Kwok Cheuk Kin v. Secretary for Constitutional and Mainland Affairs

CACV 57/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 57 OF 2014

(ON APPEAL FROM HCAL NO. 72 of 2012)

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JUDGMENT

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Hon Cheung CJHC:

1.I will presently ask Lam VP to give the judgment of the court. I would like to add a few words of my own by way of introduction.

2.This appeal raises, amongst other things, the question of how, where the constitutional right sought to be restricted is a fundamental right, the proportionality test should be applied, particularly in terms of the degree of the margin of appreciation that should be accorded, when at issue is essentially a political question.

3.As I understand him, Mr Pun SC (for the applicant)’s main contention on appeal is that there is no legitimate aim for the restriction imposed by section 39(2A) of the Legislative Council Ordinance (Cap 542) on a resigned legislator’s constitutional right to stand in the by-election which the resignation was designed to trigger.  His arguments, putting it in my own way, essentially run along these lines:

(1) The right to stand in election is a non-absolute constitutional right.

(2) It may only be restricted, relevantly, if the restriction satisfies the proportionality test.

(3) While the proportionality test always contains the same three limbs: legitimate aim; rational connection and proportionate restriction, the intensity of scrutiny when applying the test differs depending on the nature of the right sought to be restricted.

(4) If the right is a fundamental right, the intensity of scrutiny is high.  If the right is a socio-economic right, the intensity is lower.

(5) A high intensity scrutiny means the margin of appreciation to be accorded to the government/legislature’s judgment is narrow or even minimal, and the restriction must be stringently justified; and vice versa.

(6) This applies to the application of all three limbs of the proportionality test, including, relevantly for this case, the identification of a legitimate aim, if any.

(7) The right to stand in election is a fundamental right, as opposed to a mere socio-economic right.  Therefore, it attracts a high intensity scrutiny when applying the proportionality test.  The margin of appreciation to be accorded to the government/legislature’s judgment is narrow and small.

(8) In particular, a high intensity scrutiny should be employed in examining whether there is a legitimate aim for the restriction when dealing with the first limb.  And the margin of appreciation to be accorded to the government/legislature’s judgment on legitimate aim is narrow and small.

(9) Resigning to trigger a by-election in order to renew/gain a mandate particularly on a controversial issue is a known and legitimate political manoeuvre in Western democracies.  There are reasonably held political views for and against such a practice.

(10) It is for the government/legislature to prove the legitimate aim.  To do so, they must establish that such a resignation practice amounts to an abuse of the resignation/by-election process which should be curbed.

(11) In this they must fail, given the divided views on such a practice.  And the government/legislature’s judgment carries relatively little weight, as a fundamental right is involved and therefore a high intensity review is called for and the margin of appreciation is narrow and small.

(12) Accordingly, the government/legislature cannot satisfy the first limb of the proportionality test for want of a legitimate aim.

(13) The restriction therefore fails the proportionality test and is unconstitutional.

4.With respect, the main fallacy of Mr Pun’s arguments lies in his failure to differentiate the different limbs involved in the proportionality test and the different issues that may be encountered when applying the three limbs of the proportionality test.  He simply uses the nature of the right involved as the only criterion to determine the intensity of scrutiny and the degree of the margin of appreciation to be accorded, and then apply them to determine all issues that are encountered when applying the proportionality test regardless of the nature of the issues involved.

5.It is true that generally speaking, the intensity of scrutiny varies with the nature of the right involved when applying the proportionality test.  But this is not the only relevant consideration.  The nature of each individual issue encountered on the facts of the case when applying the proportionality test is also highly relevant.  And different limbs of the test may throw up different issues of different nature.

6.Generally speaking, the court is neither constitutionally positioned nor institutionally equipped to deal with a political issue, that is, an issue essentially involving political rather than legal judgment, or for that matter, a complicated polycentric socio-economic issue raising sensitive questions of resource allocation.  This is so regardless of whether the right sought to be restricted is a fundamental right, and also whether the issue is encountered at the first limb or the third limb of the proportionality test.  For good reasons, the court should, generally speaking, accord the government/legislature a broad margin of appreciation regarding their discretionary judgment on such an issue.

7.Whether resigning with the aim to triggering a by-election in circumstances like the present case amounts to an abuse of the resignation/by-election process (or as Lord Pannick QC prefers to put it, a mischief) that should be curbed or remedied, is essentially a political question for the politicians and political scientists, not a court of law.  The court should accord a broad margin of appreciation to the conclusion that the government/legislature has reached on that question, and decide the first limb of whether there is a legitimate aim for the restriction accordingly.  This is so even though the government/legislature has decided to achieve that legitimate aim by restricting a fundamental right (the right to stand in the by-election), as opposed to, say, a socio-economic right (for instance, depriving the resigned legislator his right to receive social welfare benefits for 6 months).  For in either case, the political question remains a political one and its nature does not change; neither does the court’s inaptness to deal with it on its own without according a broad margin of appreciation to the government/legislature’s judgment.

8.In the nature of things, where (as here) the government/legislature has chosen to achieve the legitimate aim by restricting a fundamental right, that fact will likely feature prominently in the third limb of the proportionality test, that is, whether the restriction imposed is a proportionate measure in the sense that it is no more than is necessary.  And the more fundamental the right interfered with, the more stringent will the court examine the government/legislature’s arguments that the restriction is proportionate and is no more than is necessary to achieve the legitimate aim.  But even here, that is, when dealing with the third limb, issues essentially involving political or socio‑economic judgment may surface, and in relation to them, the same approach must be adopted even though the right involved is a fundamental right.  A due margin of appreciation must be accorded to the government/legislature’s decision on those issues, when deciding whether the restriction is or is not “no more than is necessary”.

Hon Lam VP:

9.Section 39(2A) of the Legislative Council Ordinance [“the LCO”] provides as follows:

“ A person is also disqualified from being nominated as a candidate at a by-election if –

(a) within the 6 months ending on the date of the by-election ----

(i) the person’s resignation under section 14 as a Member took effect; or

(ii) the person was taken under section 13(3) to have resigned from office as a Member; and

(b) no general election was held after the relevant notice of resignation or notice of non-acceptance took effect.”

10.In these proceedings, the provision was challenged by the Applicant as being inconsistent with the right to stand for election under Article 26 of the Basic Law [“BL 26”] and Article 21 of the Hong Kong Bill of Rights [“BOR 21”]. His application for judicial review was dismissed by Au J on 5 March 2014. The learned judge [“the Judge”] held that the restriction in s39(2A) is a proportionate restriction on the constitutional rights the Applicant relied upon and it is compatible with them.

11.The Applicant appealed against that judgment. After hearing submissions from counsel on 9 September, we reserved our judgment.

12.We now give our judgment.

13.The background leading to the amendment of the LCO to add s39(2A) in 2012 was set out by the Judge in his judgment. It was the aftermath of the concerted action of five legislative councillors in January 2010 resigning from their offices to engineer by-elections in 5 different geographical constituencies (thus comprising the whole of Hong Kong). Their objective was to trigger what they described as a “de facto referendum” on a political issue which is not relevant for present purposes. The by-elections were held on 16 May 2010 and the other major parties did not field candidates to participate in them. All 5 resigned members were re-elected.  The turnout rate for the by-elections was exceptionally low (17.19%) and the whole exercise cost about $126 million in public expenditure.

14.In light of that, the government conducted a review and put forward proposals to amend the LCO.  After public consultation, a Bill was introduced in 2012.  Eventually, after extensive and lengthy debates in the Legislative Council, the Bill was passed on 1 June 2012 and the amendments took effect on 1 October 2012.

15.In the judgment of 5 March 2014, the Judge referred to BL 26 and BOR 21 and examined the right to stand for election in our constitutional framework.  He correctly bore in mind that such a right is not absolute (and this is accepted by Mr Pun SC, before the Judge as well as before us).  However restrictions on that right must be in accordance with law (BL 26) and reasonable (BOR 21).  A restriction is reasonable if it passes the proportionality test.

16.There is no dispute that the restriction in s39(2A) is in accordance with law, being a restriction implemented through legislation.  Giving due margin of appreciation to the legislature and the government, the Judge held that s39(2A) satisfied the proportionality test and it was constitutionally compliant. 

17.In this appeal, the Applicant was represented by Mr Pun.  His arguments fall under three heads:

(a) The Judge adopted the wrong test in considering whether the restriction is compatible with the constitutional right to stand for election;

(b) The Judge erred in concluding that there was a legitimate aim[1]; and

(c) The Judge erred in holding that the restriction is proportionate.

18.At the hearing, Mr Pun fairly accepted that the crucial issue in this appeal is whether a legitimate aim exists though counsel also submitted that this court should clearly set out the proper formulation of the proportionality test in view of what he submitted to be the wrong approach adopted by the Judge.

The proper approach and the formulation of the proportionality test

19.There is no dispute that the rights under BL 26 and BOR 21 are engaged and, notwithstanding the passing of the amending legislation by the legislature, it is ultimately for the court to decide as a question of law whether the restriction in s39(2A) is consistent with these constitutionally protected rights, see Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 para 56.

20.Further, it is not disputed that the right to stand for election is not an absolute right[2], the court should apply what is known in Hong Kong as the proportionality test in the assessment of the constitutionality of such restriction, see Lau San Ching v Liu Apollonia (1995) 5 HKPLR 23; Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166; Wong Hin Wai v Secretary for Justice [2012] 4 HKLRD 70.  Under the test, as held by the Judge, the court has to consider the following questions:

(a) Whether the restriction is imposed to pursue a legitimate aim;

(b) Whether there is a rational connection between the aim and the restriction adopted;

(c) Whether the restriction is proportionate.

21.In respect of the third question, it is sometimes formulated as whether the restriction is no more than is necessary to accomplish the legitimate aim, see Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 paragraph 20 where the test was called the justification test; Mok Charles v Tam Wai Ho, supra paragraph 28; China International Fund Ltd v Dennis Lau & Ng Chun Man Architects & Engineers (HK) Ltd HCMP 2472 of 2014, 12 Aug 2015.  In substance, they are the same test.  The proposition that a restriction being proportionate or reasonably proportionate, as expounded in the cases mentioned in paragraph 20 above (and also in Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570 at paragraph 31) emphasizes on the assessment of the nature and extent of the limitation as a proportionate response to the legitimate aim (see Solicitor v Law Society of Hong Kong, supra, paragraph 33).  At the same time, the formulation that a limitation should be no more than is necessary to accomplish the legitimate aim highlights the need to justify a restriction as a limitation of a constitutional right.  Even so, our courts have repeatedly recognized that this formulation does not remove the possibility of a reasonable range of options within which the relevant arm(s) of the government has a discretionary area of judgment, see Mok Charles v Tam Wai Ho, supra, paragraphs 53-54 and 79; Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraphs 62 and 75; Leung Chun Ying v Ho Chun Yan Albert China (2013) 16 HKCFAR 735[3] ; International Fund Ltd v Dennis Lau & Ng Chun Man Architects & Engineers (HK) Ltd, supra, paragraph 46.  Thus understood, no matter how the third limb of the test is formulated, the ultimate question is the same.

22.In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at paragraph 43, Sir Anthony Mason NPJ explained this aspect of the proportionality test in these terms:

“ The next question is whether the means employed, namely the creation of the persuasive onus, is necessary to achieve the legitimate aim. In this respect, the means employed must be no more than is necessary to achieve that aim. If the means employed go beyond what is necessary in that sense, the restriction or limitation on the right, in this case the persuasive onus, is disproportionate and there is an absence of the requisite proportionality between the means employed and the legitimate aim. …”

23.More recently, the Chief Justice said in Fok Chun Wa v Hospital Authority, supra, at paragraph 75(1):

“ The justification test is similar in nature to the test for proportionality: see Yau Yuk Lung p. 349D-E, [20]. To ask whether a difference in treatment is justified is the same as asking whether what has been done (or omitted to be done) or decided is a proportionate response to the legitimate aim.”

24.Mr Pun, however, contended that one should adopt a minimal impairment test in respect of fundamental (though not absolute) rights.  He relied on paragraph 40 in the judgment of Ribeiro PJ in Kong Yunming v Director of Social Welfare, supra in advancing this submission.

25.With respect, Mr Pun had read that part of the judgment out of context.  Ribeiro PJ discussed the proper approach in conducting a constitutional review at paragraphs 38 to 43 in that judgment.  At paragraph 39, His Lordship referred to the proportionality test as applicable in respect of constitutional rights which are not absolute by nature:

“ … The Court then asks whether that restriction pursues a legitimate societal aim and, having identified that aim, it asks whether the impugned restriction is rationally connected with the accomplishment of that end. If such rational connection is established, the next question is whether the means employed are proportionate or whether, on the contrary, they make excessive inroads into the protected right.”

26.That is the proportionality test discussed above. And at footnote 30, His Lordship specifically cited HKSAR v Lam Kwong Wai, supra, to illustrate how the test is to be applied.

27.Then starting from paragraph 40, Ribeiro PJ discussed the difference in the intensity of scrutiny and it was in that context that His Lordship referred to what was sometimes called “the minimal impairment test”.  In respect of fundamental rights or differentiation on inherently suspect grounds, “the court will subject the impugned measure to ‘intense scrutiny’, requiring weighty evidence that it goes no further than necessary to achieve the legitimate objective in question.” 

28.In contrast, in respect of implementation of socio-economic policies, His Lordship explained at paragraphs 41 to 43 that the court would only intervene where the impugned measure is “manifestly without reasonable foundation” and why Kong Yunming belonged to that category of cases.

29.Hence, properly read, in Kong Yunming v Director of Social Welfare, supra, Ribeiro PJ applied the proportionality test and at paras 40 to 41 he was only referring to the difference in the intensity and standard of review in the application of the third limb of that test to rights of different nature.

30.It is not a new approach.  In HKSAR v Lam Kwong Wai, supra, Sir Anthony Mason NPJ said at paragraph 45:

“ It is, however, appropriate that the Court should give weight to the legislature’s view that the imposition of a persuasive onus on a defendant to a charge under s.20 is an appropriate response to the problem presented by the use of imitation firearms for unlawful purposes. (HKSAR v. Ng Kung Siu at 460I-J, per Li CJ). The weight to be accorded to the legislative judgment by the Court will vary from case to case depending upon the nature of the problem, whether the executive and the legislature are better equipped than the courts to understand its ramifications and the means of dealing with it …”

31.We are thus of the view that, absolute and non-derogable rights aside, the test to be applied in respect of different kinds of rights should be the same.  Properly understood, there is only one proportionality test.  The different formulations only reflect different emphasis on different facets embodied in the same test.  For the sake of consistency and to avoid confusion, notwithstanding what had been said in the earlier cases, it may be better to adhere to the formulation which has been more widely used by the Court of Final Appeal in the recent cases, viz that the restriction should be no more than is necessary to accomplish the legitimate aim whilst recognizing that there must be scope for according due margin of appreciation to the executive or legislative arms of the government in areas of discretionary judgment.

32.Mr Pun submitted on behalf of the Applicant that the Judge had applied the wrong test.  With respect, once the true effects and purports of these different formulations in the third limb of the proportionality test are properly understood (as explained above), it can readily be seen that the test adopted by the Judge was the same as the test advocated by Mr Pun.

33.In this connection, we reject the submissions of Mr Pun that there is a more stringent test for rights which are of a more fundamental nature.  We must emphasize again that there is only one single test.

The standard of scrutiny

34.However, depending on the nature of the rights being engaged, the intensity of review in the application of this test varies. This was recognized by the Judge at paras 30 and 31 of his judgment:

“ 30. However, the degree and extent of the margin of appreciation that the court would accord to the discretionary area of judgment of the relevant authority would depend on the subject matter under scrutiny.  Where fundamental concepts or core values are said to have been infringed, the courts will be particularly vigilant to protect the right associated with such concepts, and consequently much less leeway or margin of appreciation will be accorded to the authority concerned.  As Ma CJ explained, it is these areas (ie, areas involving core values or fundamental concepts) where the courts have expertise and experience, and it is part of their constitutional duty to protect these values or concepts: Fok Chun Wa, at paragraphs 79, 81 per Ma CJ.

31. Thus, Ribeiro PJ recently in Kong YunMing v The Director of Social Welfare stated again at paragraph 40 that it is in relation to certain fundamental rights such as freedom of expression, freedom of peaceful assembly, or in discrimination cases where the infringements are based on certain personal characteristics (such as race or sex) that the court, in applying the proportionality test, would adopt the “minimal impairment” test and would regard a restriction to be disproportionate unless it goes no further than necessary.”

See also paragraphs 34 and 35 of the judgment below.

35.In the present case, the Judge held that he should accord a due margin of appreciation to the legislature and the government, see paragraphs 38 to 43.  In so doing, the Judge followed the approach adopted by the Court of Final Appeal in Leung Chun Ying v Ho Chun Yan Albert, supra.  

36.The Judge then considered and rejected Mr Pun’s submission that the restriction impaired the essence and effectiveness of the right to stand for election and no margin of appreciation should be accorded, see paragraphs 44 to 49.  Mr Pun did not challenge this part of the judgment in this appeal.

37.The Judge then concluded at paragraph 50:

“ For these reasons, I am of the view that in applying the proportionality test in the scrutiny of the statutory restriction in s39(2A), the court should accord a margin of appreciation to the legislature. In other words, the court should only interfere if it finds that, upon scrutiny, the restriction is manifestly without reasonable foundation.”

38.At later parts of the judgment, the Judge again referred to a standard of scrutiny in terms of “manifestly without reasonable foundation” at paragraphs 78, 93, 94(4), 97 and 100 in the context of his discussion on the third limb of the proportionality test.

39.Mr Pun submitted that the Judge erred in adopting such a standard of scrutiny even though due margin of appreciation should be accorded to the legislature in the present case.  Citing Kong Yunming v Director of Social Welfare, supra, Mr Pun submitted that the “manifestly without reasonable foundation” standard should only be applicable in areas of socio-economic policy whilst a “minimum impairment” test should be applied in respect of fundamental rights, including electoral rights.

40.Lord Pannick QC (appearing with Mr Mok SC and Mr Pao for the respondent in this appeal) submitted that the standard of intensity of review should be context driven and whether the standard of “manifestly without reasonable foundation” should be the right standard to be adopted should depend on the issues which the court needs to examine in the application of the proportionality test.  He reminded this court of what the Chief Justice said in Fok Chun Wa v Hospital Authority, supra, at paragraph 81:

“ It is sometimes said that in cases where core-rights or fundamental concepts are concerned, the courts will adopt an ‘intense’ or ‘more intense’ level of scrutiny. These terms, like the terms margin of appreciation or deference, are used for convenience only and not be taken literally. They are used to convey the principles identified earlier in this section of the Judgment. There is of course, no question of a court taking a laxer or less vigilant approach whenever any questions of constitutionality arise. Each case is of course approached seriously, only that the legal approach will inevitably differ depending on the circumstances of the case. Where core values or fundamental concepts are involved, these are areas where the courts have (for want of better terms) expertise and experience, and it is part of their constitutional duty to protect these values or concepts. In policy matters not involving these matters, the courts do not have this expertise or experience and, more important, it is not within its constitutional remit to determine matters of government or legislative policy, save where questions of legality arise. ...”

41.The Chief Justice then cited the dicta of Sir Anthony Mason NPJ in Lam Kwong Wai which we have already quoted above.

42.Lord Pannick further referred to Leung Chun Ying v Ho Chun Yan Albert, supra, paragraph 45 where the Chief Justice explained how the concept of margin of appreciation was applied in the context of election law in that case:

“ In the context of election law, [the difference in the constitutional roles of the judiciary and the executive and legislature] must be borne in mind. … Elections, however, also involve political and policy considerations and it is in these areas where the legislature is involved. … A due margin of appreciation should be accorded in the present case…”

43.We have already explained why we do not consider Ribeiro PJ as laying down a separate test of minimum impairment to replace the proportionality test in Kong Yunming v Director of Social Welfare, supra. As regards the standard or intensity of review in the application of the proportionality test, there is some force in Mr Pun’s submission that the standard of “manifestly without reasonable foundation” had so far only been applied by the Court of Final Appeal in the area of socio-economic policy.  On the facts, Fok Chun Wa and Kong Yunming fall within that category.  We accept Mr Pun’s submission that due margin of appreciation does not necessarily mean the adoption of “manifestly without reasonable foundation” as the standard for review.  Insofar as the Judge had done so, we respectfully disagree.

44.In Fok Chun Wa, the Chief Justice said at paragraph 75(6):

“ …outside the area of socio-economic or other general policy matters, where fundamental concepts or core-values are involved, the court will be particularly stringent or intense in the application of the justification test. But in the area of socio-economic or other general policy matters, attempts to search for more and more alternatives to the solution that was adopted in any one case, should be discouraged. This, I reiterate, is not the role of the court …”

45.In our judgment, as explained by the Chief Justice, the rationale for adopting different intensity in the court’s review stems from the constitutional role of the judiciary vis-à-vis the roles of the executive and the legislature.  We agree with the submission of Lord Pannick that the court will accord the appropriate weight to the judgment of the legislature if the particular question arisen from the application of the proportionality test in a particular case involves the exercise of a pre-eminently political judgment.  Apart from Fok Chun Wa supra, and Leung Chun Ying v Ho Chun Yan Albert, supra, this proposition is well-supported by dictum in the English authorities.  In A v Secretary of State for the Home Department [2005] 2 AC 68 at paragraph 29, Lord Bingham said:

“ … I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question[4], because they were called on to exercise a pre-eminently political judgment. … As will become apparent, I do not accept the full breadth of the Attorney General’s argument on what is generally called the deference owed by the courts to the political authorities. It is perhaps preferable to approach this question as one of demarcation of functions or what Liberty in its written case called ‘relative institutional competence’. The more purely political (in broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. …”

46.In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 what was said by Lord Bingham at paragraph 33 echoed what had been said by Sir Anthony Mason NPJ in Lam Kwong Wai paragraph 45:

“ The weight to be accorded to the judgment of Parliament depends on the circumstances and the subject matter. …”

47.Even so, as illustrated by the facts of A v Secretary of State for the Home Department, supra, when fundamental rights are engaged and intensive review is called for, the courts were not precluded by any doctrine of deference or margin of appreciation from examining the proportionality of a restriction on such rights even though the restriction was imposed as a matter of political judgment.  In this connection, what Ma CJ said at paragraph 77 in Fok Chun Wa, supra, is also relevant.  Actually, even in cases where the court adopted the standard of “manifestly without reasonable foundation”, the court did not abdicate its constitutional role altogether.  In Kong Yunming, supra, the Court of Final Appeal held that the policy in question was unconstitutional though it adopted that standard of review.

48.Subject to the caveats in the above paragraph, we agree with Lord Pannick that the weight to be accorded to the judgment of the legislature in a particular case must depend on the nature of the issue and the constitutional roles of the judiciary in relation to that particular issue. Sometimes, the nature of the rights involved will provide the answer (as in the examples of fundamental rights set out by Ribeiro PJ at paragraph 40 in Kong Yunming, supra).  On other occasions, one must have regard to the specific issue in question.  In electoral context, the Court of Final Appeal gave due weight to the judgment of the legislature in Charles Mok v Tam Wai Ho, supra as well as Leung Chun Ying v Ho Chun Yan Albert, supra.  However, the outcomes were that in Charles Mok, the relevant restriction was held to be unconstitutional whilst in Leung Chun Ying, the restriction was held to be constitutionally valid.  These cases illustrate that it is a matter of issue-based assessment and the weight to be accorded could vary.

49.Coming back to the present context, we are concerned with the right to stand for election.  In Wong Hin Wai v Secretary for Justice [2012] 4 HKLRD 70 paragraphs 9 to 35, the court examined this right within our constitutional framework.  The Judge had due regard to that judgment when he said at paragraph 28:

“ Moreover, the criterion of proportionality is to ensure that the restriction does not curtail the rights in question to such an extent as to impair their very essence or to deprive them of their effectiveness. There also has to be a discernible and sufficient link between the sanction and the conduct and the circumstances of the individual concerned. In applying the test, the court should also have regard to the historical and current state of political development in Hong Kong.”

50.Mr Pun did not advance any submission against that analysis. Instead, his submission was that the Judge erred in concluding that there is a legitimate aim for s39(2A) and that it is a proportionate response because he applied a less intense review by adopting “manifestly without reasonable foundation” as the standard for review.  As mentioned, the Judge explicitly referred to this standard in relation to the third limb of the proportionality test though he did not do so when he considered the first limb, viz the question of legitimate aim.  Further, as it is apparent from a reading of the Judge’s comprehensive and careful judgment, he had exercised his own independent judgment over the relevant arguments in respect of each limb before he came to his conclusion.  These relevant arguments are the same as those advanced by Mr Pun and Lord Pannick before us.

51.Having regard to the nature of the restriction imposed by s39(2A) and the nature of the right to stand for election, we are of the view that the application of the proportionality test involves consideration of different issues in respect of which the weight to be accorded to discretionary judgment of the legislature may differ.  Even assuming the Judge were wrong to adopt a more relaxed standard in respect of the third limb in general, the real question before us is whether s39(2A) could satisfy the proportionality test.  To these issues we shall now address and it is more convenient to discuss whether the standard of “manifestly without reasonable foundation” should be applied in the context of each issue.

Legitimate aims

52.Based on the materials presented to the Legislative Council when the bill was debated, the Judge identified the following to be the legitimate aims of s39(2A):

(a) To deter the practice of a member resigning in order to trigger a by-election in which he intends to stand and seek to be re-elected[5]; and

(b) To improve the fair and effective working of the electoral system[6].

53.The Judge further held that the two aims are “in effect connected and the same”[7].  He was of the view that it was within the spectrum of reasonableness that one may regard such conduct of a member as an abuse which had a negative effect on the working of the electoral system[8].

54.Before the Judge, Mr Pun mounted various grounds of attack on the legitimate aims relied upon by the government[9]. The Judge addressed all of them.  In this appeal, Mr Pun’s submissions are more focused and he quite properly did not pursue some grounds which are obviously bad[10].

55.Mr Pun submitted that since it was accepted that one could reasonably hold the view that a member could legitimately resign for the purpose of submitting himself to the electorate in a by-election to decide whether he should continue to represent them[11], it could not be characterized as an abuse which should be deterred.  He quotes these examples as illustrations of resignation on a proper cause: a member who changed party allegiance and took a controversial stance on a public issue during the term of his office (and he placed the resignation in 2010 in such category); a member who was involved in “scandalous conduct”.

56.Without any basis for holding that to be an abuse, Mr Pun submitted that the consequences identified by the government (constituents being deprived of representation during the interim period; the council being deprived of the service of the resigning members; costs involved in the by-election) could not by themselves provide the justification for this restriction.  As for the undermining of the integrity and credibility of the council if resignations become a common occurrence, Mr Pun submitted that it is a matter of speculation without any evidential basis.  Hence, counsel submitted that no real mischief can be identified for the restriction in s39(2A).  As the improvement aim is only the other side of the same coin, it could not take the government’s case further.

57.On the undermining of the integrity and credibility of the council, Lord Pannick referred to the exceptionally low turn-out rate in the 2010 by-election as evidence.  Counsel also submitted that the legislature did not pass the amendment bill in vacuum.  In light of what had happened in 2010, it was a matter of political judgment whether, having regard to those undesirable consequences identified in the materials placed before the legislature, it is necessary to take step to address the same.  Whilst acknowledging that politicians could reasonably hold the view, as the Applicant did, that a member should be entitled to resign in order to re-confirm his mandate from his electorate, equally there were politicians who reasonably held the view that such resignation should be curbed in view of the undesirable consequences as outlined by the government[12].  Ultimately, counsel submitted, it was within the broad discretionary judgment of the legislature (after detail consultation and full debate in the council) to decide that it was a matter which needed to be addressed.  He further said that the court should not take side on political issue like this.

58.In our judgment, there is a fundamental fallacy in Mr Pun’s submission: he elevated the reasonable political view held by some people on re-confirming one’s mandate by resignation and participation in a subsequent by-election as an immutable constitutional right.  As Lord Pannick pointed out, there were also reasonable views held by politicians in the opposite direction.  It is a matter of political debate on the wisdom of pursuing the course as the one undertaken by the members who resigned in 2010 and there is no right or wrong answer as a matter of law.

59.Mr Pun submitted that it serves the ideals of elected representative and responsible government for a member to do so when he takes a stance on a controversial issue.  We should not be engaged in expressing any view on the political wisdom of this aspiration.  As a court of law, we only concern ourselves with legal issues.  Under Article 69 of the Basic Law, the term of office of the Legislative Council is four years and it must be trite that the electoral system is not designed to have a by-election whenever a controversial issue falls to be considered by the council in order to re-confirm the mandate of the elected members.  We do not take it to be the suggestion of Mr Pun that before a vote is cast on any major bill or any debate on a major issue, a member should be entitled to seek re-confirmation of his mandate from his electorate through a by-election.  That is obviously unworkable.  Then the obvious question is: who should decide and by what criteria should it be decided whether there is a controversial issue which merits such exercise to be done? Presumably, Mr Pun’s answer would be: they should be left to the judgment of the member in question.  But why should it be so? We do not think there are any legal answers to these questions but they serve to highlight the highly political nature of this debate. 

60.Further, the extent to which the deprivation of the service of the resigning members would be detrimental to the works of the council and the damage which repeated occurrence of resignations for the purpose of triggering by-elections would cause to the integrity and credibility of the council are eminently matters of political judgment.  It is very difficult for the court to gainsay the collective judgment of the legislature in these matters. 

61.In the course of hearing, Mr Pun was constrained to accept that the Basic Law does not give a member a right to re-confirm his mandate by triggering a by-election.  He said he did not go that far because he only needed to rely on the right to stand for election.  But the right to stand for election, as we have seen, is not an absolute right.  Thus, we come back to the question on legitimate aim, that is, whether a resignation with a view to trigger by-election to re-confirm one’s mandate is something which needed to be addressed.

62.We agree with Lord Pannick that it was ultimately a pre-dominantly political question on which reasonable views could have been held either way.  We further agree with Lord Pannick that this is an area where the court should accord due weight to the broad discretionary judgment of the legislature because:

(a) Under Article 68 and paragraph 2 of Part 1 of Annex II of the Basic Law, the Legislative Council is the body constitutionally tasked with the function to decide on the content of the electoral law;

(b) As mentioned earlier, in the context of the application of the proportionality test to restriction on the right to stand for election, the historical and current state of political development in Hong Kong has to be taken into account. The enactment of s39(2A) was prompted by the development in 2010.  It is a pre-dominantly political issue whether a similar exercise should be curbed;

(c) As we have seen, there could be reasonable arguments on both sides and the debate is political in nature;

(d) The legislature reached its decision after the government had conducted full consultation and its members had extensively debated on the question; and

(e) Given the high political contents of the issues involved and the potential impact on the council’s credibility and integrity, the court should respect the constitutional role of the legislature in the assessment as to whether there is a need to discourage resignations with a view to trigger by-elections.

63.Though we prefer not to use “manifestly without reasonable foundation” as the standard for review, we conclude that the Judge came to the right conclusion in holding that s39(2A) was enacted to pursue legitimate aims as identified in his judgment.  In view of the position taken by Mr Pun before us and what we said in footnote 1 above, it also follows that the provision is rationally connected with these aims. 

Proportionate response: no more than necessary

64.Mr Pun candidly accepted in his oral submission before us that if he should fail to persuade us there was no legitimate aim for the provision in s39(2A), he would probably fail in challenging its proportionality under the third limb of the test.

65.In this connection, we are also of the view that the precise form of restriction to address the legitimate concerns as discussed above falls within a discretionary judgment.  Applying the third limb of the proportionality test as discussed earlier, viz that the restriction should be no more than necessary to address those concerns, we are of the view that it is a matter of high political contents.  We are satisfied that s39(2A) does not impair the essence nor deprive the effectiveness of the right to stand for election.  It is up to a legislator to decide whether he or she should resign for political causes during his or her term.  Further, s39(2A) does not preclude him or her to participate in the next general election.  Though we would refrain from adopting the standard of “manifestly without reasonable foundation”, we are of the firm view that due margin of appreciation should be accorded to the legislature in this respect.

66.In his written submissions, in addition to an argument that there was no mischief which needed to be addressed (which is the same argument on legitimate aim) Mr Pun submitted as follows:

“ (1) there are also many examples where a LegCo Member may resign initially not for the purpose of seeking re-election but later elects to stand in the by-election due to a change of circumstances; and

(2) the Administration has not given any reasons, let alone strong and compelling ones, to show that the pre-existing by-election system (i.e. before the introduction of section 39(2A)) was incapable of addressing the alleged “mischief” arising from the 2010 by-election by “simply leaving the choice to the good sense and judgment of Hong Kong permanent residents who can exercise their existing right to vote and right to stand for election to react to such a scenario.”

67.These arguments can be dealt with shortly.  On the first point, the examples given in paragraph 82 of the Form 86 were as follows:

“ (1) a LegCo Member may resign after being arrested by the Police for a serious criminal offence outside Hong Kong but was unconditionally released by the Police after investigation for two months;

(2) a LegCo Member may resign after being convicted of a criminal offence but has his conviction quashed on appeal after his resignation and before the resulting by-election;

(3) a LegCo Member may be imprisoned overseas by some authoritarian regime and have to resign, but be released after his resignation and before the resulting by-election;

(4) a LegCo Member may resign to take care of his ailing wife but his wife dies after his resignation and before the resulting by-election; and

(5) a LegCo Member may be diagnosed with a terminal disease but later discover that the diagnosis is incorrect.”

68.With respect, they are fanciful suggestions and we do not find those to be a concrete basis for upsetting the balance struck by the legislature in the form of a modest restriction in s39(2A).

69.The second point of Mr Pun was only a roundabout way of arguing that there was no mischief.  Once we have reached the conclusion that s39(2A) is enacted to address some legitimate concerns, leaving the position as it was is not an option. 

Disposition

70.For these reasons, we dismiss the appeal with an order that the Applicant shall pay the costs of the Respondent with certificate for 2 counsel, such costs are to be taxed if not agreed.  There shall also be legal aid taxation in respect of the Applicant’s own costs.

71.Lastly, we thank counsel for their assistance and the clear and concise presentation of their respective case.

Hon Poon JA:

72.I agree with the judgment of the Chief Judge and the judgment of Lam VP. I would like to add a few words of my own.

73.While section 39(2A) of the LCO seeks to restrict the right to stand for election, which is a non-absolute fundamental right protected constitutionally, the underlying considerations and competing arguments are essentially political in nature - holding political ramifications and predominant political contents.  The court is not the forum to hold debates on political questions.  The Legislative Council is.  Nor is the court constitutionally tasked to examine and determine the validity of political considerations and arguments.  The Legislative Council is.  So generally speaking the court should accord a board margin of appreciation to the legislature on political issues, such as those featuring in the present case, and will not lightly interfere with their political judgment.  However, it does not mean that the court will abdicate its constitutional role in judicially reviewing a statute passed by the legislature whenever questions of political nature are involved.  Provided that there are justifiable grounds to interfere as a matter of law, the court will do so to ensure that the legislature acts lawfully within its sphere.  But given the nature of things, as the present case demonstrates, the occasion when the court decides to interfere even if it involves a pre-eminently political judgment on the part of the legislature, should be exceedingly rare.

Mr Hectar Pun SC and Mr Newman Lam, instructed by Ho Tse Wai, Philip Li & Partners, for the applicant

Lord Pannick QC, Mr Johnny Mok SC and Jin Pao, instructed by the Department of Justice, for the respondent