Chief Executive of the Hong Kong Special Administrative Region and Another v. The President of the Legislative Council

HCAL 185/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 185 OF 2016

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HCMP 2819/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2819 OF 2016

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(Heard together)

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R U L I N G

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1.This is my short ruling on the matter.

2.In this urgent application, the applicants ask the court to grant an interim relief to effectively restrain the President of LegCo to, as he has decided today, permit Ms Yau and Mr Leung to retake the oath again before him tomorrow in accordance with Section 19 of the Oaths and Declarations Ordinance, and to restrain Ms Yau and Mr Leung from proceeding to purport to take the oath again and purport to continue to act as a member of the LegCo.

3.The principle governing the grounds of interim injunction in public law cases are established.  There is no dispute that I should apply the well-established principle under American Cyanamid governing the grounds of interlocutory injunction as necessarily modified in the context of public law.  Its principles are that (a) whether there is a serious issue to be tried in the judicial review or the action before me; (b) if so whether damages are sufficient remedy for either parties; and (c) if damages are not sufficient for both parties, whether the balance of convenience should lie in favour or not in granting the interim relief.  In this last stage, in public law context, it’s important to look at the wider perspective of public interest.

4.I am prepared, for the present purpose, to accept that the applicants have a good arguable case, and hence a serious issue to be tried, that on a proper construction of Section 21 of the Oaths and Declaration Ordinance, read in the context of Article 104 of the Basic Law, and in light of the way and manner that Ms Yau and Mr Leung purported to take the oath as required under Section 19 of the Ordinance, that they have been so disqualified from entering the office as LegCo members.  I may even be prepared to say, based on what I have seen on the evidence and heard from submissions today, that the applicants have a strong arguable case on this.  On this note, I am therefore prepared to grant leave to the applicants to apply for judicial review under HCAL 185/2016.

5.However, as damages are clearly not sufficient remedy for both parties, I should proceed to consider the question of balance of convenience, which is to weigh between the prejudice that will be caused by if wrongfully not granting the interim injunction sought and the prejudice that will be caused by if wrongfully granting it.

6.In this respect, Mr Mok submits that the prejudice to be suffered by the public is that if persons who should have already been disqualified to act as LegCo members would be allowed to continue to purport to so act, this will not only cause confusion to the public, but also result in damaging the sanctity and solemnity of the legislature.

7.However, in my view, although there is force in these submissions, the undesirable and adverse perception that the public may have, by allowing Ms Yau and Mr Leung to proceed to take the oath tomorrow, and if considered acceptable by the President of the LegCo to purport to continue to act as members of LegCo, would be qualified and corrected by the fact of these proceedings, and the fact that leave to apply for judicial review has already been granted.  This is particularly so since, as I have just indicated, the substantive hearing of this application would be held within a week or two.

8.On the other hand, I agree with Mr Jat’s submissions, which are adopted by Mr Pun and Mr Tam, that there would be significant prejudice caused to the public if Ms Yau and Mr Leung are to be deprived of, in this interim period, to represent their respective electorate in the LegCo.  As Mr Jat emphasises, unless declared disqualified, they are still properly elected LegCo members expected to represent their electorate in the LegCo.  The undesirable and adverse effect caused by the prejudice of depriving their representation in the LegCo, at this stage, cannot and will not be compensated, and is not qualified and corrected by the fact of these proceedings, and the fact that leave has already been granted in the judicial review.

9.Looking at the prejudice that may be caused to both sides in the above way, I am not persuaded that I should exercise my discretion and grant the interim injunction sought by the applicants at this stage.

10.Further and alternatively, if I were to come to the view that the convenience is equally balanced, I would still regard the status quo to be that Ms Yau and Mr Leung, at this stage, have not yet been declared disqualified, and the President of the LegCo, in the exercise of his constitutional role, has made a decision to allow them to take the oath again before him.  In these circumstances, in order to maintain the status quo, I should not exercise my discretion to grant the interim injunction sought, which would, if granted, disturb the status quo.

11.I must however emphasise that the court, in refusing to grant the interim injunction at this stage, is premised on the consideration of balancing of convenience in accordance with legal principles.  The Court is not saying that Ms Yau and Mr Leung are not so disqualified under Section 21 of the Oaths and Declaration Ordinance by reason of the way and manner that they took the oath as they did on 12 October 2016.  The court will still have to decide that in the forthcoming substantive hearing which is to be held in the next two weeks or so.

12.This is therefore my ruling.  Mr Mok, I would, therefore, with regret, refuse your application.

(Discussion re hearing date)

13.Therefore the directions are that the defendants or respondents, if they are going to file evidence in opposition, they should file it by 24 October 2016, and then the applicants or the plaintiffs are to file their skeletons and hearing bundles, filed and served, on 27 October 2016, and the defendants and respondents are to file their respective skeletons and serve their respective skeletons on 1 November 2016, and this matter, these two applications will be heard on 3 November 2016 with 4^th reserved.

Mr Johnny Mok SC, Mr Jimmy Ma and Mr Jenkin Suen, instructed by Department of Justice, for the 1^st and 2^nd applicants in HCAL 185/2016 and the 1^st and 2^nd plaintiffs in HCMP 2819/2016

Mr Jat Sew-tong SC and Mr Anthony Chan, instructed by Lo and Lo, for the respondent in HCAL 185/2016 and the 3^rd defendant in HCMP 2819/2016

Mr Hectar Pun SC and Mr Anson Wong Yu-yat, instructed by Ho Tse Wai and Partners, for the 1^st interested party in HCAL 185/2016 and the 2^nd defendant in HCMP 2819/2016

Mr Tam Chun-kit, instructed by Khoo & Co, for the 2^nd interested party in HCAL 185/2016 and the 1^st defendant in HCMP 2819/2016