Chief Executive of the Hong Kong Special Administrative Region and Another v. President of the Legislative Council
Read the full judgment text of HCAL 223/2016 on BabelCite. This High Court CFI judgment was delivered on 14 July 2017.
1. These proceedings raise the important legal questions of whether the oath required by the constitution to be taken by all members‑elect of the Legislative Council (“the LegCo”) was validly taken by the four members-elect herein, and whether in law they should be regarded to have declined or neglected to take the oath, and thereby be disqualified from taking up the office of a LegCo member.
Cited by 1 case · Cites 5 cases
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HCAL 223/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 223 OF 2016 _______________
AND HCAL 224/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 224 OF 2016 _______________
AND HCAL 225/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 225 OF 2016 _______________
AND HCAL 226/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 226 OF 2016 _______________
AND HCMP 3378/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 3378 OF 2016 _______________
AND HCMP 3379/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 3379 OF 2016 _______________
AND HCMP 3381/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 3381 OF 2016 _______________
AND HCMP 3382/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 3382 OF 2016 _______________
Before: Hon Au J in Court Dates of Hearing: 1 ‑ 3 March 2017 Dates of Written Submissions on Permanent Stay: 17, 31 March and 12 April 2017 Date of Judgment: 14 July 2017 ________________________ J U D G M E N T ________________________ A. INTRODUCTION 1.These proceedings raise the important legal questions of whether the oath required by the constitution to be taken by all members‑elect of the Legislative Council (“the LegCo”) was validly taken by the four members-elect herein, and whether in law they should be regarded to have declined or neglected to take the oath, and thereby be disqualified from taking up the office of a LegCo member. 2.Mr Law Kwun Chung (“Mr Law”), Mr Leung Kwok Hung (“Mr Leung”), Ms Lau Siu Lai (“Ms Lau”) and Mr Yiu Chung Yim (“Mr Yiu”) were respectively elected in the general election held in September 2016 to be a member of the LegCo. For convenience, I will refer them collectively as “the Defendants”. 3.However, before the Defendants could validly assume the office (“the Office”) of a LegCo member, as members‑elect, they were mandatorily and constitutionally required under Article 104 of the Basic Law[1] (“BL104”) to take the legislative oath (“the LegCo Oath”) to swear to uphold the Basic Law (“the BL”) and to swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China. 4.The content and form of the LegCo Oath is prescribed by section 16(d) and Schedule 2 of the Oaths and Declarations Ordinance (Cap 11) (“ODO”), which is as follows:
5.Under section 7 of the ODO, a member-elect could opt to make an affirmation instead of taking an oath for the purpose of the LegCo Oath. The form and content of the affirmation shall be the same as the prescribed LegCo Oath, save that an affirmation shall commence with “I, [name of the person] of [address], solemnly and sincerely affirm” and end with “Affirmed at [date] before [the administrator of the affirmation].” 6.Each of the Defendants proceeded to take the LegCo Oath on 12 October 2016 before the Clerk to the LegCo (“the Clerk”) by way of affirmation. For convenience, in this judgment, I would refer to the making of affirmation by each of the Defendants as taking the LegCo Oath. 7.The Clerk administered the oath-taking by Mr Law, Mr Leung and Ms Lau. But he declined the jurisdiction to administer Mr Yiu’s affirmation as he was of the view that Mr Yiu altered the form of the LegCo Oath. 8.On 18 October 2016, the President of the LegCo (“the President”) made a ruling on the validity of the LegCo Oath taken by, among others, Mr Law, Ms Lau and Mr Yiu. For the present purposes, the ruling (“the President’s Ruling”) is in substance that:
9.Ms Lau and Mr Yiu purported to retake the LegCo Oath by way of affirmation respectively on 2 November and 19 October 2016, which have been treated by the President as valid. 10.By way of these proceedings, the Chief Executive (“the CE”) and the Secretary for Justice (“the SJ”) contend that the way and manner in which each of the Defendants purported to take the LegCo Oath on 12 October 2016 was not in compliance with the legal requirements of BL104 and the ODO and in law amounted to declining or neglecting to take the LegCo Oath when requested to do so. In the premises, as a matter of law, they have therefore been disqualified since 12 October 2016 from assuming or entering on the Office and could not be permitted to retake the oath thereafter. The CE and the SJ (collectively, “the Plaintiffs”) therefore also submit that (a) the Clerk’s decision (“the Clerk’s Decision”) in accepting the oath taken by Mr Leung as valid is wrong in law; and (b) the President’s Ruling in accepting that Mr Law’s affirmation is valid, and in allowing Ms Lau and Mr Yiu to retake the LegCo Oath is similarly wrong in law. 11.By way of the judicial reviews, the Plaintiffs seek (a) an order to quash the President’s Ruling and the Clerk’s Decision; (b) declarations that the LegCo Oath purportedly taken by each of the Defendants is invalid, and that the President had no power to administer the LegCo Oath purportedly retaken by Ms Lau and Mr Yiu on 19 October 2016; and (c) declarations that the Defendants have since been disqualified from assuming or entering on the Office. 12.By way of the respective Originating Summonses, in addition to the invalidity declarations, the SJ seeks additionally declarations that (a) each of the Defendants has been disqualified from assuming and entering on the Office or has vacated the same, and the Office purportedly held by each of the Defendants is now vacant; and (b) each of the Defendants is not entitled to act or claim to act as a member of the LegCo. The SJ also asks for an injunction to restrain each of them from acting or claiming to act as a LegCo member. 13.The Defendants oppose these proceedings. They effectively say that what they did in taking the LegCo Oath on 12 October 2016 was legally compliant. Alternatively, even if what they did was not in strict compliance with the legal requirements, they did not in law decline or neglect to take the LegCo Oath on 12 October 2016. They were therefore entitled to be allowed to retake the oath afresh. 14.In light of the above contentions, it is obviously necessary for the court to first identify the legal principles that govern the taking of the LegCo Oath. B. THE LAW GOVERNING THE TAKING OF THE LEGCO OATH 15.The law governing the taking of the LegCo Oath as prescribed under BL104 and the relevant provisions of the ODO has recently been reviewed by the Court of Appeal in CE & SJ v President of LegCo (CACV 224 - 227/2016, 30 November 2016, per Cheung CJHC, Lam VP and Poon JA) (“the CA Judgment”), upholding this court’s first instance judgment (HCAL 185/2016 & HCMP 2819/2016, 15 November 2016) (“the CFI Judgment”), and in the Court of Appeal’s judgment in refusing leave to appeal to the Court of Final Appeal (CACV 224 ‑ 227/2016, 16 January 2017, per Cheung CJHC, Lam VP and Poon JA) (“the CA Leave Judgment”). 16.Before I set out the relevant legal principles governing the taking of the LegCo Oath, it is useful to first remind ourselves the relevant constitutional and statutory provisions pertinent to the requirements for taking the oath. They are as follows. B1. BL104 and the Interpretation 17.First and foremost, the starting point must be BL104 which provides the constitutional requirement that, among others, a LegCo member-elect must take the LegCo Oath before he or she could assume the Office. 18.BL 104 provides as follows:
19.Further, the meaning of the BL104 has also been set out at paragraphs 1 to 3 of the Interpretation (“the Interpretation”) issued by the Standing Committee of the National People’s Congress on 7 November 2016. They provide as follows:
20.The Interpretation as to the true and proper meaning of BL104 is binding on all the courts in Hong Kong. See: Director of Immigration v Chong Fong Yuen (2001) 4 HKCFAR 211 at 222G-H, per Li CJ; the CA Judgment, paragraphs 8, 29, 53 - 58; the CFI Judgment, paragraph 20. 21.In this respect, Mr Lee SC (for Mr Leung) seeks to contend in these proceedings that the Interpretation is not a true and proper interpretation of BL104 as envisaged under Article 158 of the BL, but amounts to an amendment of BL104. As such, it does not and cannot operate retrospectively. 22.However, the Court of Appeal in the CA Judgment at paragraphs 53 - 59, in rejecting a similar argument, has concluded that the Interpretation provides the true and proper meaning of BL104 and takes effect from 1 July 1997. This conclusion is binding on this court. This point is therefore simply not open to Mr Lee to argue.[2] B2. The relevant provisions of the ODO 23.The relevant provisions of the ODO are these. 24.Sections 16 and 19 of the ODO provide as follows:
25.Section 21 of the ODO further provides for the legal consequence of non-compliance by a person who is requested to take an oath as required under the ODO as follows:
B3. The legal requirements for taking the LegCo Oath 26.Upon considering the plain words of BL104, the Interpretation, the relevant provisions in the ODO, the CA Judgment, the CA Leave Judgment, and the CFI Judgment, together with the authorities cited in those judgments, the court has identified the following legal principles which govern the taking of the LegCo Oath as prescribed by BL104. 27.First, it is a constitutional and mandatory requirement that a member elect of the LegCo must properly and validly take the LegCo Oath both in form and in substance as required by the law before he could assume the Office. In other words, taking the LegCo Oath in accordance with the law is a prerequisite and precondition to the assumption of the Office. See: BL104, the Interpretation, paragraph 2(1) and the CA Judgment, paragraph 27. 28.Second, taking the LegCo Oath in form and in substance means, in law, that the oath taker must:
29.Third, under the Exact Form and Content Requirement, the oath taker must accurately and completely read out the oath as prescribed. Further, as set out expressly under paragraph 2(3) of the Interpretation, an oath taker who “intentionally reads out words which do not accord with the wording of the oath prescribed by law, …, 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 [BL104]” (emphasis added). The mischief of “reading out words which do not accord with the wording of the prescribed oath” provided in this paragraph as a matter of plain meaning must cover not only the failure to read out words of the prescribed form of the oath, but also the adding of words or worded messages to the taking of the oath. In the premises, if the oath taker fails to read out the prescribed oath completely and accurately, or seeks to add to the oath other words or worded messages, this would be regarded in law as altering the form and content of the prescribed oath and thus in breach of the Exact Form and Content Requirement. See also the Interpretation, paragraphs 2(1) and (3). 30.This is also consistent with the judgement in Leung Kwok Hung v Legislative Council Secretariat (HCAL 112/2004, 6 October 2004, per Hartmann J) at paragraph 35 - 37, as I will further explain at paragraphs 88 - 91 below. 31.Fourth, under the Solemnity Requirement, the oath taker must take the oath in a such solemn manner. The word “solemn” bears the commonly understood meaning of being dignified and formal.[3] In other words, understood in the context of oath taking, the oath taker has to take the oath in such dignified and formal way and manner which commensurate and is consistent with the respect that should be accorded to the constitutional importance of the oath taking requirement,and to reflect and underline the very serious and important commitment of the oath taker to bind himself or herself to bear true allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and to uphold the BL. See: the Interpretation, paragraphs 2(2) and (3); the CA Judgment, paragraph 26 and 27, per Cheung CJHC, paragraph 72, per Lam VP; the CFI Judgment, paragraphs 31 to 33; and AG v Bradlaugh (1885) 14 QBD 667 at 685, per Brett MR. 32.Fifth, under the Substantive Belief Requirement, the oath taker in taking the oath must at the time of the oath also faithfully and genuinely commit and bind himself or herself to uphold and abide by the obligations set out in the LegCo Oath. See: the Interpretation, paragraph 3; the CA Judgment, paragraph 26 and 27, per Cheung CJHC, paragraph 72, per Lam VP; the CFI Judgment, paragraphs 31 to 33. 33.Sixth, an oath taker who seeks to alter the form, manner or substance of the oath when taking it will offend BL104 and be unlawful and of no effect. See: the Interpretation, paragraph 2(2); the CFI Judgment, paragraph 31, adopting Leung Kwok Hung v Legislative Council Secretariat, supra, at paragraphs 36 - 40. 34.An oath taker would be in law disqualified from assuming or entering on the Office or must vacate the Office if he or she declines or neglects to take the LegCo Oath when requested to do so. In this respect, the oath taker shall be regarded in law to have declined or neglected to take the LegCo Oath if he commits any intentional acts or conducts, which are found not to be compliant with the oath taking legal requirements. See: the Interpretation, paragraphs 2(3) and (4); section 21 of the ODO; the CA Judgment, paragraph 43; the CFI Judgment, paragraphs 34 - 35 and 94 - 100. 35.Seventh, the court is the final arbiter in determining whether an oath taker has declined or omitted to take the LegCo Oath in failing to comply with the legal requirements. See: the CA Judgment, paragraphs 32 ‑ 33. 36.Eighth, the court adopts an objective test in determining this question. In other words, the court would determine whether the manner and way in which an oath taker takes the LegCo Oath when assessed and viewed objectively is compliant with the legal requirements and whether the said manner and way is carried out intentionally or wilfully. See: the CA Judgment, paragraphs 5, 27 and 41; the CFI Judgment, paragraphs 33, 35(1), 38 ‑ 40, 42, 45 and 46. 37.In this respect, given the objective assessment, the court would look at the conducts, manner and words adopted by an oath taker in taking the LegCo Oath with a view to deciding what meaning those conducts, manner and words convey to a reasonable person, and whether he or she intentionally acted in such a way. In this objective exercise, the court is not concerned with the subjective meaning of the conducts, manner and words adopted by the oath taker and the oath taker’s subjective intention or thinking in so doing is irrelevant. Cf: Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 at paragraph 72, per Ribeiro PJ. 38.The above principles are in my view clear in light of the authorities and the constitutional and statutory provisions. However, in support of their opposition in these proceedings, the Defendants’ respective leading counsel have advanced a number of submissions seeking to challenge or qualify the above legal principles. It is convenient for me to deal with these general legal submissions at this stage. 39.First, Mr Lee SC submits that both BL104 and sections 16 and 19 of the ODO have not prescribed expressly for the manner in which the oath should be taken. More importantly, says Mr Lee, these provisions have not provided expressly for the requirement that the oath should be taken “solemnly”. In the premises, Mr Lee argues that as a matter of law, there is simply no requirement that the LegCo Oath must be taken in a solemn and sincere manner, and an oath taker can adopt whatever manner and form he finds most appropriate to express his intention to bind his conscience with the obligations in the oath that he is to take. In further support of this contention, Mr Lee also submits that the modern attitude towards the taking of oaths and affirmation is to regard it as mere ritualistic formality. As such, coupled with the lack of any statutory provisions prescribing the manner for taking the oath, there could not be any legal requirement for taking the oath in a solemn manner. 40.There is nothing in this argument:
41.It is therefore clear and unarguable that a member-elect of the LegCo must take the LegCo Oath in a solemn and sincere manner as a matter of law. 42.Second, Mr Lee further submits that, even if the law requires the oath taker to take the oath solemnly, what manner can or cannot be regarded as “solemn” in a given circumstance has no clear and absolute definition. There must be a range of acceptable conducts and behavior which could be regarded as sufficiently solemn in taking the LegCo Oath. In the premises, Mr Lee says the court in assessing whether a member-elect has taken the LegCo Oath “solemnly” as required by the law, the court should have regard to LegCo’s accepted various rules and practices (collectively, “LegCo Practices”) relating to members’ attire and display of objects in the LegCo.[4] Premised on this, Mr Lee further says that, as a matter of principle, as long as the member-elect takes the LegCo Oath in a manner that accords with the LegCo Practices, the requirement of solemnity is fulfilled. 43.I am unable to accept these submissions. 44.When an act is required to be carried out solemnly, the degree of the requisite solemnity may vary according to the occasion and purpose of which the concerned act is to be carried out. For the present purposes, the requisite degree of solemnity should be measured against the constitutional importance of taking the LegCo Oath and the utmost seriousness of the obligations pledged under the oath. The oath is to swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, and to swear to uphold the BL. These are pledges of utmost constitutional importance and significance, which must be undertaken by the member-elect before he or she could assume the Office. In the premises, the solemnness required of must reflect and commensurate with the high constitutional importance of the occasion and the serious purpose and promise of the oath taking. 45.On the other hand, the LegCo Practices relate to members’ conducts in LegCo’s proceedings and debates in exercising their rights and duties as LegCo members. These are very different matters in nature and purposes when compared with the oath taking occasion as observed above. It is also pertinent to note that a member can only exercise those rights and powers as a member of LegCo after he or she has validly taken the LegCo Oath. Thus, as a matter of general proposition, one cannot necessarily and simply equate what can be regarded as acceptable conducts for a member in making speeches in a LegCo debate with the degree of solemnity required of for the constitutionally important and serious occasion of oath taking. 46.I would therefore reject as a matter of principle the contention that as long as the member-elect takes the LegCo Oath in a way and manner that accords with the LegCo Practices, the legal requirement of solemnity is fulfilled. Whether the concerned oath taking manner or conduct of a member-elect meets the solemnity requirement must be determined and assessed objectively in the individual circumstances of each case. 47.Related to the above contention is also the submissions made by Mr Lee SC and Mr Chan SC (for Ms Lau) that in determining whether a LegCo member-elect’s oath-taking accords with the requisite solemnity, the court should give a wide margin of deference to the relevant President’s decision. Mr Lee’s reasons for the submission are the same as his above submissions, that is that the LegCo’s Practices should constitute the benchmark for measuring the requisite solemnity. I have already rejected the contention above. 48.Mr Chan makes a separate submission in support of this argument. Senior counsel says, given the historical development of the taking of oath to swear allegiance in England, the taking of oaths is closely related to political suppression against non-Christians. Historically, it always served a political function and is always coercive in nature. The content of the oath, and its consequential pledge or allegiance, could change according to the prevailing political climate. He therefore submits that taking an oath is a political act and the purpose of an oath is not about what one believes. The purpose of the oath lies in the act of taking the oath itself, and it is an act to accept the consequences of a breach of the pledge. It is merely a ritual and a formality, imposed by law, the completion of which formality being a means to enforce what is prescribed in the pledge. 49.As such, Mr Chan submits that the determination of whether there is “decline” or “neglect” by an oath taker to take the LegCo Oath is a highly political decision, and in light of its political context which the court does not have the expertise to judge, the court should afford “great weight” to the decision of the oath administrator in determining whether there is “decline” or “neglect” to take an oath. Although as a matter of law, the court is the final arbiter of what constitutes “decline” or “neglect”, in applying the law, Mr Chan says the court has to duly give such great weight to the decision of the politicians. 50.Mr Dykes SC (for Mr Law) has also addressed the court in his skeleton in detail the history of the development of oath taking in England. Based on that, leading counsel similarly submits that the oath taking requirement in the Hong Kong Special Administrative Region is and should be regarded as a mere formality, and as along as the oath taker has complied with the form by reading out all the words of the oath, irrespective of his or her belief in the oath that has been taken, he or she has validly taken the oath. 51.With respect, I am unable to accept these submissions. 52.Paragraph 3 of the Interpretation provides expressly that “[t]he oath taker must sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath taker who makes a false oath, or, who, after taking the oath, engages in conduct in breach of the oath, shall bear legal responsibility in accordance with the law” (emphasis added). The italicized words show clearly that it is our constitutional requirement that the oath taker when taking oath must sincerely and truly believe in it. I therefore cannot accept that the taking of the oath as required in our law under BL104 is only to fulfil a ritual or formality as contended. It is also not only to provide a legal basis to check and punish future breaches by the oath taker of the promise as effectively submitted by Mr Chan and Mr Dykes. It is a constitutional legal requirement that the oath taker in taking the oath must also sincerely and truly believe in the pledges under the oath that he or she is taking. In the premises, in determining whether an oath taker has validly taken the oath, the court is entitled to and should look into, among others, the question (when challenged) as to whether the oath taker has manifested objectively that he or she sincerely and truly believes in the oath at the time when he or she takes it. 53.This is in any event also consistent with the common law position that the law requires the oath taker to genuinely believe in the pledges of the oath as this court has observed at paragraphs 30 - 32 in the CFI Judgment with reference to the common law authorities therein. 54.Further, I also reject Mr Chan’s submission that the determination of whether an oath taker has “declined” or “neglected” to take the oath is a “highly political” decision, and hence the court should invariably give “great weight” to the oath administrator’s view and reasons on this. 55.The question as to what should be the appropriate form and contents of the oath and the allegiances enshrined therein that a State and Parliament seek to impose upon the high public office bearers through the constitution may well be a political one. But once a decision has been made by the State and Parliament on that, and the chosen form and content of the requisite oath have been enacted in the constitution and the relevant statutes to become part of the law of the land, it is solely a question of law whether an oath taken is compliant with the requirements prescribed by the constitution and the relevant statutes. The question of legal compliance is and should not bea political one. 56.In the present context, the issues as to whether a member‑elect’s oath taking is compliant with the legal requirements under BL104 (read together with the Interpretation) and the relevant provision of the ODO (underlying and reflecting the constitutional requirements) are strictly legal questions that the court has to determine. Politics or political arguments do not and should not feature at all in this determination. In this respect, it is pertinent to note that Lam VP has aptly warned against the involvement of politics or political arguments in this judicial process at paragraph 68 of the CA Judgment as follows:
57.It is therefore incorrect to say that the court in determining whether there is “decline” or “neglect” by a member-elect to take the oath in failing to comply with the legal requirements must in general give a wide margin of deference and great weight to the President or the Clerk’s decision in this respect. The extent of the relevance, where appropriate, of the oath administrator’s decision to the court’s determination of the question of the strict legal compliance of a subject oath taking has already been addressed by the learned Chief Judge in the CA Judgment at paragraphs 39 and 40 as follows:
58.Thus, the administrator’s views and reasons may form part of the evidence (insofar as if they are relevant and admissible) for the court to take into account in determining the question of constitutional compliance of the subject oath taking. If and when they are relevant and admissible in an individual case, as the learned Chief Judge has pointed out, the court would then give such appropriate weight as it thinks fit to those views and reasons. What appropriate weight should be given would be dependent upon the nature and basis of that view and reasons, if any, and must be determined on a case by case basis. However, it is incorrect to say that, as a matter of principle or by default, the administrator’s views and reasons must be given “great weight” by the court as Mr Chan submits. This is particularly so as the learned Chief Judge has emphasized that when a question of an oath taking’s constitutional compliance is involved, there can only be “one correct answer” and the court has to be engaged in a full merits review instead of conducting a Wednesbury unreasonableness review. 59.Third, Mr Lee contends that the requirements on oath taking constitute restrictions on the member-elect’s constitutional rights (a) to stand for election, take part in the conduct of public affairs under Articles 26 and 39(2) of the BL (which provides the constitutional basis to incorporate Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) through Article 21 of the Hong Kong Bill of Rights (“HKBOR”)); and (b) of freedom of opinion and expression under Article 27 of the BL, and Article 16 of the HKBOR (incorporating Article 19 of the ICCPR). For convenience, I would refer these rights collectively as “the Purported Rights”. 60.As provided under Article 39(2) of the BL, these rights shall not be restricted unless “prescribed by law”. Mr Lee argues that the present requirements of oath taking are “so vague and uncertain” that they fail to meet the “prescribed by law” requirement. 61.Further, Mr Lee says the restrictions in any event cannot be justified under the four elements of the test of proportionality as now laid down in Hysan Development Co Ltd v Town Planning Board [2016] 6 HKC 58 (CFA) at paragraph 54. 62.In other words, Mr Lee contends that the oath taking requirement is unconstitutional since, as a restriction of the Purported Rights, it is not “prescribed by law” and in any event fails to meet the proportionality test. 63.With the greatest respect to Mr Lee, I am unable to accept these startling submissions. 64.Mr Lee’s submissions, put to its logical conclusion, amount to saying that the court could declare BL104, which itself is a provision of our constitution, to be “unconstitutional” if it does not meet the “prescribed by law” and proportionality requirements. 65.BL104 by itself is part of the constitution. There is no question that it can be said to be unconstitutional. This startling proposition that a court can declare BL104, a constitutional provision itself, to be “unconstitutional” simply cannot stand. 66.In any event, the court should seek to construe all the constitutional provisions within the BL to be consistent with each other. In this respect, it is clear as a matter of construction that, the Purported Rights, which are expressly provided not to be absolute, shall be read to be subject to BL104. 67.I have no hesitation to reject Mr Lee’s above submissions. 68.Fourth, Mr Lee argues that since a member-elect is in effect “penalised” by being prevented from taking up the Office if it is found that he has declined or neglected to take the LegCo Oath, the court must apply the criminal standard of proof of beyond reasonable doubt to find a member-elect has so declined or neglected to take the LegCo Oath. This is particular so as, says Mr Lee, the “penalty” is a very serious one when considered under the context that he or she is elected by the electorate to represent them at the LegCo. 69.I am not persuaded by these submissions. 70.As held by the Court of Appeal in the CA Judgment, taking the LegCo Oath is a constitutional prerequisite or precondition for a member-elect to assume the Office as provided under BL104. Further, it is clear law that a member-elect could not be so qualified to take up the Office if he or she declines or neglects to take the LegCo Oath as provided under the Interpretation and section 21 of the ODO. It is thus clear that the valid assumption of the Office after a successful election is still subject to validly taking the LegCo Oath. Persons running for the election must be taken to know this precondition in law. In the premises, it is incorrect to characterise, as Mr Lee seeks to do, the consequence that a member‑elect would not be qualified to assume the Office if it is found that he has declined or neglected to take the LegCo Oath as a “penalty”. It is not. 71.I would therefore reject the contention that the court should apply a beyond reasonable doubt standard of proof in determining on the evidence as to whether any of the Defendants declined or neglected to take the LegCo Oath in the circumstances of the present cases. 72.The court would adopt the civil standard of proof of balance of probabilities in determining whether the Defendants declined or neglected to take the LegCo. However, in doing so, I accept the submissions by the leading counsel for Mr Law, Ms Lau and Mr Yiu that, in light of the importance of the question, it requires cogent evidence to find on the balance of probabilities that objectively the Defendants did decline or neglect to take the LegCo Oath. 73.Bearing all the above principles in mind, I would now look at each of the Defendants case in turn to determine whether, viewed objectively, he or she declined or neglected to take the LegCo Oath. C. WHETHER EACH OF THE DEFENDANTS DECLINED OR NEGLECTED TO TAKE THE LEGCO OATH ON 12 OCTOBER 2016 C1. The undisputed underlying facts before 12 October 2016 74.It is not in dispute that the Clerk had reminded each of the Defendants (as with all the other members-elect) to take the LegCo Oath on 12 October 2016 by various circulars as follows. 75.On 20 September 2016, the Clerk issued a circular[5] to all members-elect regarding the taking of the LegCo Oath. The circular reminded members-elect that members of the LegCo must swear to uphold the BL and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China under BL104. It further informed all members‑elect that the first meeting of the Sixth LegCo would be held on 12 October 2016 and that under Rule 12(1) of the LegCo’s Rules of Procedure, members-elect should take the oath at the first meeting of a term of the LegCo. It also reminded members‑elect that under Rule 1 of the Rules of Procedure, no member shall attend or vote therein until he or she has made an oath in accordance with the provisions of the ODO. Members-elect were invited to indicate his or her choice among the three versions of the LegCo Oath, drawn up in accordance with sections 5 and 7 of and Part IV of Schedule 2 to the ODO. 76.On 7 October 2016, the Clerk issued another circular[6] to members, concerning the first meeting of the Sixth LegCo that would be held on 12 October 2016, explaining to members the detailed procedures and arrangements of oath-taking at the start of the meeting, as well as the form and manner of oath-taking. In “the points to note for oath-taking by Members”, enclosed to this circular, members were reminded to take the oath in the form and manner prescribed by the ODO, which include reading out all the words of the LegCo Oath prescribed by law. 77.On 11 October 2016, the Clerk issued the third circular[7] to all members of the LegCo. In this circular, members were once again reminded to attend the 1st LegCo meeting on 12 October 2016 on time and to “take the oath” in accordance with the order as set out in the Agenda for the meeting. It also reiterated the requirement under BL104 and that the LegCo must be in the form set out in Schedule 2 to the ODO, and members must say the words of the oath therein. The Government also published a statement on 11 October 2016 on oath‑taking by members-elect of the LegCo as this is a matter of great constitutional importance. 78.The taking of the LegCo Oath by members of the Sixth LegCo was held on 12 October 2016. The entire oath-taking proceeding on that day was captured as Webcast recording which is available on the LegCo website. C2. The oath taking on 12 October 2016 by Mr Law 79.The objective and undisputed evidence shows that Mr Law took the LegCo Oath in the following way and manner on 12 October 2016. 80.Mr Law made the following statement (“the Opening Statement”) upon being requested by the Clerk to take the LegCo Oath:
81.Around three seconds later, Mr Law purported to take the LegCo Oath, adopting an apparent and distinct rising tone whenever he spoke the word “國”:
82.Around one to two seconds later, Mr Law shouted “權力歸於人民，暴政必亡，民主自決，抗爭到底。” (“the Closing Statement”). The Clerk remained silent throughout the purported oath-taking of Mr Law. 83.In the President’s Ruling made on 18 October 2016, the President concluded that the LegCo Oath as taken by Mr Law was valid. The President explained at paragraph 11:
84.The Plaintiffs now submit that, objectively assessed, in purportedly taking the LegCo Oath in the above way and manner, Mr Law did not comply with the legal requirement to faithfully or truthfully commit himself to upholding and abiding the obligations set out in the LegCo Oath. 85.I agree. My reasons are as follows. 86.Objectively understood, Mr Law manifested to a reasonable person at the time of the oath taking that he was only forced by the system and the totalitarian authority to take the LegCo Oath, something which had become a “political tool” used by the political regime:
87.Further, I agree with Mr Mok SC for the Plaintiffs that by making the Opening Statement and the Closing Statement in the way as Mr Law did, he also failed to comply with the Exact Form and Content Requirement for taking the LegCo Oath. I will explain why. 88.As held by Hartmann J in Leung Kwok Hung v the Legislative Council Secretariat, supra, it is a legal requirement that the LegCo member-elect in taking the LegCo Oath must, objectively viewed, comply with the exact form and substance of the LegCo Oath. Hartmann J emphasized that the law “allows only for limited differences as to how a person wishes to take the oath, it does not allow for any real difference in the form – and thereby the substance – of the oath itself.” In this respect, the learned judge also made it clear that altering the form of the LegCo Oath also alters the substance of the oath itself. See paragraph 35. 89.In that case, Mr Leung sought a declaration from the court in an intended judicial review that it was lawful for him to take the LegCo Oath in the following amended form:
90.Although in that amended form, Mr Leung would still purport to swear to uphold the BL and to pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China as required under BL104, Hartmann J (in refusing leave) still concluded that taking the oath in the proposed amended form would offend BL104 and therefore be unlawful as it did not comply with the exact form and substance requirement. He explained this at paragraphs 36, 37 and 40 as follows:
91.In the premises, as a matter of law, an oath taker would be regarded as having failed to comply with the Exact Form and Content Requirement if he seeks to swear by a list of principles, beliefs or truths (whether religious, political, economic, ecological or philosophical, and whether they are controversial or not) not provided in the prescribed form. By the same token, it must similarly (if not a fortiori) be impermissible in law for an oath taker to incorporate or convey in the oath additional worded messages other than the oath itself, whether or not these messages are religious, political, economic, ecological or philosophical, and whether they are controversial or not. 92.This legal position is also consistent with and supported by paragraph 2 of the Interpretation as I have explained at paragraphs 29 and 30 above. 93.Bearing this in mind, when the fact that Mr Law made the Opening and Closing Statements respectively right before and after his reading of the LegCo Oath is viewed together with the contents of the Statements as a whole, objectively, it must appear to a reasonable person that Mr Law intended to convey the worded messages in the Opening and Closing Statements as part of the oath taking itself. In the premises, objectively, he sought to incorporate and convey additional worded messages in the oath taking. This offends the Exact Form and Content Requirement and therefore also BL104. 94.Mr Dykes SC (leading Mr Tam) have made various submissions to contend that Mr Law had properly complied with the legal requirements in taking the LegCo Oath. I will deal with these arguments in turn. 95.First, Mr Dykes submits that, by reference to the history of the development of oath taking in England, the taking of the LegCo Oath is a mere formality and the court should and could not inquire into the question of whether the oath taker genuinely and faithfully believe in the obligations pledged in the oath. Hence, Mr Law should be regarded as having complied with the legal requirements of taking the LegCo Oath as long as he has accurately and completely read out all the words of the oath as a matter of form, which Mr Dykes submits he did. 96.For the reasons I have explained at paragraphs 52 - 53 above, I reject this contention. Both as a matter of express requirement set out in the Interpretation, and as a matter of common law, it is a legal requirement in Hong Kong that the oath taker must take the oath prescribed under BL104 and the relevant provisions of the ODO both in form and in substance, and that the oath taker must faithfully and sincerely believe in and commit himself to the obligations provided in the oath at the time when taking it. 97.Second, linked with the above contentions, Mr Dykes appears also to submit that, given that the historical purpose of taking an oath of allegiance in England is to avert acts of sedition and subversion, as long as Mr Law is not advocating independence of Hong Kong, there would be no infringement of the allegiance obligations in the LegCo Oath. Objectively the court cannot and should not conclude that he did not faithfully and sincerely believe in and commit to those obligations as Mr Law, says Mr Dykes, does not advocate Hong Kong independence. 98.I must also reject this submission. The law requires, among others, the oath taker to faithfully and sincerely believe in and commit himself to the allegiance obligations in the LegCo Oath. This is a question that would be assessed objectively by looking at all the relevant matters pertaining to it. Someone who advocates and supports independence of Hong Kong would obviously be regarded as not having a genuine and sincere intention to commit himself to those allegiances for the reasons already explained in the CFI and CA Judgments. However, as a matter of general principle, this cannot be the only basis or circumstances where the court could conclude that the oath taker has failed to show objectively the requisite faithful and sincere belief and commitment. It must be open to the court to find the same when appropriate in other circumstances. 99.Third, Mr Law has filed an affirmation in this application seeking to explain what he now said to be the real meaning and intention behind making the Opening and Closing Statements, and in reading out the LegCo Oath in the way as he did. In gist, he explained that:
100.Based on these self-professed explanations, Mr Law therefore says he did intend to commit to and abide by the obligations pledged in the LegCo Oath. This is particularly so, Mr Law emphasized, as there were no good reasons why he would intentionally flout the requirements of taking the LegCo Oath and risk giving away the Office after spending substantial effort and expenditures to run for and win the election in the first place. 101.With respect, I will also reject this contention. 102.As the Court of Appeal has emphasized in the CA Judgment, the court adopts an objective assessment of the evidence relevant to the oath taking to determine whether the oath taken is compliant with the legal requirements. As I mentioned above, in adopting the objective assessment, the court is to determine what a reasonable person would objectively understand the meaning from the words, conducts and manner adopted by the oath taker in taking the oath. In that exercise, the court must also apply a degree of common sense. However, in the objective assessment, the court is not concerned with the subjective intention of the oath taker in adopting the subject words, conducts and manner or the subjective meaning the oath taker seeks to accord to those words, conducts and manner. Hence, evidence on such subjective intention, thought process or meaning are irrelevant to the object exercise. 103.Mr Law’s subjective explanations now set out in his affirmation and summarized above are in nature matters relating to his subjective thought process, intention and meaning in adopting the complained conducts in taking the LegCo Oath. As a matter of law, they are not relevant to the court’s objective assessment as to whether the way and manner in which Mr Law purported to take the LegCo Oath complied with the legal requirements. 104.Further and in any event, even if the court was to take into account these explanations, I do not find them to support Mr Law’s contentions that he had complied with the oath taking legal requirements. 105.First of all, these subjective explanations simply cannot be accepted to displace, in the objective assessment, the clear meaning of the words, conducts and manner adopted by Mr Law in taking the LegCo Oath. This is so as they are clearly inconsistent with those objective meanings found by the court above:
106.Further and in any event, in the subjective explanations, Mr Law confirms that he seeks to convey other “political messages” in the oath-taking itself. This would clearly violate the Exact Form and Content Requirement in taking the LegCo Oath. 107.For these reasons, I also reject Mr Law’s contentions based on his subjective explanations. 108.Fourth, Mr Law says what he did in making the Opening and Closing Statements, and in adopting a rising tone in reading out the word “國” when taking the oath is consistent with, or no different from in nature with many other past practices adopted by various LegCo members-elect in taking the LegCo Oath in previous LegCo terms. All these previous oath takings had been accepted by the Clerk or the President and had not been challenged by the CE or SJ. In fact, it was only after he had researched and studied all these past practices (and knowing that they had not been declared invalid) that he adopted the manner and way in which he took the LegCo Oath. This, he says, further shows that he never had an intention to flout the legal requirements in taking the LegCo Oath. He says in the premises, even if as a matter of law the court finds him not to have complied with the legal requirements in taking the LegCo Oath, he did not intend to so flout the law, and therefore he did not “decline” or “neglect” to take the LegCo Oath. He should therefore not be disqualified from taking the Office but be permitted to retake the LegCo Oath again. 109.I am also unable to accept these submissions. 110.Given the objective test, in determining whether an oath taker has in law declined or neglected to take the oath, it would be sufficient to find that (a) the oath taker intended to adopt the very words, conducts and manner which are under challenge to take the oath; and (b) the said words, manner and way on an objective construction are found to be not in compliance with the oath taking legal requirements. It is not a necessary element for the court to be satisfied that the oath taker has a specific intent to flout or not to comply with the very legal requirements. Of course, if it can be established on an objective assessment that the oath taker indeed intended not to comply with those specific legal requirements in taking the oath, it would be a fortiori that he or she has declined or neglected to take the oath. 111.In any event, the fact that an oath administrator (ie, the Clerk or the President) on other occasions had not taken issues on certain allegedly similar manner and way in which the LegCo Oath was taken could not support Mr Law’s contentions that what he did in the present case should also similarly be regarded as having complied with the oath taking’s constitutional legal requirements. The court is not bound by any previous conclusions made by the oath administrator. As emphasized by the Court of Appeal in the CA Judgment, the court is the final arbiter on the question of whether an oath taker has properly complied with constitutional requirements for the oath taking and whether he or she has declined or neglected to take the oath. In any event, every case must be decided on its own facts. 112.In the premises, based on the indisputable facts in the present case, the court is satisfied that, as a matter of law, objectively Mr Law declined or neglected to take the LegCo Oath on 12 October 2016 as:
113.He has therefore been disqualified in law from assuming or entering the Office since 12 October 2016. The President therefore erred in law in his decision in ruling that Mr Law has validly taken the LegCo Oath, and that decision should be quashed. 114.Further, it follows that since 12 October 2016, Mr Law has claimed to be entitled to act as a LegCo member when he is not so entitled. The court should also grant the declarations and injunction under section 73 of the Legislative Council Ordinance (Cap 542) (“LCO”) as sought by the Plaintiffs under HCMP 3379/2016. C3. The oath taking on 12 October 2016 by Mr Leung 115.The objective and undisputed evidence shows that Mr Leung took the LegCo Oath in the following way and manner on 12 October 2016. 116.According to the video footage, after the Clerk called Mr Leung’s name requesting Mr Leung to walk up to the table at the centre of the chamber to take the LegCo Oath in accordance with the predetermined order, Mr Leung, who was wearing a black t-shirt with the words “公民抗命”[9] printed thereon, walked down the hallway to the table, carrying an opened yellow umbrella (with many words written thereon, including “結束一黨專政”[10]) in his right hand and a paper board showing the words “人大831決議”[11] (with a cross on it) in his left hand and shouted in Cantonese “雨傘運動！不屈不撓！公民抗命！無畏無懼！人民自主自決！無須中共批准！我要雙普選！梁振英下台！”.[12] 117.When Mr Leung reached the oath-taking table, he put the paper board on the table, continued holding the yellow umbrella in his right hand and said the following in Cantonese (“the Statement”):
118.Mr Leung then paused for around two seconds and started reading words of the LegCo Oath in Cantonese with a much louder voice and in a truncated manner as follows (with the opened yellow umbrella in his right hand):
119.Around one second after he had read out the words of the LegCo Oath, Mr Leung (a) shouted “撤銷人大831決議！我要雙普選！”;[15] (b) put down the yellow umbrella on the table, opened with the top of the umbrella pointing away from him; (c) tore a piece of paper with the words “人大831決議”[16] (without a cross on it) into pieces while shouting “撤銷人大831決議！撤銷人大831決議！我要雙普選！人民自主自決！無須中共批准！”;[17] (d) threw the pieces of paper away towards the ceiling; and (e) left where he had been standing with his other props. 120.The Clerk did not say anything about Mr Leung’s purported oath-taking immediately following his departure and thereafter. As such, the Clerk effectively regarded the oath purportedly taken by Mr Leung on 12 October 2016 as valid. 121.Mr Mok first submits that the way in which Mr Leung took the LegCo Oath through the means of conduct, words and paraphernalia as described above shows clearly and objectively that he did not take the oath in the requisite solemn and sincere manner. Mr Leung therefore failed to comply with the Solemnity Requirement and the LegCo Oath purportedly taken by him is therefore unlawful. 122.I agree. 123.As I have explained above, under the Solemnity Requirement, as a matter of law, an oath maker must take the LegCo Oath in a solemn and sincere manner which is objectively consistent with and commensurate with the constitutional importance of the oath taking ceremony and procedure, and the seriousness of the pledges of allegiance enshrined in the oath. 124.Moreover, given the fundamental constitutional importance of the requirement to take the LegCo Oath, and the utmost seriousness expected of the oath taker in making the constitutionally required pledges in the oath, the objective solemnness and sincerity required of in the procedure should be such that the oath taker must take the oath in such a formal and dignified manner that demonstrate to a reasonable person the oath taker’s high degree of respect and seriousness given to the oath taking procedure and the oath itself. This is also to demonstrate to the public the oath taker’s sincere and substantive belief in pledging his allegiance as required by the constitution. 125.In my view, the manner in which Mr Leung took the oath goes well outside an objective reasonable range of such requisite solemnity and sincerity:
126.In the premises, on any objective view, the above acts and conducts of Mr Leung, whether viewed independently or collectively, show that Mr Leung did not take the LegCo Oath with the requisite solemnity and sincerity as required by the law. He therefore failed to satisfy the Solemnity Requirement. 127.Moreover, Mr Leung’s chanted slogans were all carried out after he had been requested by the Clerk to take the LegCo Oath, and close to and after the reading of the LegCo Oath. In the circumstances, viewed objectively, I also agree with Mr Mok that it is clear that Mr Leung also sought to incorporate as part of the oath taking itself additional worded messages through his chanted slogans. For the reasons I have set out at paragraphs 91 and 92 above, he also therefore failed to comply with the Exact Form and Content Requirement. The oath taking is unlawful and invalid. 128.Again, there is no doubt that he intended to adopt and carry out those acts and conducts, which objectively viewed did not comply with the Solemnity Requirement and the Exact Form and Content Requirement. Mr Leung therefore declined or neglected to take the LegCo Oath when requested to do so on 12 October 2016. He should since 12 October 2016 be disqualified in law from assuming the Office, and there is no question of retaking the oath. 129.Mr Leung has raised a number of contentions as to why he should be regarded in law to have complied with the constitutional legal requirements in taking the LegCo Oath, or alternatively, he should be allowed to retake the oath. I would look at them in turn as follows. 130.First, Mr Lee SC (for Mr Leung) submits that there is no requirement in law prescribing an oath taker to take the LegCo Oath in a solemn manner. There is nothing in this. I have dealt with and rejected these submissions at paragraphs 39 - 41 above. 131.Second, Mr Lee contends that even if it is necessary in law to take the LegCo Oath solemnly, Mr Leung’s conducts and acts in the present case are entirely consistent with the LegCo Practices and similar conducts and acts adopted by Mr Leung himself and other LegCo members-elect in previous oath takings, which all had been in the past accepted to be valid by the Clerk or the President. The court should take these into account to conclude that Mr Leung’s conducts in the present case fall within the acceptable range of solemnity required for taking the LegCo Oath. 132.For the same reasons I have set out at paragraphs 44 ‑ 58 above, I reject this contention. 133.Third, Mr Leung (like Mr Law) also argues that he had no subjective intention in flouting the legal requirements for taking the LegCo Oath, as he was under the impression that what he did would be acceptable by reason of the past practices. He therefore did not intentionally breach the legal requirements for validly taking the oath, and should be allowed to re-take the oath even if the court finds that he did not comply with the legal requirements in taking the LegCo Oath on 12 October 2016. 134.For the same reasons I have explained at paragraph 110 ‑ 111 above, I cannot accept this argument. 135.Fourth, Mr Lee SC submits that, given the significant consequence of disqualification in being found to have failed to comply with the legal requirements for oath taking, as a matter of law, there should be a high degree of fairness in this context which requires that:
136.There are no merits in these submissions. 137.It is a requirement of the law (whether under BL104 or the common law) that an oath taker must take the oath in a solemn and sincere manner. Members-elect are expected to know the law, and ignorance of the law is never a valid excuse for failing to comply with it. As a matter of fact, Mr Leung himself has confirmed that he has always understood that he has to take the LegCo Oath seriously, solemnly and sincerely.[18] 138.Solemnity and sincerity are commonly understood words, and need no specific guidelines. It is true that the degree and extent of solemnity and sincerity required of may vary in different circumstances and occasions. But in an objective test, what the law requires is that the oath taker’s conducts or acts in taking the oath would be regarded as falling within the range of the degree of solemnity regarded by an ordinary and reasonable person to be commensurate and consistent with the oath taking occasion, having regard to its importance and seriousness. This is a matter of objective common sense. It is neither necessary nor practicable to impose clear and definite guidelines as submitted by Mr Lee. 139.Finally, Mr Leung has deposed in his affirmation that he was indeed serious and solemn in taking the LegCo Oath on 12 October 2016 and why he genuinely commits himself to the pledge of allegiance under the oath notwithstanding the way and manner in which he took the oath. He explained in substance at paragraph 89 as follows (footnotes omitted):
140.As I have repeatedly said above, these subjective explanations relating to Mr Leung’s subjective thinking and thought process are not relevant to the objective assessment that the court adopts in determining whether Mr Leung’s oath taking complied with the legal requirements. 141.In any event, these explanations (which relate to his subjective intention to commit to the pledges in the LegCo Oath) do not assist Mr Leung. They do not impact in any way on the court’s conclusion that the way and manner in which Mr Leung took the LegCo Oath did not objectively comply with the Solemnity Requirement. Further, they indeed confirm that Mr Leung sought to incorporate in the oath taking itself additional worded messages. This by itself violates the Exact Form and Content Requirement as I have explained above. The oath taking by Mr Leung therefore did not comply with the legal requirements and is invalid in law. 142.For all the above reasons, I conclude that Mr Leung declined or neglected to take the LegCo Oath when requested to do so on 12 October 2016. He is therefore disqualified from assuming the Office as a matter of law and is not entitled to claim to act as a LegCo member. 143.The Clerk’s Decision to accept Mr Leung’s purported affirmation of the LegCo Oath as valid is therefore wrong in law and should be quashed. 144.Further, it follows that Mr Leung has claimed to be entitled to act as a LegCo member when he is not so entitled. The court should grant the declarations and injunction under section 73 of the LCO as sought by the Plaintiffs under HCMP 3382/2016. C4. The oath taking on 12 October 2016 by Ms Lau 145.The objective and undisputed evidence shows that Ms Lau took the LegCo Oath in the following way and manner on 12 October 2016. 146.According to the video footage, Ms Lau was requested by the Clerk to walk up to the table at the centre of the chamber to take the LegCo Oath in accordance with the predetermined order. Ms Lau purported to take the LegCo Oath by first saying the following in Cantonese (“Ms Lau’s Opening Statement”):
147.She then purported to read out the following words of the LegCo Oath at a slow pace with a clear pause lasting about six seconds or so from one character to the next following:
148.At this juncture, the Clerk interjected and informed Ms Lau that she had altered the contents of the LegCo Oath and if she did so he would not have jurisdiction to administer her oath. He requested Ms Lau to take the LegCo Oath afresh. In the course of the exchanges between the Clerk and Ms Lau, she also uttered the words “國”, “無呀” and “點樣改變呀？”. 149.Ms Lau then purportedly read out the words of the LegCo Oath again, also at a slow pace, uttering character by character, with a similar long pause from one word to the next following (except for her own name). Having spent around 10 minutes reading out the words of the LegCo Oath in this manner, she ended her oath taking with the statement (“Ms Lau’s Closing Statement”) “爭取全民退休保障，落實墟市政策，捍衛香港人生活尊嚴”,[20] this time at a normal pace. 150.The entire oath-taking lasted for a total of around 13 minutes. The Clerk did not say anything about Ms Lau’s purported oath-taking afterwards. 151.Further, Ms Lau made the following statements about her above oath taking on Facebook webpage and the media as follows. 152.On 13 October 2016, Ms Lau posted on the public Facebook webpage for her political affiliation “Democracy Groundwork” or “小麗民主教室” a statement (“the FB Statement”) in Chinese explaining her conduct during her purported oath-taking on 12 October 2016. The FB Statement started with the following remarks:
153.Following the opening remarks, the post was entitled 【劉小麗：慢讀是要彰顯誓詞的虛妄】,[22] within which Ms Lau expressed her views against the “core of the lies” that is the Hong Kong Special Administrative Region Government, and stated that the whole of the BL and the political system including the CE are not established through the will of the people and hence are illegal, the details of which are as follows:
154.Ms Lau had also explained to the media the rationale of her 6‑second pause in between each word of the LegCo Oath, which was reported in Apple Daily’s article (“the Apple Daily Article”) dated 13 October 2016, in which Ms Lau stated, among others, the following:
155.In the President’s Ruling made on 18 October 2016, the President ruled that the oath purportedly taken by Ms Lau was invalid, but allowed her to retake the oath. In making this decision, the President stated the following (at paragraphs 8 and 9):
156.The Plaintiffs now submit that this is a clear case that, objectively viewed, Ms Lau did not genuinely and faithfully accept and thus bind and commit herself to the obligations pledged in the LegCo Oath. 157.I agree. 158.The way in which Ms Lau read out LegCo Oath by breaking up each of the words therein with a some 6-second pause in between each of these words would objectively and unquestionably lead a reasonable person to conclude that she did not intend to convey any meaning of the contents and pledges of the LegCo Oath when reading it out. All the individual words of the LegCo Oath were read out in an incoherent and unlinked manner when she adopted a mechanical manner in reading out each of the words with an approximately 6-second break of silence. Objectively, in so doing, no useful meaning of the very contents of the oath (which is only established through the linking up of the individual words therein in a coherent way) was intended to be conveyed to a reasonable person. 159.On this basis alone, I have no hesitation in coming to the conclusion that, objectively looking at the manner and way in which Ms Lau purported to take the LegCo Oath, Ms Lau did not manifest an intention to genuinely and faithfully accept (and hence commit and bind herself to) the obligations of the pledges embodied in the LegCo Oath. She has clearly failed to comply with the Substantive Belief Requirement. 160.Moreover, the objective conclusion that Ms Lau did not intend to commit herself to the obligations therein is indeed confirmed by herself. As mentioned above, in the FB Statement, Ms Lau stated in no uncertain terms that what she purportedly read on the day of taking the LegCo Oath was ninety-odd unrelated and independent word-sentences, entirely devoid of coherence and meaning (“昨天，我將官方誓詞逐字宣讀。誓詞變成九十多句毫無連貫性的句子，沒有任何組合、連結及意義，令聽眾無法聽到任何句式及語氣”). 161.As Mr Mok submits, the court is entitled to take into account Ms Lau’s above admission made shortly after taking the purported oath on 12 October 2016. Such evidence would be admissible, and only limitation with regard to time is that it must not be beyond such time as would prevent reasonable men from acting upon it: AG v Bradlaugh (1885) 14 QBD 667 at 699, per Brett MR, and 711, per Cotton LJ. 162.There is therefore no question that Ms Lau did not comply with the Substantive Belief Requirement in taking the LegCo Oath. 163.Further, I accept Mr Mok’s further submissions that Ms Lau also violated the Exact Form and Content Requirement in incorporating additional messages in the oath itself. 164.Again, Ms Lau made the Opening Statement and Closing Statement respectively right before and after the reading out of the LegCo Oath, and after she had been requested to take the oath. In the circumstances, objectively viewed as a whole, these statements were made as part of the oath taking itself. Ms Lau therefore sought to convey additional worded messages (those two statements) in the oath taking, which is not permissible in law. The oath taking therefore also did not comply with the Exact Form and Content Requirement and is unlawful and invalid. 165.Finally, it is obvious that she intended to take the LegCo Oath in the slow-paced manner and made the Opening and Closing Statements in the way she did, which objectively viewed, did not comply respectively with the Substantive Belief Requirement and the Exact Form and Content Requirement. In law, she therefore declined or neglected to take the LegCo Oath when requested to do so on 12 October 2016. 166.Mr Chan SC for Ms Lau has put forward a number of contentions arguing that she has validly taken the LegCo Oath. They are as follows. 167.First, Ms Lau has deposed in her affirmation filed in these proceedings at length the reasons as to why she took the LegCo Oath in the way she did. In substance, she emphasized that she had always been interested in the study of linguistics, and the 6-second pause for each of the words when reading out the LegCo Oath was indeed a deliberate manner she had worked out as a result of her study and research in linguistics and past practices adopted by other LegCo members-elect in taking the LegCo. She intended to make use of the “effect” of “silence” as a linguistic skill to underline and highlight the message to the public the “hypocrisy” of some LegCo members (but who have not been identified by Ms Lau) who “treated the oath as going through the motion” and to convey the message that “their fluent oaths are hypocritical”. In particular, she now maintained that by taking the oath at a slow pace, she wished to “contrast with some LegCo members that [she] was indeed solemn and sincere and was taking [her] oath seriously.” She said in so doing, she was “inviting the public to reflect on the true meaning behind taking an oath through [her] solemn and sincere way of oath-taking”. She wished to “bring to the public attention the hypocrisy of some LegCo members behind their fluent but insincere oath-taking”. Ms Lau emphasised that she “did not intend [her] oath to be meaningless. To the contrary, [she] very much intended [her] oath to be meaningful”, as she “wished that [her] oath could allow the public to reflect on the true meaning behind taking an oath”. See: Ms Lau’s affirmation, paragraphs 56 - 84. 168.Ms Lau also said the FB Statement and the media interview as reported in the Apple Daily Article (which she said in any event did not fully reflect everything she had said in the interview) should also be understood in the above way. All that she was trying to say and convey by way of the FB Statement and her explanations to the media is to similarly highlight the hypocrisy of some LegCo members behind their fluent but insincere oath-taking and to arouse the public to reflect to this question. 169.With respect, I am unable to accept this contention. 170.Ms Lau’s self-explanations are in nature evidence and matters of her alleged subjective thought process and subjective intention in adopting the slow-paced reading. They also relate to what alleged subjective meaning she seeks to accord to that conduct. As I mentioned above, they are irrelevant to the objective assessment of whether the oath taking was legally compliant. The court would not take them into account in construing what meaning Ms Lau’s manner and way adopted in taking the LegCo Oath would be conveyed to a reasonable and objective person at the time of the oath taking. 171.In this respect, Mr Chan SC fairly recognises that the court is to apply an objective test in assessing Ms Lau’s conducts and words in taking the LegCo Oath, and that the subjective thinking of Ms Lau is strictly speaking irrelevant to the objective exercise. Leading counsel however argues that what Ms Lau has sought to explain in her affirmation should be taken as the relevant background and context against which the court should construe objectively what a reasonable person would have understood her slow-paced reading of the LegCo Oath to mean. In particular, Mr Chan says, in the context as explained by Ms Lau, if it is unequivocal as to what she could be reasonably and objectively understood to mean, the court should accept an interpretation favourable to her since there would be a lack of cogent evidence supporting a breach of the legal requirements. 172.With respect to Mr Chan, the objective context and background relevant to an objective construction should be ones that would have been reasonably known to a reasonable person present at the time of the oath taking. In this respect, I am unable to see how it could possibly be said that those subjective explanations I have summarised above as to Ms Lau’s interest and study in linguistics and her “intention” to convey the message to the public to underline the “hypocrisy” of other unidentified members of the LegCo could and would have been reasonably and objectively known to a reasonable person. The same applies to the construction of the FB Statement and Ms Lau’s explanations to the media made shortly after 12 October 2016. 173.I must therefore also reject this contention, and would not take into account Ms Lau’s above explanations in considering the objective meaning that would be conveyed to a reasonable person by her slow-paced reading of the LegCo Oath. 174.In any event, I also accept Mr Mok’s submissions that even if the court was to take into account Ms Lau’s purported explanations, they simply do not assist her. In my view, the objective meaning and effect of the peculiar way in which Ms Lau read out the LegCo Oath as this court has found above is so obvious and unequivocal that Ms Lau’s self-explanations as to its underlying meaning and message simply could not be accepted to have any bearing on the objective construction so as to displace it. 175.For these reasons, I reject this contention based on the self-explanations. 176.Second, Mr Chan submits that the court should give due respect and weight to the Clerk’s decision in not treating Ms Lau’s oath taking on 12 October 2016 to be invalid. Alternatively, Mr Chan similarly says the court should give due weight to the President’s decision to allow her to retake the oath. Mr Chan therefore submits that the court should be very slow in coming to a conclusion which is different from either the Clerk’s decision or the President’s Ruling. Mr Chan’s bases for these submissions are that a decision on the compliance of taking an oath of allegiance is in nature a political one and what constituted acceptable etiquette in so doing would be a matter that would be judged in light of the tradition, culture, history and values of the LegCo. The Clerk and the President who have administered so many LegCo Oaths and who are familiar with the LegCo practices are the best persons to make these decisions. 177.I have considered these submissions as a matter principle above at paragraphs 54 - 58 and rejected the same. For those same reasons, I reject this argument. In any event, I have explained above why Ms Lau is regarded clearly in law to have declined or neglected to take the LegCo Oath by adopting the slow-paced reading. There is nothing stated by the President in his decision that would persuade me that my conclusion is incorrect. 178.Third, Mr Chan submits that whether Ms Lau had declined or neglected to take the LegCo Oath must be determined at the time of taking the oath. Thus, the court should ignore the FB Statement and the Apple Daily Article. These are, Mr Chan says, ex post facto statements which are not relevant to the question that needs to be determined. 179.I am unable to accept this. 180.The FB Statement and the media explanations as objectively construed are in the nature of post event admission. These have always been admissible as evidence. 181.In any event, as I have said above at paragraphs 158 and 159, by objectively looking at Ms Lau’s slow-paced reading of the LegCo Oath alone without reference to the FB Statement and the Apple Daily Article, the court has already come to the clear conclusion that she manifested no intention to accept and commit herself to the LegCo Oath obligations. 182.For all the above reasons, I reject all of Ms Lau’s arguments to say that she had validly complied with the oath taking requirements in purportedly taking the LegCo Oath on 12 October 2016. 183.This is an obvious case that in law Ms Lau declined or neglected to take the LegCo Oath when requested to do so on 12 October 2016. She has since been disqualified as a matter of law from assuming or entering on the Office. 184.In the premises, the President’s Ruling in allowing her to retake to the LegCo Oath is wrong in law and should be quashed. 185.The court should also declare that the Office held by Ms Lau has become vacant since 12 October 2016 and that she has since wrongfully claimed to be entitled to act in the Office as sought by the Plaintiffs. There should also be an injunction restraining her from so acting or claiming to be so entitled to act. C5. The oath taking on 12 October 2016 by Mr Yiu 186.The objective and undisputed evidence shows that Mr Yiu took the LegCo Oath in the following way and manner on 12 October 2016. 187.According to the video footage, following the request made to Mr Yiu by the Clerk for him to take the LegCo Oath, Mr Yiu purported to take the LegCo Oath by reading out in Cantonese words which do not accord with the wording of the LegCo Oath as prescribed by the ODO in the following terms (the underlined words are not in the LegCo Oath as prescribed by the ODO):
188.At this juncture, the Clerk told Mr Yiu that since Mr Yiu had added words to the oath and thereby amended the oath, he (ie, the Clerk) had no jurisdiction to administer the oath for Mr Yiu, and requested Mr Yiu to take the LegCo Oath again according to the prescribed form and content, otherwise, Mr Yiu would not be allowed to attend LegCo meetings according to Rule 1 of the Rules of Procedure of the LegCo. 189.Mr Yiu said in response, “好呀”, then said the following (again, the same underlined words are not in the prescribed form of the LegCo Oath):
190.At this point, the Clerk stated that Mr Yiu added words immediately after the oath which were not contained in the prescribed form and that he had no jurisdiction to administer the oath for Mr Yiu, and asked Mr Yiu to return to his seat. 191.In the President’s Ruling made on 18 October 2016, the President confirmed the Clerk’s above decision and ruled that Mr Yiu did not validly take the LegCo Oath on 12 October 2016, but the President allowed Mr Yiu to retake the oath. In making this decision, the President stated the following (at paragraphs 6 and 7):
192.At the next LegCo meeting on 19 October 2016, Mr Yiu purportedly “retook” the LegCo Oath before the President at the LegCo meeting. 193.Mr Mok now submits that, objectively looked at, in taking the LegCo Oath on 12 October 2016, Mr Yiu had clearly breached the Exact Form and Content Requirement, by intentionally added the extra words (“the Extra Words”) “定當守護香港制度公義，爭取真普選，為香港可持續發展服務”[36] in the prescribed content of the oath. Mr Yiu therefore had declined or neglected to take the LegCo Oath on 12 October 2016. 194.I agree with Mr Mok. 195.As described above, Mr Yiu purported to take the LegCo Oath twice on 12 October 2016. 196.When requested by the Clerk to take the LegCo Oath on 12 October 2016, Mr Yiu first purported to take the LegCo Oath by uttering the following: “本人姚松炎，謹以至誠，據實聲明及確認，本人就任中華人民共和國香港特別行政區立法會議員，定當守護香港制度公義，爭取真普選，為香港可持續發展服務，定當擁護《中華人民共和國香港特別行政區基本法》，效忠中華人民共和國香港特別行政區，盡忠職守，遵守法律，廉潔奉公，為香港特別行政區服務。” (underlined are the Extra Words) 197.There can be no dispute that the Extra Words are not in the prescribed form of the LegCo Oath. By adding these words in the middle of the oath, plainly Mr Yiu had breached the Exact Form and Content Requirement which thereby rendered that oath taking invalid as a matter of law. 198.The only other question left is whether objectively he intended to add the Extra Words in the middle of the oath as he did. If so, he would be regarded in law as having declined or neglected to take the LegCo Oath, and be disqualified from taking the Office and should not be permitted to retake the oath again. 199.Objectively assessed, I agree with Mr Mok that Mr Yiu intended to do so:
200.As such, Mr Yiu did decline or neglect to take the LegCo Oath when requested to do so in failing to comply with the Exact Form and Content Requirement in the first attempt. He should have already been disqualified from taking the Office then and not be permitted to retake the oath. 201.In any event, there is no question in my view that Mr Yiu must be regarded in law to have declined or neglected to take the LegCo Oath in accordance with the law in the second time when requested by the Clerk to do it again. This is so because:
202.In the circumstances, as a matter of law, Mr Yiu in any event should be disqualified from assuming the Office after the second attempt in purporting to take the LegCo Oath on 12 October 2016. 203.Mr Yiu raises a number of contentions to say why he did not decline or neglect to take the LegCo Oath on 12 October 2016. 204.First, he says it was not his intention to alter the form or substance of the LegCo Oath by adding the Extra Words. In support, Mr Yiu has filed an affirmation to explain why he took the LegCo Oath in the way as he did in the first and second attempts. In substance, he explained that:
205.Again, Mr Yiu’s above explanations as to why he took the LegCo Oath in the way as he did are in nature matters and evidence of his subjective intention and thought process. They are irrelevant to the objective question of whether his oath taking complied with the relevant legal requirements, and whether he declined or neglected in law to take the LegCo Oath in so doing. 206.In any event, even if the court was to take these explanations into account, they indeed fortify the conclusion that, objectively, Mr Yiu declined or neglected to take the LegCo Oath on 12 October 2016. 207.In relation to the first attempt, Mr Yiu states that, when reading the LegCo Oath, he realised that he “accidentally picked up” the additional sentence which he had “intended to add at the end”. Nevertheless, he decided to “carry on reading”. In the premises, whether or not the original utterance was inadvertent, his own evidence confirms that he consciously deviated from the contents of the oath when he decided to “carry on reading”. Hence, even on his own case, he did at the material time intend to read out the Extra Words in the middle of the entire LegCo Oath as a whole, which objectively assessed in law offends the Exact Form and Content Requirement. As a matter of law, he had declined or neglected to take the LegCo Oath and should be disqualified from assuming the Office. 208.In relation to the second attempt, in his own evidence, it is clear that he indeed intended to add and read out the Extra Words at the end of the LegCo Oath. For the reasons I have explained above, objectively viewed, the way and manner in which he read out those words immediately and continuously after the LegCo Oath would lead a reasonable person to understand him as reading out the Extra Words by treating them as part of the LegCo Oath. This would be altering the form and content of the LegCo Oath and thereby unlawful. As such, objectively assessed as a matter of law, Mr Yiu declined or neglected to take the LegCo Oath at least in his second attempt in any event. He shall equally be disqualified from assuming the Office in law. 209.Mr Yiu claims in his affirmation[37] that it is his understanding that there is no prohibition on insertion of words before, in between, or after the LegCo Oath, and it is only unlawful to alter the substance of the LegCo Oath on the pledges. He also claims that although he was referred to the authority of Leung Kwok Hung v Legislative Council Secretariat, supra, in the LegCo circulars, he was not provided a copy. Presumably what he wanted to highlight by this claim is that he had not read the authority in forming his (mis)understanding of the legal position. 210.With respect, this could not assist Mr Yiu at all:
211.I therefore reject this contention. 212.Second, Ms Eu SC for Mr Yiu submits that in deciding whether Mr Yiu declined or neglected to take the LegCo Oath on 12 October 2016, the Plaintiffs have to establish that Mr Yiu “intentionally and deliberately flouted” the legal requirements under BL104 and the ODO when taking the LegCo Oath as he did. 213.I disagree. As I have explained in paragraph 110 above, given the objective test, all that the Plaintiffs have to satisfy the court is that (a) objectively, Mr Yiu intended to add the Extra Words in the way as he did; and (b) the Extra Words so added, objectively viewed, altered the form or substance of the LegCo Oath. It is not necessary to show that Mr Yiu intended to flout the specific legal requirement. 214.Third, Ms Eu submits that the substantive legal test of a valid oath is whether, viewed objectively, the oath taker can be seen to give his pledge in relation to the three aspects of the oath, namely, to uphold the BL, to bear allegiance to the Hong Kong Special Administrative Region and to serve the Hong Kong Special Administrative Region conscientiously. Hence, even though a valid oath has to be correct in form and substance, the oath taker is only to be disqualified from assuming the office if he intentionally refuses to be bound by or give the above three pledges of the oath. In relation to this question, Ms Eu submits that Mr Yiu’s evidence (as summarised above at paragraph 204) is clearly relevant, which negates any conclusion that he refused to be bound or give the pledges. 215.With respect, I am unable to accept these submissions. 216.As a matter of law, paragraph 2(3) of the Interpretation expressly provides that “An oath taker who intentionally reads out words which do not accord with the wording of the oath prescribed by law … shall be treated as declining to take the oath”. In other words, an oath taker must not intentionally do any acts to change the form of the oath when taking it. Compliance with the exact form of the oath is therefore a separate and distinct legal requirement for a valid oath taking. 217.In any event, in Leung Kwok Hung v Legislative Council Secretariat, supra, Hartmann J has already held at paragraphs 35 - 36 (as quoted above) that in law an alteration in the form of the oath is also a change in the substance of the oath itself. 218.Further, the court assesses objectively whether an oath taker intentionally change the form of the LegCo Oath when taking it. 219.Fourth, Ms Eu submits that since the Court of Appeal in the CA Judgment at paragraphs 39 - 40, 79 and 95 has emphasized that the court in hearing a challenge on the validity of an oath taking has to be engaged in a full merits review (which approach is binding on this court), the court must have had regard to all the relevant objective evidence put forward by Mr Yiu to determine objectively whether he declined or neglected to take the LegCo Oath. 220.The objective evidence put forward in Mr Yiu’s affirmation and relied on by Ms Eu is:
221.Ms Eu submits that the above objective evidence sheds light on the objective circumstances before, during and after Mr Yiu’s oath taking, and his subjective intention before, during and after the oath taking. Given all the above, it makes absolutely no sense for him to intentionally refuse to take the oath. Further, says Ms Eu, objectively speaking, Mr Yiu read out the three core aspects of the LegCo Oath accurately and solemnly, and thus gave a pledge intending to be bound by those three aspects of the oath. Having regard to such objective evidence, Ms Eu submits that, objectively assessed, the Plaintiffs simply cannot show that Mr Yiu intended to flout the law and attract the serious consequence of disqualification. 222.Alternatively, Ms Eu points out that Mr Yiu has also provided in his affirmation the “innocent explanations” as to why he took the LegCo Oath in the way he did. These explanations are that:
223.Ms Eu argues that, given these explanations and Mr Yiu’s repeated statements in the affirmation that he never intended to decline or neglect to take the oath,[38] viewed objectively, there is simply no compelling evidence to show that he intentionally and deliberately flouted the requirements of the law, or he did not intend to be bound by the oath, or he refused to give the pledge. In the circumstances, at most Mr Yiu made an invalid and non-confirming oath and should be allowed to take it again. 224.With respect to Ms Eu, notwithstanding her forcible submissions, I am unable to accept them. 225.As I see it, the underlying plank of Ms Eu’s above submission is that in order to find that Mr Yiu had declined or neglected to take the LegCo Oath, the court must find, albeit objectively, that he had a specific intent to flout the legal requirements or that he intended not to be bound by the pledges in the oath. Hence, as Ms Eu further submits, given his innocent explanations, especially his mistaken understanding of the law, and the lack of any good reasons for him to want to risk losing his seat after winning it, there cannot be a finding based on compelling evidence that he did specifically intend to flout the law or not to commit to the pledges in the LegCo Oath, and thereby to attract the serious consequence of losing his hard won seat. 226.Ms Eu’s submissions would amount to the need to find that the oath taker, in taking the oath, intended to break the law relevant to oath taking and to lose to his or seat by doing so. However, this underlying contention is in my view incorrect. 227.As I have repeatedly explained above, given the objective test, it is not necessary as a matter of law to find a specific intention to break or not to comply with the specific legal requirements relevant to oath taking. It is sufficient to show that the oath taker intended to adopt a particular way, conduct or manner to take the LegCo Oath, and that particular way, conduct and manner of taking the oath objectively assessed do not comply with the relevant legal requirements. 228.Once understood the legal test in this way regarding the finding in law whether an oath taker has “declined” and “neglected” to take the LegCo Oath, for the reasons I have set out in paragraphs 204 ‑ 211 above, the evidence and innocent explanations put forward by Mr Yiu do not assist him. Quite to the contrary, as explained above, they support the clear conclusion that, objectively, Mr Yiu did decline or neglect to take the LegCo Oath whether at his first or second attempt on 12 October 2016. 229.In the premises and for the above reasons, I conclude that Mr Yiu failed to comply with the constitutional requirement under BL104 and declined or neglected to take the LegCo Oath when requested to do so on 12 October 2016. He has since been disqualified from assuming or entering on the Office. 230.The President thus erred in law in allowing Mr Yiu to retake his oath. His decision should be quashed. 231.Finally, since Mr Yiu has claimed to be entitled to act as a LegCo member since 19 October 2016, the court should grant a declaration and injunction under section 73 of the LCO. D. THE DEFENDANTS’ STAY APPLICATIONS 232.On the last day of the hearing, after Mr Mok had completed his reply submissions for the Plaintiffs, Mr Dykes (for Mr Law) made an oral application for a permanent stay of these proceedings.[39] In gist, Mr Dykes’ main reasons for making the application are these. In the absence of any explanations from the Plaintiffs as to why they brought these disqualification proceedings against only the Defendants but not some other LegCo members-elect (who took the LegCo Oath in similar manners and ways as the Defendants did), the present proceedings brought against Mr Law are an abuse of process, and the court should exercise its inherent jurisdiction and under Order 18, rule 19(1)(d) of the Rules of the High Court to stay permanently or dismiss the proceedings. 233.All the other Defendants through their respectively leading counsel then followed suit and made an oral application for a permanent stay or dismissal of the present proceedings for abuse. 234.Given the informal way that the stay applications were made, and that the Plaintiffs were not given a proper opportunity to deal with them, I gave directions for the parties to file written submissions respectively in support and in response to these applications. The parties have duly done so.[40] 235.Further, the court has also granted retrospective leave to the Plaintiffs to file the 2nd affirmation of Ms Wong Hwa Yih (a senior Assistant Law Officer) for this purpose. Ms Wong deposes that:
236.I will now turn to consider the merits of the stay applications. 237.The Defendants’ submissions in support of the stay applications are essentially these:
238.I am not persuaded that the commencement of the present proceedings amount to an abuse of process as contended by the Defendants. My reasons are as follows. 239.As submitted by Mr Yu SC for the Plaintiffs, the burden on proving an abuse is on the Defendants, which burden is a heavy one, and the power to grant a permanent stay is one only to be exercised in the most exceptional circumstances: Williams v Spautz (1992) 174 CLR 509 at 529; Fox v Attorney-General [2002] NZLR 62 at 71. Hence, it has been observed by Sumption JSC in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 at paragraph 149 that such cases are extremely rare. 240.Moreover, in considering an application for permanent stay based on using the proceedings for an improper purpose, the law draws a clear and important distinction based on the use of the process for obtaining judgment against the misuse of the process for a predominant purpose other than for which the proceedings are designed. This important distinction has been explained and illustrated in the following authorities. 241.Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz, supra, at 526 gave the example as follows:
242.Similarly, Lord Wilson JSC and Sumption JSC respectively explained this in Crawford Adjusters (Cayman) Ltd, supra, at paragraphs 63 and 149:
243.Recently in Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2016) 243 FCR 474, Foster J at paragraphs 117 - 119 referred to Williams v Spautz for the principle that it is the use of the proceedings which must be examined and which may constitute an abuse of process. The learned judge, after considering a line of authorities, then concluded at paragraphs 147(d) and (f) that:
244.Bearing in mind the above relevant principles and fundamental distinction, I accept the Plaintiffs’ submissions that the Defendants have not discharged the burden to show that it is an abuse of process for the Plaintiffs to bring the present disqualification proceedings against the Defendants. 245.As emphasised by Mr Yu, it is for the Defendants to show that there had been an abuse as contended, and prima facie not for the Plaintiffs to explain why the commencement of the proceedings was not an abuse. 246.In any event, it is incorrect for the Defendants to say that the Plaintiffs have not explained why the proceedings were brought against the Defendants. As set out in Mr Wong’s 2nd affirmation, the SJ, the CE and the Government have issued statements as early as 1, 2 and 6 December 2016 repeatedly explaining and emphasizing that the only standard to be applied in taking action was based on legal advice including advice from independent counsel, and there will not be and has not been any political consideration. 247.As the Plaintiffs have submitted, a case to disqualify a LegCo member has to be clear and the court looks at the totality of evidence in each case. It is the Plaintiffs’ case that in their assessments, these four cases are clear because they involve a number of features which, taken cumulatively in each case, clearly establish a case for disqualification. They also contain features over and above and are different from other cases such as (as pointed out by Mr Yu): Ms Lau’s Opening Statement and slow reading, Mr Law’s Opening Statement demonstrating his insincerity and his intentional intonation, Mr Yiu’s repeated insertion of the Extra Words as part of his oath, Mr Leung’s theatrical performance showing his insincerity and his use of props and theatrical conduct as and when he was taking the oath forming part and parcel of the same. The Plaintiffs therefore submit they formed the view on legal advice that these four cases best satisfied the clear ones, and that is entirely reasonable for them to act on legal advice as to the merits of each case and to proceed only on cases which are regarded as clear. 248.Mr Yu further emphasizes that the pursuit of clear cases by the CE or the SJ meets or accords with the Defendants’ submissions on the cogency of evidence required. The CE or the SJ recognize the need for a high threshold and adopt a prudent approach. This is, says Mr Yu, the antithesis of an abuse. 249.In this respect, it must be noted that the court must consider each case on its own facts and against its own context. As made clear in the CA Judgment (at paragraph 39): “In the final analysis, what is at stake is the compliance of a constitutional requirement of great significance. In any given set of facts, this can admit of one correct answer only.” (emphasis added). The Defendants never contend that the court must necessarily reach the same “correct answer” in each of the four cases here. The case against each of them differs, and they retain different legal teams and advance different defences. It is not the Defendants’ case that either the court should rule against all four Defendants or else it should rule against none of them. 250.The court also notes that it is not the Defendants’ case that, if the CE or the SJ were to pursue the other LegCo members, the court must necessarily reach the same “correct answer” and either rule against all these LegCo members (including the Defendants) or else rule against none of them. 251.In the premises, when it is looked at in the above way, I am of the view that the Defendants cannot fault the Plaintiffs’ prima facie explanation that the decisions to bring the present proceedings against them but not the Other Members‑Elect were based on legal advice on merits. 252.But more importantly, the court is not persuaded by the Defendants’ contentions as summarized above to say why the present proceedings brought against them are an abuse of process. This is what I now turn to look at. 253.With respect, the Defendants’ principal basis for saying that the proceedings were brought for political purposes is at best speculative and in any event does not hold out:
254.Further, in my view, the above identified falsity of the Defendants’ theories and submissions as to why they say the proceedings against them only are brought with political motivation or improper purpose rather reinforces the Plaintiffs’ explanation that these proceedings were taken out based on legal advice on merits. 255.As summarized at paragraph 237(5) above, the Defendants seek also to rely on the contention that the Plaintiffs had purportedly expanded the case against the Defendants at the hearing to support the submissions that the Plaintiffs had abused the process by targeting only the Defendants but not the Other Members‑Elect (since the “new case” is allegedly equally applicable to the circumstances of the Other Members‑Elect). Even if (which I do not accept) the Plaintiffs did expand their case against the Defendants by contending that an oath taker cannot add any worded messages to the LegCo Oath itself, given that it is the Defendants’ contention that the Plaintiffs only thought of and relied on the “new case” by the time these proceedings have come to the hearing in March 2017, by definition, the Plaintiffs simply could not have recognised that they could pursue against the Other Members-Elect based on the “new case” at the time the commencement of the present proceedings. By March 2017, as pointed out by Mr Dykes in his skeleton at paragraph 16, it would already be too late for the Plaintiffs to bring any disqualification proceedings against the Other Members-Elect on the new ground. This “new case” submission simply does not support an abuse of process as contended by the Defendants. 256.Finally, there is also no evidence to suggest that the Plaintiffs did not intend to bring the proceedings to their conclusion and seek the relief sought. To the contrary, it is indeed clear that the Plaintiffs have proceeded against the Defendants to trial. In the premises, bearing in mind the important distinction in law as emphasised above, purely for the sake of argument, even if (which is not established by the Defendants for the above reasons) the Plaintiffs did so with the object of seeking disqualification thereby achieving some extraneous purpose, this cannot constitute an abuse of process when that alleged purpose is to bring about a result for which the law provides in the event that the proceedings end in favour of the Plaintiffs. 257.In the premises, I am not satisfied that the Defendants have discharged the burden to show a clear case that the commencement of these proceedings against the Defendants is an abuse of process by the Plaintiffs to achieve an ulterior or political motive. 258.I would dismiss the Defendants’ respective applications for a permanent stay or dismissal of the present proceedings. E. CONCLUSION AND DISPOSITIONS 259.For all the above reasons, the Plaintiffs succeed in each of these proceedings respectively against the Defendants. As against each of the Defendants, I will make the following orders. 260.Against Mr Law:
261.Against Mr Leung:
262.Against Ms Lau:
263.Against Mr Yiu:
264.There are no reasons why costs should not follow the event. I therefore make an order nisi that costs of each of the judicial reviews be to the Plaintiffs and costs of each of the origination summonses be to the SJ, to be taxed if not agreed with certificate for three counsel. Mr Leung’s own costs be taxed in accordance with legal aid regulations. 265.Lastly, I thank counsel’s assistance in these matters.
Mr Benjamin Yu, SC (only in opposing the Defendants’ stay application), Mr Johnny Mok, SC, Mr Jimmy Ma & Mr Jenkin Suen, instructed by Department of Justice, for the plaintiffs in HCAL 223-226/2016 and the plaintiffs in HCMP 3378, 3379, 3381, 3382/2016 Mr Philip Dykes, SC, & Mr Jeffrey Tam, instructed by Ho Tse Wai & Partners, for the interested party in HCAL 223/2016 and the defendant in HCMP 3379/2016 Ms Audrey Eu, SC, & Ms Christine Yu, instructed by Khoo & Co, for the interested party in HCAL 226/2016 and the defendant in HCMP 3378/2016 Mr Martin Lee, SC, Mr Carter Chim & Ms Senia Ng, instructed by JCC Cheung & Co, assigned by Director of Legal Aid for the interested party in HCAL 224/2016 and the defendant in HCMP 3382/2016 Mr Johannes Chan, SC (Hon), Mr Hectar Pun, SC, & Mr Anson Wong Yu-yat, instructed by Bond Ng Solicitors, for the interested party in HCAL 225/2016 and the defendant in HCMP 3381/2016 Lo & Lo for the respondent in HCAL 223 - 226/2016, attendance excused [1] The constitution for the Hong Kong Special Administrative Region. [2] Leading counsel for the other Defendants have rightly recognized this position and sought only to reserve their rights to advance similar arguments concerning the effect of the Interpretation on appeal. [3] See The New Shorter Oxford English Dictionary. [4] Mr Lee relies on the accepted practices that can be found in the LegCo’s Rules of Procedure, various past rulings by the President and the “Committee on Rules of Procedure of the LegCo for the Hong Kong Special Administrative Region – Progress Report for the period October 2013 to June 2014” dated 9 July 2014. Some of these have also been referred to and summarized in “A companion to the history, rules and practices of the Legislative Council of the Hong Kong Special Administrative Region” printed by the LegCo Commission and laid on the table of the LegCo on 18 June 2014. See also Leung Kwok Hung’s 2nd affirmation, paragraphs 62 - 79. [5] LC Paper No CB(3) 2/16-17 [6] LC Paper No CB(3) 17/16-17 [7] LC Paper No CB(3) 18/16-17 [8] English translation: Affirmation, English being “affirmation”, has the original meaning in Latin of rendering it more assertive or strengthened. Taking the oath is a solemn ceremony, requiring us to make a pledge to Hong Kong people that we will keep our words and actions as one, to staunchly protect the rights of Hong Kong people. However, this sacred ceremony has today been reduced to a political tool used by those in power to forcefully subject representatives of people’s will to the system and the totalitarian authority. You can chain me, you can torture me, you can even destroy this body, but you will never imprison my mind. Today I must complete the necessary procedure, but this does not mean I am subjugating myself under the totalitarian authority. Hong Kong citizens will forever be the ones whom we serve and unite, I will absolutely not bear allegiance to a political administration which brutally killed its people, I will maintain my principles, and protect Hong Kong people with my conscience. Hope is in the people, change is in resistance. [9] English translation: Civil Disobedience. [10] English translation: End One-Party Dictatorship. [11] English translation: National People’s Congress (“NPC”) 831 Decision. [12] English translation: Umbrella Movement! Indomitable! Civil Disobedience! Without Fear! Self-Autonomy and Self-Determination for People! No Approval from the Communist Party of China is Required! I Want Dual Universal Suffrage! Leung Chun Ying Step Down! [13] English translation: Okay? Use Chinese or English or Shanghainese? I chose Chinese, excuse me. Listen everybody, it is very solemn. Two years ago, people were out there, fighting for dual universal suffrage, and were arrested and beaten up. [14] English translation: I, Leung Kwok Hung, solemnly, sincerely, and truly declare and affirm that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China, I 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 and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity. [15] English translation: Revoke NPC 831 Decision! I Want Dual Universal Suffrage! [16] English translation: NPC 831 Decision. [17] English translation: Revoke NPC 831 Decision! Revoke NPC 831 Decision! I Want Dual Universal Suffrage! Self-Autonomy and Self-Determination for People! No Approval from the Communist Party of China is Required! [18] Mr Leung deposed at paragraph 87 of his 2nd affirmation that “I have always understood that the LegCo oath has to be taken seriously, solemnly and sincerely…” [19] English translation: I, Lau Siu Lai, hereby make this pledge, that I, having entered the Council from the streets, will certainly carry forth the spirit of self-determination of destiny in the Umbrella Movement, walk with the Hong Kong people, connect the inside and outside of the Council, to fight against totalitarianism. We must live in truth, break the indifference and cynicism, look for hope in the darkness and blaze a trail to democratic self-determination together. Tear down the high wall [for] self-determination and self-reliance. [20] English translation: Fight for universal retirement protection, implement policy for bazaar and staunchly defend the dignity of Hong Kong people in their living. [21] English translation: What I read, was ninety-odd unrelated and independent word sentences, entirely devoid of coherence and meaning. All meaning was merely a guess from the subjective judgment of the audience by making up the clauses themselves. [22] English translation: 【Lau Siu Lai: Slow reading was to manifest the falsehood of the oath】. [23] English translation: 【Lau Siu Lai: Slow reading was to manifest the falsehood of the oath】. [24] English translation: With regard to the oath-taking ceremony yesterday, I would like to tell a story. [25] English translation: A story told by Vaclav Havel. In the Czech Republic in the seventies, a vegetable stall owner put up a banner in the stall: “Unite the workers in the whole world!” Anyone would notice that the vegetable stall owner did not truly believe in that slogan; the reason why he had to display the banner was only because he was afraid of inviting trouble, and so he acted perfunctorily, to maintain “social harmony”. This slogan was clearly hinted by the one in authority; the most artful point was that the vegetable stall owner need not expressly state his fear about the authorities; he could even hide it with a lie: “‘Unite the workers in the whole world’, what’s the problem with that?” [26] English translation: A totalitarian society is maintained by lies. People live in lies and hypocrisy. They may not agree to the lies, but as long as they pretend to agree, or at least remain silent, they can live in the system. Those who choose to obey may even take the initiative to meet the requirements of the system to obtain benefits, in order to satisfy their own desire to power. [27] English translation: In the Chamber yesterday, all members of the LegCo took their oaths. Some patriots in suits, representing the privileged class, read the oaths aloud and openly, and completed the ritual script, as if they were really to “solemnly and sincerely” promise to serve the people. As a result, they became honorable members of the Council, to act as hatchet men of the bigwigs to suppress Hong Kong people, and can even hide it with a he: “To serve the people as a Legislative Councillor, what’s the problem with that?” [28] English translation: The core of the lie is the whole political system of the SAR Government, which has legitimacy on the face of it, but actually there is none! The whole Basic Law, the whole political system together with the Chief Executive, have not been authorized by the public will of the Hong Kong people, and are therefore fundamentally illegal! [29] English translation: A fair and just Council was supposed to be the manifestation of democracy, freedom and people's will. But in Hong Kong, we only have birdcage-style semi-democracy; the various manipulations and disqualification of candidates in this election, trampled the only procedural fairness left. At the election of the President of the LegCo, Andrew Leung’s and the Secretariat’s handling of Leung’s nationality issue was like child’s play, as there were, surprisingly, still a lot of doubtful points on the day of polling. At the end Andrew Leung was “elected” in chaos, but it was difficult to convince the public. [30] English translation: Yesterday, I read out the official oath word-by-word. The oath became ninety-odd sentences devoid of any coherence, without any combination, connection and meaning, so that the audiences could not hear any sentence structure and tone. In this way, all meaning was merely a guess resulting from the subjective judgment of the audiences by making up the clauses themselves. This course of action was to manifest the hypocrisy of the ritual. The pro‑establishment camp including Andrew Leung, raved that any members of the opposition camp who tried to obstruct Andrew Leung from being elected as the President smoothly were “creating troubles” and “causing damage to the Council”, but I want to convey a message instead: fluent and sonorous oath is hypocritical, a harmonious Council is also hypocritical. [31] English translation: Vaclav Havel said, to fight totalitarianism, the most fundamental way is to smash the lies and hypocrisy that maintain the totalitarianism. Only when everyone insist on not declaring their stance in accordance with the conventions, and say their own true thoughts, would it be possible for the high wall to be broken. Yesterday was just a beginning, from now on I will walk with the Hong Kong people, inside and outside of the Council, to strive to fight against the hypocrisy of various institutional requirements, to accomplish what Vaclav Havel said – living in truth, and to blaze a trail to democratic self-determination together. [32] English translation: Lastly, the speech I made before reading out the official oath was a more sincere version: I, Lau Siu Lai, solemnly and sincerely, pledge to the Hong Kong people that: I, having entered the Council from the streets, will certainly carry forth the spirit of self-determination of destiny in the Umbrella Movement, walk with the Hong Kong people, connect the inside and outside of the Council, to fight against totalitarianism. We must live in truth, break the indifference and cynicism, look for hope in the darkness, and blaze a trail to democratic self-determination together. Tear down the high wall [for] self-determination and self-reliance! [33] English translation: Ifthere is a 6-second pause in between each word, how can you view them as one sentence? They could be ninety-odd pieces of articles! [34] The underlined words being words added to the content of the prescribed oath under section 16(d) of and Schedule 2to the ODO. The words, translated into English means, “I will protect the justice system in Hong Kong, fight for true democracy, and serve Hong Kong for its sustainable development”. [35] The underlined words being words added to the content ofthe prescribed oath, carrying the same translated meaning as that in Footnote 34 above. [36] Translated as: I will protect the justice system in Hong Kong, fight for true democracy, and serve Hong Kong for its sustainable development. [37] See paragraphs 20, 24(3) and 26(2). [38] See paragraphs 42 - 44, 53(6) and 56 of Mr Yiu’s affirmation. [39] Mr Dykes did in the course of the hearing indicate that he might consider making such an application after hearing Mr Mok’s reply submissions to see if Mr Mok would provide any explanations as to why the Plaintiffs had commenced the disqualification proceedings against only the Defendants. [40] It should be noted that despite the clear purpose that these supplemental submissions are only to deal with the stay applications, Mr Lee has at paragraphs 6 - 13 of the written submissions dated 17 March 2017 and paragraphs 5 - 7 of the reply submissions dated 12 April 2017 made substantial further and new submissions based on an argument of legitimate expectation to oppose the substantive applications against Mr Leung under the judicial review and the Originating Summons (in substance that the past practices of the President and the Clerk in accepting the way and manner in which Mr Leung and other LegCo members-elect had taken the LegCo Oath in the past have created a legitimate expectation on the part of Mr Leung that his present oath taking would not be treated as unlawful. In the premises, he should be given prior notice for any change in the benchmark for measuring the degree of solemnity required for taking the LegCo Oath). This is clearly in breach of the directions and should not be condoned. Mr Lee should not be allowed to have a second bite of the cherry in his submissions. The court therefore would disregard this part of the submissions. In any event, the court would accept Mr Yu SC’s submissions set out in the appendix to his written submissions dated 31 March 2017 to reject the argument based on legitimate expectation on principal ground that an expectation is not legitimate or cannot be substantively enforced if the substantive enforcement would be contrary to law. [41] See paragraph 3 of Mr Leung’s written submissions listing a total of 18 such Other Members‑Elect. Mr Law has identified seven (which overlap with the 18 identified by Mr Leung) at paragraphs 25 - 26 of his affirmation. Ms Lau relies on the same as identified by Mr Law (see paragraph 13 of Ms Lau’s written submissions). Mr Yiu has identified five such Other Members-Elect (which also overlap with the 18 identified by Mr Leung) at paragraph 35 of his affirmation. [42] See paragraph 17 of Mr Law’s written submissions dated 17 March 2017, and paragraph 22 of his reply submissions dated 12 April 2017. [43] The court would also grant retrospective leave for the filing of Mr Law’s 3rd affirmation dated 12 April 2017. [44] See paragraphs 13 - 14 of Ms Lau’s written submissions dated 17 March 2017, and paragraphs 5 - 13 of her written submissions dated 12 April 2017. [45] See paragraph 8 of Mr Yiu’s written submissions dated 17 March 2017, and paragraphs 12 and 13 of the reply submissions dated 12 April 2017. [46] See paragraphs 2 and 5 of Mr Leung’s written submissions dated 17 March 2017 and paragraph 3 of the reply submissions dated 12 April 2017. [47] See paragraph 1(a) of Mr Leung’s written submissions. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Further hearings and rulings under HCAL 223/2016