Kwok Cheuk Kin v. Leung Chun Ying

HCAL 201/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 201 OF 2016

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Before: Hon Au J in Court

Date of Hearing: 12 January 2017

Date of Decision: 10 May 2017

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D E C I S I O N

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A.   INTRODUCTION

1.On 11 November 2016, the applicant applied for leave for judicial review against (among others) the 1^st putative respondent, Mr C Y Leung (“Mr Leung”), the Chief Executive of the Hong Kong Special Administrative Region (“the CE”).  He seeks in the intended judicial review to challenge the validity of the CE oath taken by the CE when he assumed office on 1 July 2012 (“the 2012 CE Oath”).  At the time of the filing of the leave application, the applicant acted in person.

2.On 16 December 2016, this court directed that there should be an oral hearing of, among others, this leave application on 12 January 2017 and that the CE shall attend the hearing.

3.On 6 January 2017, the applicant, by then legally represented, filed an Amended Form 86 and a skeleton in support of the leave application.  The applicant is represented by Mr Ernest Ng in this application.

4.The CE, who opposes leave, is represented by Mr Benjamin Yu, SC, leading Mr Jimmy Ma and Mr Jenkin Suen.

B.  THIS LEAVE APPLICATION

B1.  Proposed ground of judicial review

5.There is effectively only one proposed ground of judicial review, which is that the 2012 CE Oath as taken was not compliant with Article 104 of the Basic Law (“BL104”) and section 16A and Schedule 2 of the Oath and Declaration Ordinance (Cap 11) (“ODO”).

6.The complaint in support of this ground is this:

(1) The oath mandated under BL104 that should be taken by the CE when assuming the office is one as prescribed by Schedule 2 of the ODO.

(2) Relevant for the present purposes, the last sentence of the prescribed CE oath should read: “對中華人民共和國中央人民政府和香港特別行政區負責”. (emphasis added)

(3) However, when the CE took the 2012 CE Oath, he did not read out “香港” in the last sentence of the oath.

(4) Although the applicant accepts that the CE did not deliberately or wilfully omit the words “香港” in taking the 2012 CE Oath, he submits that this is still not in compliance with BL104.  This is so as paragraph 2 of interpretation (“the Interpretation”) of the BL104 issued by the National People’s Congress Standing Committee (“NPCSC”) on 7 November 2016 provides that an oath taker should read out the oath as prescribed completely and accurately.

(5) In the premises, the 2012 CE Oath is invalid. The CE should therefore retake the oath as explained and permitted under paragraphs 2 and 3 of the explanation (“the Explanation”) of the Interpretation issued by the Legislative Affairs Commission of the NPCSC.  These provide:

“二、 關於香港基本法第一百零四條規定的‘就職時必須依法宣誓’的含義

香港基本法第一百零四條規定有關公職人員‘就職時必須依法宣誓’。按照法律規定及其實踐，這一規定至少具有四個層次的含義：

...

第三，如果宣誓人拒絕宣誓，即喪失就任基本法第一百零四條所列相應公職的資格。宣誓人故意以行為、語言、服飾、道具等方式違反、褻瀆宣誓程序和儀式，或者故意改動、歪曲法定誓言或者宣讀與法定誓言不一致的誓言，也應認定該宣誓行為不符合宣誓形式或實質要求，從而宣誓無效，宣誓人即喪失就任資格。至於不是出於宣誓人的故意而出現的不符合規範的情況，可允許宣誓人進行再次宣誓。

…”(emphasis added)

7.The applicant therefore asks in the proposed judicial review the following reliefs:

(1) a declaration that the 2012 CE Oath is invalid for non-compliance with Schedule 2 of the ODO and BL104 as interpreted by the Interpretation;

(2) a declaration that Mr Leung was and is not entitled to assume office of the CE and to exercise power and functions and to enjoy corresponding entitlements under BL104 as interpreted by the Interpretation; and

(3) an order that Mr Leung shall use his best endeavour to procure the 2012 CE Oath to be re-administered.

B2.  Delay

8.It is trite that an application for leave to apply for judicial review must be made promptly and in any event not later than three months from the date when grounds for the application first arose.  Generally, the court should refuse to grant leave if it is made out of time, but it retains a discretion to extend time if there is good reason for doing so.  See: Order 53, rule 4(1) of the Rules of the High Court, and section 21K(6) of the High Court Ordinance (Cap 4).

9.This leave application seeks to challenge the 2012 CE Oath taken more than four years ago on 1 July 2012, and is thus seriously out of time.

10.The applicant therefore asks for an extension of time to apply for leave, which is strongly opposed by the CE.

11.It is now well established that[1] whether there is good reason to extend time is a multi-faceted question to be answered based on the circumstances of each case, and the court in considering that question would take into account the following factors:

(1) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(2) Explanation for the delay: While Order 53, rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(3) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B-C, per Litton NPJ).  An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at paragraph 13, per Hartmann J).

(4) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(5) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

12.Adopting this approach, I agree with Mr Yu that no extension of time should be granted to the applicant in the present case.

13.On the question of delay, it is obvious that the delay of some four years and four months is extremely long and serious.  As pointed out by Mr Yu, the present extent of the delay is particularly serious when considered in proper context since:

(1) BL104 requires the CE oath to be taken when assuming office.  Given the fact that the CE has assumed office in 2012, it is incumbent of anyone seeking to challenge the oath to do so promptly at the time of assumption of office, and not many years afterwards.

(2) The public office of the CE is for a term of five years.  By the time the applicant issued his Form 86 (and more so at any substantive hearing), such term of office was shortly about to expire.  The delay has been so substantial that it more or less coincides with the end of the term of office of the CE, hence rendering the proceedings practically academic.

14.Given the very serious delay, it would require very good reason to justify an extension of time, in particular when considered under the above context.

15.As to the explanation for the delay, Mr Ng for the applicant submits that the present proposed ground of judicial review effectively only arose in November 2016 after the Interpretation has been issued by the NPCSC.  The delay is therefore excusable.  Mr Ng’s arguments in support run as follows:

(1) The applicant accepts that the CE’s omission of the words “香港” in the last reference to “香港特別行政區負責” is an advertent one.

(2) Hence, before the Interpretation and the Explanation were issued on 7 November 2016, it was unclear as to whether (a) the 2012 CE Oath was an invalid one (as it is only in the Interpretation that sets out the requirement of strict compliance demanding the reading out all the words of oath as prescribed by Schedule 2 of the ODO); and (b) there is the procedure to re-take the oath for inadvertent non-compliance.

(3) In the premises, it is only after the issue of the Interpretation and the Explanation that the applicant became aware of the challenge and the reliefs he could seek against the CE in relation to the 2012 CE Oath.  He then took out the leave application promptly.

(4) There is thus a good excuse or explanation for the delay.

16.With respect, I am unable to accept these submissions.

17.First, it is clear from the authority of Leung Kwok Hung v Legislative Council Secretariat (HCAL 112/2004, 6 October 2004, per Hartmann J) at paragraphs 21 - 27 and 34 - 40 that an oath must be taken in compliance with the form and substance as prescribed by the ODO.[2] In the premises, insofar as the applicant is seeking a declaration that the 2012 CE Oath as taken is invalid because of the failure to comply with the form, this purported ground in support of such relief should already arise after the CE took the oath on 1 July 2012.  He does not need to wait until the Interpretation to found the ground as submitted.  This is particularly so since, as fairly accepted by Mr Ng, the principal and primary relief sought by the applicant is a declaration of invalidity of the 2012 CE Oath, and he is not really concerned as to whether, if the 2012 CE Oath is to be so declared invalid, Mr Leung could as a relief retake the oath again or not.  There is therefore no excuse at all not to have made the leave application promptly or within three months from 1 July 2012.

18.Second, insofar as Mr Ng is saying that it is only with the Explanation that the relief of seeking an order of mandamus requiring the CE to use his best endeavour to re-take the oath becomes available, this is again not a good explanation for the serious delay:

(1) As mentioned above, this relief is not the principal and essential one sought by the applicant in the proposed judicial review.  This explanation therefore cannot justify the serious delay.

(2) Further, section 21 of the ODO read together with BL104 only provides that an oath taker who intentionally or wilfully declines or neglects to take the oath in the prescribed form shall be disqualified from his office.  In other words, if the applicant really intended only to seek a relief to require the CE to retake the oath after obtaining the declaration of invalidity, there was nothing as a matter of law at the time of the 2012 CE Oath (ie, July 2012) to prevent him from seeking that in the judicial review.  Again, he does not need to wait for the Explanation to found this relief.

(3) In any event, it is well established that the fact that the previous understanding of the law has been subsequently held to be incorrect would not by itself justify an extension of time: Tsui Kin Kwok Johnnie v Commissioner of Police (HCAL 50/2009, 26 February 2010, per Andrew Cheung J) at paragraphs 31 - 34.  Hence, these explanations that the Interpretation and Explanation allegedly effectively provide new legal grounds for the applicant to challenge the 2012 CE Oath cannot by itself, even if correct (which is not for the above reasons), justify an extension of time.

19.For these reasons, the fact that the Interpretation and the Explanation were announced in November 2016 provides absolutely no basis and justification for the delay.

20.Given the seriously lengthy delay and the lack of any (let alone good) explanations or justifications for the delay, I would refuse to extend time on this basis alone.[3]

21.In any event, even if I have to consider the other factors, I would also not be satisfied that there is good reason to extend time.  I will explain briefly as follows.

22.Merits: In my view, the proposed challenge that the 2012 CE Oath is invalid by reason of the inadvertent omission is hardly arguable even in light of the Interpretation:

(1) Paragraphs 2(2) and (3) of the Interpretation read as follows:

“(2) Oath taking must comply with the legal requirements in respect of its form and content. An oath taker must take the oath sincerely and solemnly, and must accurately, completely and solemnly read out the oath prescribed by law, the content of which includes ‘will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China’.

(3) An oath taker is disqualified forthwith from assuming the public office specified in the Article if he or she declines to take the oath. An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn, shall be treated as declining to take the oath. The oath so taken is invalid and the oath taker is disqualified forthwith from assuming the public office specified in the Article.” (emphasis added)

(2) When these two paragraphs are read together, in particular with the emphasis under paragraph (3) that an oath taker is disqualified in failing to validly take the oath if he “declines to take the oath” and “intentionally reads out words which do not accord with the wording of the oath prescribed by law”, the requirement under paragraph (2) of the Interpretation that the oath taker must “accurately, completely… read out the oath prescribed by law” is not intended, on an objective construction, to invalidate circumstances where the oath taker inadvertently fails to read out the prescribed oath accurately and completely in a minor way. Of course, whether any omission is a result of inadvertence should be assessed objectively on the circumstances of each incident, including whether the omission is a de minimis one when considered in context.

(3) In the present case, the applicant himself has accepted that the CE’s omission to read out the words “香港” only once in the last sentence of the oath, out of a total of five references to “香港特別行政區” in the entire oath, is a result of inadvertence and a minor one. The applicant also rightly does not contend that Mr Leung did not intend to take the oath in substance. In the premises, it can hardly be argued that the CE failed to comply with the requirement of BL104 (read with the Interpretation) in taking the 2012 CE Oath.

(4) There are therefore no merits in the proposed ground of challenge. The lack of merits in the proposed challenge (coupled with the unjustified lengthy delay) could not justify an extension of time.

23.Prejudice: As submitted by Mr Yu, there will be enormous prejudice to good administration if the present challenge is allowed to proceed out of time given the fact that the term of the CE has almost run its full course and is about to expire.  This is particularly so since the applicant seeks a declaration that Mr Leung was and is not entitled to assume office of the CE and to exercise power and functions under BL104.  On the one hand, the mere fact that the present application is allowed to proceed may cast doubts and raise uncertainties over the validity of acts of the CE in the past or going forward, and thus detrimental to good administration – this is a fortiori the case here given the lapse of well over four years.

24.On the other hand, the prejudice to the applicant if time is not granted would be minimal, if any.  As repeatedly accepted by the applicant, the mistake committed by the CE in taking the 2012 CE Oath was inadvertent and not intentional or wilful.  This is not a case of the CE having “declined” or “neglected” to take the CE oath in accordance with the law.  The applicant is also only seeking a relief that the CE is to re-take the oath.  There cannot be any suggestions (nor does the applicant so suggest) that such omission would recur during any re-taking of oath.  This judicial review would effectively make very little practical difference.  This is particularly so as by the time of the substantive hearing of the judicial review, if leave is granted out of time, the present’s CE’s term of office would have practically run its course.

25.In the premises, the factor of prejudice also weighs heavily against extending time.

26.Questions of general public importance: Mr Ng submits that the intended judicial review would involve the following questions of public importance and purposes:

(1) Resolving the consequences of having made an inadvertent non-compliant oath under the BL, a matter which has not been provided for under BL104 (before the Interpretation and Explanation) and the ODO.

(2) Resolving the status of the Explanation vis-à-vis the Interpretation itself.

(3) Resolving the question of whether a public officer may serve his or her office notwithstanding an inadvertent non-compliant oath.

(4) Ensuring the compliance with the BL as part of the court’s constitutional power and duty.

27.With respect, all these questions and purposes as framed must be viewed against the merits of the arguments involved to assess whether they do constitute such importance that should be resolved in the intended judicial review by extending time.  The longer the delay, the stronger the merits of the arguments raised by the applicant in these questions is required to justify an extension of time.

28.For the reasons I have explained above on the question of merits, it is hardly arguable, let alone reasonably arguable, that the 2012 CE Oath is invalidated because of the inadvertent minor omission.  As such, all the questions and purposes said to be raised in the intended judicial review do not genuinely arise.

29.In any event, even on the applicant’s own case, any alleged consequence of the omission by the CE in taking the 2012 CE Oath can be cured by retaking of oath.  As such, as submitted by Mr Yu, the questions involved can hardly be said to be of general public importance.

30.For these reasons, I am not satisfied that the intended judicial review involves questions of such public importance which are of substantial merits to constitute a good reason to extend time in the present case.

C.  CONCLUSION

31.There is clearly no good reason to extend time for the applicant to apply for leave, in particular in light of the substantial and serious undue delay.  The leave application should therefore be rejected for delay.

32.In any event, I would also refuse leave on the basis that the proposed grounds of judicial review are not reasonably arguable.

D.  COSTS

33.The CE asks for costs of this application.

34.Mr Ng for the applicant submits that there are no special circumstances in this application to justify a departure from the usual no order as to costs.

35.Costs is a matter of the court’s discretion.  As a matter of principle, the general costs position of an unsuccessful contested leave application should still be no order as to costs.  However, in the exercise of discretion, the court could in unusual or special circumstances award costs against the unsuccessful applicant.  All the facts and circumstances in each case may be relevant and should be taken into account in the exercise of the discretion.  Some of these considerations are whether there are any reasons in the application that have necessitated the attendance of the putative respondent, whether the putative respondent’s attendance has been of material benefit to the court in determining the leave application, and the underlying lack of merits of the application (but always bearing in mind that the context is that the end result that the court has refused to grant leave).  See: Leung Kwok Hung v President of the Legislative Council (2014) 17 HKCFAR 841 at paragraph 17(1) - (5), per Ribeiro PJ.

36.Bearing these principles in mind, and having regard to the following matters, I am satisfied that there are special circumstances in the present case justifying the exercise of discretion to order costs against the applicant:

(1) The applicant needs to apply for extension of time.  This has justified and necessitated the inter partes hearing where the putative respondent is invited by the court to attend, in particular in light of the serious delay in the present case.

(2) The putative respondent’s attendance and submissions are of material benefit to the court in determining the leave application.

(3) Given the very serious and unjustified delay in this leave application, the applicant’s acceptance and recognition that the CE’s relevant omission was inadvertent and minor, and the lack of merits in the proposed ground of judicial review as explained above, the leave application is in my view clearly ill-conceived.

Cf: Re Ho Mei Ling (No 2) [2012] 1 HKC 400 at paragraph 28, per Lam J (as the learned VP then was).

37.Mr Ng has also submitted that, even if the applicant is to bear the costs, there should not be certificate for two counsel or more for the putative respondent.  I disagree.  Given that the applicant sought to challenge the CE’s valid assumption of the office, this is a matter of importance to the CE and he is justified to be represented by two counsel.

38.For all these reasons, I would order costs against the applicant to be taxed if not agreed, with certificate for two counsel.

Mr Ernest CY Ng, instructed by Ho, Tse, Wai & Partners, for the applicant

Mr Benjamin Yu SC, Mr Jimmy Ma, and Mr Jenkin Suen, instructed by Department of Justice, for the 1^st putative respondent