Executive, by commenting on or criticizing a remark made by Mr Tai about the possibility of Hong Kong becoming an independent state in some hypothetical scenario, however far-fetched or unrealistic such hypothetical scenario may be, has infringed the freedom of speech or the freedom of communication of Mr Tai or any Hong Kong residents, or that the Chief Executive has acted contrary to the Basic Law or her Chief Executive Oath.  Third, the Applicant has no standing to complain about the words of the Chief Executive.  The person who is most directly affected by those words would be Mr Tai who, so far as is known to the court, has taken no legal action himself. 

6.  It must be emphasized that the court only deals with proper, justiciable, legal issues.  The court’s jurisdiction in judicial review should not be used by any person as a forum to air his/her political views. The present application is, in my view, plainly an abuse of the court’s jurisdiction in judicial review and an abuse process of the court’s process. 

7.  The application for leave to apply for judicial review is dismissed.