郭卓堅 v. 林鄭月娥香港特區行政長官及另一人

HCAL 630/2018

[2018] HKCFI 800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 630 OF 2018

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DECISION

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1.  In this application for leave to apply for judicial review, the Applicant complains that:-

(1) the Chief Executive, by requiring the Legislative Council to pass as law the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill which was introduced to the Legislative Council by the Government on 26 January 2018, has acted contrary to Article 48(2) of the Basic Law; and

(2) the Chief Executive, by designating a part of the West Kowloon Station as the Mainland Port Area which will be subject to the Mainland’s jurisdiction in accordance with the Co-operation Arrangement between the Mainland and the HKSAR and the laws of the Mainland, has acted contrary to Article 2 of the Basic Law. 

2.  The present application has plainly no merits. In so far as the first complaint is concerned, it is clear that the Chief Executive has no power to compel the Legislative Council to pass the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill. Although the Bill is presented by the Government, it is a matter entirely for the Legislative Council to decide whether to pass the Bill.  The Legislative Council exercises its powers pursuant to Section 3 of Chapter IV of the Basic Law, and is not bound to pass any bill which may be introduced by the Government.  It cannot, in my view, be said that the Chief Executive, by merely causing or directing the Government to introduce a bill to the Legislative Council which may, or may not, be rejected by the Legislative Council, has acted contrary to Article 48(2) or any other provisions of the Basic Law.  In so far as the Applicant’s true complaint lies in the alleged unconstitutionality or illegality of the proposed legislation, such complaint will be dealt with in paragraph 3 below. 

3.  The second complaint is, in substance, the same complaint that was made by the Applicant in his earlier application in HCAL 453/2017, namely, that the proposed Co-location Arrangement is unconstitutional or illegal.  As the court held in its decision on that application handed down on 27 September 2017, whether the proposed Co-location Arrangement is unconstitutional or illegal is a matter to be considered after the “Three-step Process” has been completed.  The third step, ie, domestic legislation giving effect to the proposed Co-location Arrangement, is currently on-going before the Legislative Council.  It is entirely inappropriate for the court to intervene in the legislative process at this stage.  It is also not open to the Applicant to slightly tweak his complaint and seek to re-litigate the same issue in a fresh application for judicial review.  The present application is, in my view, an abuse of the court’s process. 

4.  In the Form 86 dated 13 April 2018, the Applicant has, in addition to the Chief Executive, named the Hon Mrs Regina Ip as the Second Putative Respondent.  Although Mrs Ip is, as the court understands, the chairperson of the Bills Committee on Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill, it is not alleged in either the Form 86 or the Applicant’s affirmation filed in support of the leave application that Mrs Ip has made any decision or done any act which is sought to be challenged by way of judicial review.  The indiscriminate naming of Mrs Ip as the Second Putative Respondent to this application is, in my view, also an abuse of the court’s process. 

5.  For the above reasons, the application for leave to apply for judicial review is dismissed.