郭卓堅 v. 林鄭月娥特首連同行政會議成員

HCAL 453, 455, 458
& 460/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 453 OF 2017

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 455 OF 2017

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 458 OF 2017

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 460 OF 2017

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Before:  Hon Chow J in Court

Date of Hearing: 22 September 2017

Date of Decision:  27 September 2017

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D E C I S I O N

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INTRODUCTION

1.On 25 July 2017, the Chief Executive in Council made a decision endorsing the implementation of a proposed arrangement regarding Hong Kong and Mainland customs, immigration and quarantine procedures at the West Kowloon Station of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (the “Proposed Co-location Arrangement”).

2.Arising out of that decision, 4 applications for leave to apply for judicial were made, namely, HCAL 453, 455, 458 and 460/2017.

3.On 21 September 2017, each of the applicants in HCAL 458/2017 and HCAL 460/2017 separately informed the court that he had decided not to pursue his application for leave to apply for judicial review.  The court made orders granting them leave to withdraw their respective applications, with the question of costs to be dealt with at the conclusion of the hearing on 22 September 2017.  Accordingly, it is no longer necessary to consider those two applications save in relation to the question of costs.

4.In respect of the two remaining applications, the principal issue which arises for determination is whether the applicants’ respective challenges, by way of judicial review, to the constitutionality or legality of the Proposed Co-location Arrangement is premature.  For reasons which I shall explain below, I am of the view the such challenge is clearly premature at this stage.  Accordingly, the two remaining applications for leave to apply for judicial review are refused.

BACKGROUND FACTS

(i)  The Proposed Co-location Arrangement

5.The following summary of the Proposed Co-location Arrangement is taken largely from the Legco Paper, LC Paper No CB(2)1966/16-17(01), entitled “Customs, Immigration and Quarantine Arrangements of the Hong Kong Section of the Guangzhou‑Shenzhen-Hong Kong Express Rail Link” dated July 2017 (the “Legco Paper”).

6.In 2001, the Government of the Hong Kong Special Administrative Region (the “SAR Government”) initiated discussions with the Mainland government on the idea of establishing a high-speed rail link connecting Guangzhou, Shenzhen and Hong Kong.  As subsequently developed, the Guangzhou-Shenzhen-Hong Kong Express Rail Link (the “XRL”) will be about 140 km in length.  The Hong Kong Section of the XRL, of about 26 km in length, will connect Hong Kong to the national high-speed rail network, including the Beijing-Guangzhou Passenger Line running through Guangzhou, Changsha, Wuhan, Zhengzhou and Beijing, and the Hangzhou-Fuzhou-Shenzhen Passenger Line running through coastal cities such as Shantou, Xiamen, Fuzhou and Hangzhou.

7.The Hong Kong Section of the XRL will start from the West Kowloon Station, entering Mainland via Huanggang, and run through Futian Station, Shenzhen North Station and Humen Station before reaching Guangzhou South Station.  Its construction works were about 95% complete as at the end of June this year. Train testing and trial runs, as well as preparation for the operation stage, are currently underway.  The SAR Government’s target is to commission services in the third quarter of 2018.

8.Since the planning stage of the Hong Kong Section of the XRL, the SAR Government has been studying “co-location arrangement” as the preferred way forward for Hong Kong and Mainland customs, immigration and quarantine procedures (“clearance procedures”).  In this context, co‑location arrangement means conducting clearance procedures of two different jurisdictions successively in one place. This is to be contrasted with a traditional separate-location arrangement, under which clearance procedures are conducted at the places of departure and arrival in two different jurisdictions respectively. Under a co-location arrangement, passengers can complete clearance procedures of both Hong Kong and the Mainland at the West Kowloon Station in one go. Passengers departing from Hong Kong can go to all cities on the national high-speed rail network without having to undergo clearance procedures again on the Mainland. Passengers coming to Hong Kong can board trains at any station of their choice on the national high-speed rail network, and go through Mainland departure clearance and Hong Kong arrival clearance at the West Kowloon Station. They will not be constrained by whether a particular Mainland city has clearance facilities.

9.The SAR Government secured funding in January 2010 for the commencement of the construction works for the Hong Kong Section of the XRL.  In-depth discussions and studies on the clearance procedures of the XRL with the relevant Mainland authorities commenced in the same year.  After detailed study, the SAR Government and the relevant Mainland authorities recommend the adoption of a “Three-step Process” in implementing a co-location arrangement at the West Kowloon Station of the XRL. The three steps may be summarised as follows –

(1) Step One: the Mainland and the HKSAR are to reach a “Co‑operation Arrangement” in relation to the implementation of the co-location arrangement;

(2) Step Two: the Standing Committee of the National People’s Congress of the PRC (the “NPCSC”) approves and endorses the Co‑operation Arrangement by making a decision; and

(3) Step Three: both sides implement the arrangement pursuant to their respective procedures. For this purpose, local legislation will be necessary in Hong Kong.

10.Step One: the first of the “Three-step Process” requires the HKSAR and the Mainland to reach a Co-operation Arrangement in implementing the co-location arrangement at the West Kowloon Station. The contents of the Co-operation Arrangement include the establishment of port areas, the area and jurisdiction of the Mainland Port Area, immigration control on travellers, liaison and coordination mechanism and emergency handling mechanism, consultation on and resolution of disputes, as well as the arrangement for amending the Co-operation Arrangement and its effective date.

11.In relation to the establishment of port areas, it is envisaged that the HKSAR and the Mainland will agree to set up a control point in the West Kowloon Station under the framework of the Co-operation Arrangement. Both sides will exercise customs, immigration and quarantine control such as immigration checks, customs control and quarantine measures in accordance with their respective laws on travellers between the Mainland and the HKSAR, as well as their belongings and luggage.

12.The West Kowloon Station control point will be established with a Hong Kong Port Area and a Mainland Port Area. The Hong Kong Port Area will be established by the HKSAR and be subject to its jurisdiction in accordance with HKSAR laws, whereas the Mainland Port Area will be established by the Mainland and be subject to its jurisdiction in accordance with the Co-operation Arrangement and relevant Mainland laws.

13.The Mainland Port Area will comprise the areas from the point where passengers departing Hong Kong have gone through the departure clearance on the Hong Kong side and entered into the area for arrival clearance on the Mainland side, as well as the areas from the point where arriving passengers set foot on the West Kowloon Station after alighting from a southbound train to the point where they have completed the departure clearance on the Mainland side.  The construction floor area of the Mainland Port Area is estimated to be around 105,000 m², which is about one-fourth of the total construction floor area of the West Kowloon Station.

14.In addition, train compartments in operation on the Hong Kong Section of the XRL (whether in motion, stationary or during embarkation or disembarkation) will be regarded as part of the Mainland Port Area.

15.The aspect of the Proposed Co-location Arrangement which goes to the heart of the applicants’ complaint in these applications relates to the proposal that the Mainland authorities, including the Mainland courts, will exercise jurisdiction over the Mainland Port Area in accordance with the Co-operation Arrangement and Mainland laws, except for those matters specified in the Co-operation Arrangement over which the HKSAR shall exercise jurisdiction.  Based on the current understanding, the HKSAR shall exercise jurisdiction over 6 matters as listed in paragraph 44 of the Legco Paper in accordance with HKSAR laws (the details of which it is not necessary to set out in this decision).

16.For the purpose of exercising jurisdiction over the Mainland Port Area by the Mainland authorities, with respect to the application of laws and delineation of jurisdiction, the Mainland Port Area will be regarded as outside the territorial boundary of the HKSAR.

17.Passengers bound for Hong Kong are regarded as being present in the Mainland before they leave the Mainland Port Area and will be subject to departure clearance by Mainland personnel.  Similarly, passengers bound for the Mainland will, upon entering the Mainland Port Area, be regarded as being in the Mainland, and will have to undergo arrival clearance by Mainland personnel.

18.Step Two: the SAR Government will continue to work with the relevant Mainland authorities to take forward the subsequent tasks in implementing the co-location arrangement for the XRL, including jointly seeking a decision from the NPCSC approving and endorsing the Co‑operation Arrangement after public discussions in Hong Kong and discussions at the Legislative Council. Apart from approving the proposal set out in the Co-operation Arrangement, it is envisaged that the NPCSC will approve relevant Mainland authorities to implement the co-location arrangement in Hong Kong, as well as authorise the HKSAR to implement matters in relation to the co-location arrangement in accordance with Article 20 of the Basic Law (which provides that the HKSAR “may enjoy other powers granted to it by the National People’s Congress, the Standing Committee of the National People’s Congress or the Central People’s Government”).

19.Step Three: after the NPCSC has made a decision to approve the Co-operation Arrangement, the HKSAR will introduce a legislative proposal to the Legislative Council and will aim to complete the domestic legislative exercise in the legislative session of 2017-18, with a view to providing the basis for the commissioning of the XRL in the third quarter of 2018.

(ii)  The CEIC Decision

20.On 25 July 2017, the Chief Executive in Council made a decision (the “CEIC Decision”) endorsing the implementation of the Proposed Co-location Arrangement.  On the same day, the SAR Government submitted the Legco Paper to inform the Legislative Council members as well as the general public of the Proposed Co-location Arrangement.

(iii)  Public statements made by officials of the SAR Government regarding the implementation of the Proposed Co-location Arrangement

21.On 4 August 2017, it was reported in The Standard that at a special Legislative Council meeting held on 3 August 2017, Government Officials including the Secretary for Justice and the Secretary for Transport and Housing rejected calls for a public consultation on the Proposed Co-location Arrangement, and the Secretary for Justice said that the SAR Government would found ways to listen to and gather the public’s view on it.

22.On 5 August 2017, it was reported on the website of the Information Services Department of the SAR Government that the Secretary for Transport and Housing said that the SAR Government had come to “an initial agreement with the Mainland counterpart” in respect of the Proposed Co-location Arrangement.

23.On 6 August 2017, it was reported on the website of the Information Services Department of the SAR Government that the Chief Executive said to the media that “there is no way to overhaul the co-location arrangement”, and that “if Hong Kong people have concerns about the plan, she is willing to convey their views to the Central Government and make necessary arrangements, provided there is no contravention of the co-location plan.”

24.On 6 August 2017, it was further reported on the website of the Information Services Department of the SAR Government that the Acting Chief Executive said that “co-location is the only feasible option for the XRL’s passenger clearance arrangement” and “the Government will work on implementing the arrangement and explaining it to the community”, and he “called on the public to discuss the plan in a pragmatic and objective manner with an aim to fine-tune it, rather than debating whether or not co-location should be implemented.”

(iv)  The current applications

25.On 26 July 2017, Mr Kwok (the applicant in HCAL 453/2017) and Messrs Lui and Li (the applicants in HCAL 455/2017) separately applied for leave to apply for judicial review of the CEIC Decision.  They are currently represented by the same leading counsel (Mr Martin Lee SC) and the same firm of solicitors (Messrs Ho Tse Wai & Partners).  On 24 August 2017, they made applications to amend their respective Form 86s, adopting a common draft Amended Form 86. As stated in paragraph 23 of the Skeleton Arguments for the Applicants, the following 3 grounds of judicial review are proposed to be raised:-

(1) the CEIC Decision is unconstitutional in that it is ultra vires and in contravention of inter alia the “Mandating Provisions” in the Basic Law (ie, BL 8, 16, 17, 18, 19, 22, 48, 59, 66, 80, 82, 84 and 87);

(2) the CEIC Decision is unconstitutional in that it is ultra vires and in contravention of BL 18; and

(3) the CEIC Decision is unconstitutional in implementing the Proposed Co-location Arrangement in the absence of additional lawful powers, and is ultra vires and in contravention of the Basic Law.

26.The applications for leave to apply for judicial review are opposed by the putative respondents, on the ground that “they are entirely premature and there are no exceptional circumstances, as the law requires, for nevertheless entertaining the proposed challenges.  Indeed there are strong reasons why such a course is unsound and undesirable” (see paragraph 3 of the Skeleton Submissions for the Putative Respondents).

APPLICABLE LEGAL PRINCIPLES

27.When the court rejects an application for leave to apply for judicial review on the ground of prematurity, this may be due to a number of different, sometimes overlapping, reasons or considerations, including the following.

28.First, the application may fail because it concerns an “intermediate” or “procedural” decision which does not give rise to any substantive consequence or is not a decision of a “decisive nature”.  The rationale was explained by the Court of Final Appeal in Financial Secretary v Wong (2003) 6 HKCFAR 476.

(1) At paragraph 13 of the judgment of the Court of Final Appeal, Bokhary PJ stated the following -

“The courts’ judicial review jurisdiction is of a supervisory nature. This extremely important jurisdiction is not meant for the purpose of micro-managing the activities of subordinate tribunals or administrative decision-makers. It should hardly ever be exercised to review decisions that go only to procedure rather than to the end result. I say ‘hardly ever’ rather than ‘never’ because there can be wholly exceptional cases calling for special treatment… If the Tribunal had been properly seised of an application for costs, the High Court's proper course would have been to leave the Tribunal to proceed to a decision on the end result and then, if the circumstances eventually so warranted, judicially review that end result. Quite apart from anything else, it often happens that the effect of questionable decisions made at an intermediate stage of a process are dissipated or overtaken by subsequent developments and turn out to have little or no impact by the time the final stage is reached.”

(2) At paragraphs 93 to 95 of the judgment of the Court of Final Appeal, Litton PJ stated the following –

“93 Turning more specifically to the scope of judicial review, it is, broadly speaking, the means by which judicial control of administrative action is exercised. It is not every decision by a decision maker which is susceptible to review: Were it otherwise the functioning of the executive arm of government and of statutory bodies and tribunals would be ensnared in multiple applications in the courts. As put by the authors of Administrative Law: Wade and Forsyth (8^th ed.) p.600-601:

‘As the law has developed, certiorari and prohibition have become general remedies which may be granted in respect of any decisive exercise of discretion by an authority having public functions ...’

94 The emphasis here is on the decisive nature of the exercise of power…

95 As Mason CJ said in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 337, an essential quality of a reviewable decision is that it is a substantive determination: Thus

‘the refusal by a decision-maker of an adjournment at an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality.’”

29.For this reason, offers made in the course of on-going negotiations between a land owner and the Director of Lands concerning the modification of certain conditions of grant which did not contain any substantive determination touching on, or affecting, the rights or interests of the land owner did not constitute reviewable decisions (see Rank Profit Industries Ltd v Director of Lands [2007] 2 HKC 171 at paragraphs 86, 94 and 95 per Hartmann J, as he then was).  Similarly, an alleged failure to conduct a lawful consultation process by the Communications Authority prior to making a recommendation to the Chief Executive in Council to approve, in principle, the grant of domestic free TV licences was a complaint about interlocutory or preparatory procedures or an intermediate step which did not constitute a substantive final decision and therefore judicial review did not lie against such failure (see Television Broadcasts Ltd v Communications Authority [2013] 5 HKC 593, at paragraphs 20-27 per Au J; also R (on the application of the London Borough of Hillingdon & Ors) v Secretary of State for Transport [2010] EWHC 626 (Admin), at paragraph 69 per Carnwath LJ, as he then was).

30.Second, the application may fail because, at the time when the application is made, the relevant legal or factual events to which the application relates have not yet occurred (see Yalland v Secretary of State for Exiting the European Union [2017] EWHC 630 (Admin), at paragraphs 23 and 48 per Lloyd Jones LJ).  That case concerned an application for permission to apply for judicial review of a decision or proposed decision of the UK Government to leave the European Economic Area without prior parliamentary authorisation and without observing the requirements governing the giving of notice contained in Article 127 of the EEA Agreement.  At the time of the application, there was, as yet, no final decision by the UK Government as to the mechanism by which it considered that the EEA Agreement would cease to apply within the UK.  The leave application was rejected by the English Divisional Court.  In his judgment, Lloyd Jones LJ stated as follows:

“23 As a general rule, the courts are concerned in judicial review with adjudicating on issues of law that have already arisen for decision and where the facts are established. The courts will not generally consider cases which are brought prematurely because, at the time the claim is made, the relevant legal or factual events to which the claim relates have not yet occurred.

24 The courts may have jurisdiction to grant what is sometimes referred to as advisory declarations. That is declarations on points of law of general importance where there are important reasons in the public interest for doing so. Even here, the courts proceed with caution.

25 It will rarely be appropriate to consider such issues when they may depend in part on factual matters or future events since until those factual matters are established or the events occur, the courts will not be in a position to know with sufficient certainty what issues do arise in a particular case. Similarly, when matters may depend upon or be affected by future legislation, it would generally not be appropriate to make rulings on questions of law until the precise terms of any legislation are known.

27 Furthermore, any legal ruling may well be influenced by future decisions by the United Kingdom Government, the terms of future legislation enacted by the United Kingdom Parliament and possibly the outcome of negotiation at the international level between the United Kingdom and the European Union and the States party to the EEA Agreement.

48 In our judgment, the present claims are premature. The relevant legal and factual situations against which the various claims made will need to be assessed have not yet occurred. There is, as yet, no final decision by the Government as to the mechanism by which it considers that the EEA Agreement would cease to apply within the United Kingdom.

49 A Bill is currently before Parliament which, if enacted, will authorise the giving of notification of withdrawal under Article 50 TEU. However, the precise terms of the legislation as finally enacted cannot yet be known. There is as yet no legislation dealing with the repeal of the 1972 Act, including the provisions giving effect within domestic law in the United Kingdom to the rights derived from the EEA Agreement. It is not known whether any legislation will also amend the terms of the 1993 Act.

50 In such circumstances, the court cannot at present identify with precision, first, what, if any, justifiable issues will arise for adjudication by the courts and, secondly, the full factual and legal context in which any such issues will fall to be assessed. The precise terms of any such legislation are likely to have at least a significant bearing on the determination of any such issues.”

31.Third, the application may fail because it is generally no part of a court’s function to restrain the legislature from making unconstitutional laws, as distinct from declaring such laws invalid after enactment.  The appropriate time for the court to consider the legality of a legislation is normally after its enactment and not while it is still undergoing legislative process.  In the United Kingdom, this conclusion flows from two basic constitutional principles: (i) the supremacy of Parliament such that the role of the courts is confined to interpreting and applying what Parliament has enacted, and (ii) the English courts’ recognition that Parliament has exclusive control over the conduct of its own affairs with the consequence that the courts will generally not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions (see The Bahamas Methodist Church v Symonette [2005] 5 LRC 196 at 207f-208d).  In the United Kingdom, it has been recognised that the application of the first principle there must take into account constitutional developments such as the European Communities Act 1972.  In Hong Kong, its application has to be modified in view of the provisions of the Basic Law, being the “mini-constitution” of the HKSAR.  Similarly, the second principle, sometimes referred to as the “non-intervention principle”, is also subject to constitutional requirements in its application in Hong Kong (see Leung Kwok Hung v President of the Legislative Council (No.2) (2014) 17 HKCFAR 689, at paragraphs 28, 29, 32 and 43; Chief Executive of the HKSAR v The President of the Legislative Council, FAMV 7, 8, 9 and 10/2017, 1 September 2017, at paragraphs 21 to 24).  Nevertheless, it remains the position in Hong Kong that the court should, so far as possible, avoid interfering in the legislative process or entertaining a pre-enactment challenge (see Leung Lai Kwok Yvonne v Chief Secretary for Administration, HCAL 32/2015, 5 June 2015, at paragraphs 40 to 44 per Au J; 張德榮 訴 政制及內地事務局局長, HCAL 45/2011, 11 July 2011, at paragraphs 13 to 18 per Lam J, as he then was).

32.These having been said, it is important to recognize that the court may, in “exceptional circumstances”, entertain an application for judicial review even where the application would otherwise be regarded as being premature.  It has been suggested that the court may justifiably do so where (i) the challenge involves a “clear and discrete sharp question of law”, or (ii) a “useful purpose” would be served, or “real utility” or “practical advantages” would be achieved, by allowing a challenge to be raised in advance of a final decision (see Birmingham Care Consortium v Birmingham City Council [2011] EWHC 2656 (Admin), at paragraph 31 per Beatson J; R (on the application of The Garden Leisure Group Ltd) v North Somerset Council [2003] EWHC 12605 (Admin), at paragraphs 35 and 56 per Richards J; R (Alconbury Developments Ltd Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, at paragraph 171 per Lord Clyde).

33.It has also been said that the courts may permit a pre‑enactment challenge of a proposed legislation to be mounted where the protection intended to be afforded by the constitution cannot be provided by the courts unless they intervene at an early stage, for instance where the consequences of the offending provision may be immediate and irreversible and give rise to substantial damage or prejudice (see The Bahamas Methodist Church v Symonette, at 209b-d per Lord Nicholls of Birkenhead).

34.Three further points should be mentioned at this juncture:-

(1) It is not possible to define exhaustively what may amount to exceptional circumstances which would justifying the court granting leave to apply for judicial review in circumstances where the challenge might otherwise be regarded as being premature.

(2) It is not helpful, in my view, to focus excessively on requirement of “exceptionality”, which may lead to fruitless debate on whether a particular case, or a particular feature in a case, is exceptional or not exceptional.

(3) A decision whether to grant leave to apply for judicial review in any given case involves the exercise of a judicial discretion which ultimately must rest on established principles as well as the justice of the situation.   As observed by Lord Nicholls in The Bahamas Methodist Church v Symonette, at 209, there is “no place for absolute and rigid rules” in this context.

35.There is one other matter that I ought to briefly deal with before turning to consider the question of whether the present challenge of the CEIC Decision is premature. In an application for leave to apply for judicial review, normally the applicant must demonstrate that his case is reasonably arguable with realistic prospects of success before leave will be granted by the court (see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  In reliance on the observation of Au J in paragraph 27 of his judgment in Television Broadcasts Ltd v Communications Authority, ante, Mr Lee submits that the same “arguability” test should apply where the question is whether the application is premature.  On the other hand, Mr Benjamin Yu SC on behalf of the putative respondents submits that when considering the question of leave, the proper question to ask is whether the applicant has demonstrated a reasonably arguable case which enjoys realistic prospects of success “for granting the relief sought” (see Shek Lai San v Securities and Futures Commission [2010] 4 HKC 168, at paragraph 44).  Thus, if a challenge is “premature”, it will not be reasonably arguable that the court will grant relief under the proposed judicial review and therefore leave should be refused (see Leung Lai Kwok Yvonne v Chief Secretary for Administration, ante, at paragraph 53 per Au J).

36.In my view, in the vast majority of cases, the court ought to be able to determine, at the leave stage, whether the challenge is premature.  If it is premature, leave should be refused.  If it is not, the court should go on to consider the merits of the application and ask whether the threshold for granting leave is crossed.  I do not, however, rule out completely the possibility that the court, at the leave stage, may not be able to reach a clear view on whether the challenge is premature, or whether there are exceptional circumstances which would justify the court’s intervention by way of judicial review.  In such a case, I consider that the “arguability” test should be applied to the issue of prematurity as well. 

DISCUSSION

37.This problem does not arise in the present case because I consider it to be plain that the challenge of the CEIC Decision is premature such that leave to apply for judicial review should not be granted.  First, the CEIC Decision is an “intermediate” decision which does not give rise to any substantive determination touching on, or affecting, the rights or interests of the applicants.  As made clear in the Legco Paper and confirmed in the affirmation of the Permanent Secretary for Transport and Housing (Transport), the Chief Executive in Council’s decision to endorse the implementation of the Proposed Co-location Arrangement is subject to the “Three-step Process”, the outcome of each step being outside the sole power or control of the SAR Government.  In particular:-

(1) in respect of Step One, the contents, terms and effect of any Co-operation Arrangement are dependent on the agreement yet to be reached between the SAR Government and the relevant Mainland authorities;

(2) in respect of Step Two, the approval and endorsement of any Co-operation Arrangement as may be agreed by the SAR Government and the relevant Mainland authorities by a decision of the NPCSC is something beyond the powers of the SAR Government; and

(3) in respect of Step Three, there can be no guarantee that any legislation which may be proposed by the SAR Government to give effect to any Co-operation Arrangement as may be approved and endorsed by the NPCSC will be passed by the Legislative Council.

38.On behalf of the applicants, Mr Lee argues, by reference to the public statements made by officials of the SAR Government mentioned above, that the CEIC Decision is a “substantive and conclusive” decision which is “final and irreversible”.  I accept, on the face of those public statements, that the SAR Government has made a final decision to seek to implement the Proposed Co-location Arrangement.  However, the actual implementation of the Proposed Co-location Arrangement is not a matter which the SAR Government can proceed with on its own, but is contingent on the acts and decisions of other parties or bodies who are not under the control of the SAR Government.  The CEIC Decision merely sets in motion a series of steps to be taken consecutively, the failure or non-fulfilment of any one of which may result in the abortion, or substantial modification, of the Proposed Co-location Arrangement.  I do not consider the CEIC Decision to be a “substantive” decision for the purpose of determining whether the current applications for leave to apply for judicial review are premature, because it is not a decision of a “decisive” nature, and does not carry with it any substantive legal consequences in so far as the applicants’ rights or interests are concerned.

39.Second, the factual and legal events relevant for determining the constitutionality or legality of the Proposed Co-location Arrangement have not yet occurred.  Unless and until the “Three-step Process” has been completed, the details of the Co-operation Arrangement, the NPCSC decision and the local legislation will not be known. Such details are plainly relevant to any discussion or determination of the constitutionality or legality of the Proposed Co-location Arrangement.  Mr Lee argues that, whatever may be the final form and contents of the Co-operation Arrangement, the NPCSC decision and the local legislation, the Proposed Co-location Arrangement would necessarily be contrary to the Basic Law, including in particular BL 18, which states as follows:-

“The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.

National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.

The Standing Committee of the National People’s Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the Hong Kong Special Administrative Region and the government of the Region. Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.

In the event that the Standing Committee of the National People’s Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People’s Government may issue an order applying the relevant national laws in the Region.”

40.Mr Lee further argues that the NPCSC has no power to override the basic policies of the People’s Republic of China regarding Hong Kong as enshrined in the Joint Declaration and the Basic Law, including that (i) the HKSAR will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People’s Government, and (ii) the HKSAR will be vested with executive, legislative and independent judicial power, including that of final adjudication, and that the laws previously in force in Hong Kong (prior to 1 July 1997) will be maintained.  Mr Lee also points out that under BL 159(3), no amendment to the Basic Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong.

41.I do not consider the position to be as straight forward as submitted by Mr Lee.  This is not the appropriate occasion to enter into a detailed discussion on the effect of any decision which may be made by the NPCSC to endorse and approve any Co-operation Arrangement which may be reached by the SAR Government and the relevant Mainland authorities.  I would merely observe that, as recently confirmed by the Appeal Committee of the Court of Final Appeal in Chief Executive of the HKSAR v The President of the Legislative Council, ante, at paragraph 35, the NPCSC’s power to interpret the Basic Law is general and unqualified, and includes legislative interpretation which can clarify or supplemental laws.  At this stage, it is simply not known whether the NPCSC decision which may be made to endorse and approve any Co-operation Arrangement put forward by the SAR Government and the relevant Mainland authorities will include, or be accompanied by, an interpretation of the relevant provisions of the Basic Law (including BL 18 strongly relied upon by Mr Lee and BL 20 referred to in the Legco Paper).  Assuming that no such interpretation will be included or accompany the NPCSC decision, it would still be a moot question as to whether the decision itself can be treated as an interpretation of the Basic Law by necessary implication, and what would be the effect of a decision of the NPCSC short of a formal interpretation.  To answer this question, it will be necessary to consider the further question of the “formal requirements” of an interpretation of a national law of the PRC by the NPCSC.  In so far as BL 159(3) referred to by Mr Lee is concerned, its true meaning and effect is also subject to interpretation.  In all, I do not consider that it is possible, at this stage, to come to any conclusion that the Proposed Co-location Arrangement would necessarily be contrary to the Basic Law whatever may be the final form and contents of the Co‑operation Arrangement, the NPCSC decision and the local legislation.

42.Third, the current challenge to the constitutionality or legality of the Proposed Co-location Arrangement amounts to, or involves, a pre‑enactment challenge of the local legislation which may be passed by the Legislative Council under Step Three.  Any suggestion that the protection intended to be afforded by the Basic Law (including the protection provided by the Hong Kong Bill of Rights pursuant to BL 39) to the applicants cannot be provided by the court unless it intervenes at this stage would simply beg the question of whether the final co-location arrangement after completion of the Three-step Process will be constitutional and legal.

43.Mr Lee submits that the present challenge does not amount to a “pre-enactment” challenge of the proposed local legislation because the decision under review is that of the Chief Executive in Council to implement the Proposed Co-location Arrangement rather than the relevant bill to be presented to the Legislative Council under Step Three.  I do not, however, consider it to be correct to view the CEIC Decision in isolation from the crux of the challenge, namely, that the Proposed Co-location Arrangement is, or will be, unconstitutional or illegal.  As is made clear in the Legco Paper, the local legislation to be passed by the Legislative Council is an integral part of the Three-step Process for implementing the Proposed Co-location Arrangement.  Any challenge of the CEIC Decision, which does not by itself give rise to any substantive legal consequence, must, in my view, include or involve a challenge of the proposed local legislation.  In any event, if I am wrong in my view that the present challenge amounts to a “pre‑enactment” challenge of the proposed local legislation and the CEIC Decision ought to be looked at in isolation, for the reasons mentioned above, I consider that such challenge to be equally premature.

44.Lastly, I should deal with a number of points raised by Mr Lee in support of the contention that there are “exceptional circumstances” in the present case which would justify the court granting leave to apply for judicial review notwithstanding the prematurity of the applications (which is not accepted by the applicants).  In particular, it is said that:-

(1) if the Proposed Co-location Arrangement is allowed to be completed before any legal challenge can be entertained by the court, huge amounts of costs and expenses would have been wasted in the event that the challenge is successful (see paragraph 51a of the Skeleton Arguments for the Applicants); 

(2) apart from monetary considerations, the SAR Government and the relevant Mainland authorities would be required to come up with a viable alternative in a very short time if the challenge should succeed after the final stage, and the costs and inconvenience involved would not only be wasted by the HKSAR but also by the Mainland (see paragraph 51b of the Skeleton Arguments for the Applicants);

(3) until and unless there is a ruling against the putative respondents, there is no incentive or reason for the SAR Government to consider any viable and lawful alternative, so that a lot of further time would be required before a new proposal could be made (see paragraph 51c of the Skeleton Arguments for the Applicants);

(4) thus, the commission of the XRL would have to be very substantially delayed until after judgment in the deferred judicial review proceedings (see paragraph 51d of the Skeleton Arguments for the Applicants); and

(5) an expression of the court’s view on questions of law in this present case would be of service not only to the parties but also to the legislative body, and avoid massive waste of costs incurred by legislative approval of a scheme that is belatedly discovered to be ultra vires (see paragraph 57 of the Skeleton Arguments for the Applicants). 

45.In my view, the matters mentioned in paragraph 44 above, relating mainly to matters of public expenditures and administrative expediency, are essentially political issues to be decided by the SAR Government and/or the relevant Mainland authorities instead of by the court.  They fall outside the proper functions of the court when exercising its supervisory jurisdiction in judicial review, and do not justify the court entertaining the present premature applications for judicial review.

DISPOSITION

46.For the foregoing reasons, in relation to each of HCAL 453/2017 and HCAL 455/2017, I refuse the application for leave to amend the Form 86, as well as the application for leave to apply for judicial review.  I also make an order nisi that the respective applicants shall pay the putative respondents’ costs of resisting those applications, to be taxed if not agreed with certificate for two counsel.

47.Messrs Lui and Li’s own costs in HCAL 455/2017 are to be taxed in accordance with legal aid regulations.

48.For the benefit of the taxing master, I shall apportion half of the costs of the hearing on 22 September 2017 to HCAL 453/2017 and half to HCAL 455/2017.

49.I make no order as to costs in relation to HCAL 458/2017 and HCAL 460/2017.

50.Lastly, it remains for me to thank counsel for their assistance rendered to the court.

HCAL 453 of 2017

Mr Martin Lee, SC, Ms Isabel Tam and Mr Duncan Ho, instructed by Ho, Tse, Wai & Partners, for the applicant

Mr Benjamin Yu, SC and Mr Abraham Chan, SC, instructed by Department of Justice, for the putative respondent

HCAL 455 of 2017

Mr Martin Lee, SC leading Mr Jeffrey Tam, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the 1^st and 2^nd applicants

Mr Benjamin Yu, SC and Mr Abraham Chan, SC, instructed by Department of Justice, for the putative respondent

HCAL 458 of 2017

The applicant appeared in person

Mr Benjamin Yu, SC and Mr Abraham Chan, SC, instructed by Department of Justice, for the 1^st to 4^th putative respondents

HCAL 460 of 2017

The applicant appeared in person

Mr Benjamin Yu, SC and Mr Abraham Chan, SC, instructed by Department of Justice, for the putative respondent