梁頌恆 v. 立法會主席

HCAL 1160 & 1165/2018

[2018] HKCFI 1869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1160 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1165 OF 2018

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DECISION

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INTRODUCTION

1.In the Form 86 dated 21 June 2018 filed in HCAL 1160/2018, Mr Leung challenges the following “decision” of the Legislative Council of the HKSAR (the “Legco”):-

“立法會於2018年6月14日通過《廣深港高鐵 (一地兩檢) 條例草案》 (下稱一地兩檢草案) 的表決” (the passing of the motion for the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill by the Legislative Council on 14 June 2018).

The President of the Legco (the “Legco President”) is named as the Respondent and the Secretary for Justice is named as the Interested Party in the application for judicial review.

2.In the Form 86 dated 22 June 2018 filed in HCAL 1165/2018, Mr Kwok challenges the following “decisions”:-

“特首林鄭月娥所提出在香港(特别[1])行政區內設立內地口岸區，實施一地兩檢” (the Chief Executive’s proposal to establish the Mainland Port Area to implement the Co-location Arrangement); and

“已刊憲之 (一地兩檢及其附屬法例)” (the gazetted Co-location Arrangement legislation and subsidiary legislation).

The Chief Executive of the HKSAR is named as the Respondent in the application for judicial review.

3.On 16 July 2018, Mr Leung and Mr Kwok (collectively, “the Applicants”) each issued a summons in HCAL 1160 and 1165 of 2018 respectively seeking the following relief:-

“暫緩執行立法會於2018年6月14日通過的《廣深港高鐵 (一地兩檢) 條例草案》直至法庭完成審議五個司法覆核案件” (stay of execution of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill passed by the Legislative Council on 14 June 2018 pending the court’s determination of 5 applications for judicial review).

4.This is the court’s decision on the 2 applications for interim relief.

BASIC FACTS

5.The background facts relating to the Co-location Arrangement are well known to the parties, and were set out in this court’s previous decision in HCAL 453, 455, 458 and 460 of 2017 dated 27 September 2017.  I do not propose to set them out again here.  At the time of that decision, the Co-location Arrangement was still a proposal, the implementation of which was subject to the fulfilment or completion of three conditions or steps, namely:-

Step One:    the Mainland and the HKSAR reaching a “Co‑operation Arrangement” in relation to the implementation of the Co-location Arrangement;

Step Two:    the Standing Committee of the National People’s Congress of the PRC (“NPCSC”)’s approval and endorsement of the Co‑operation Arrangement; and

Step Three:  both sides implementing the arrangement pursuant to their respective procedures, including local legislation in Hong Kong.

6.On 18 November 2017, the《內地與香港特別行政區關於在廣深港高鐵西九龍站設立口岸實施“一地兩檢” 的合作安排》(Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement) was signed.

7.On 27 December 2017, the《全國人民代表大會常務委員會關於批准〈內地與香港特別行政區關於在廣深港高鐵西九龍站設立口岸實施“一地兩檢” 的合作安排〉的決定》(Decision of the NPCSC on Approving the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement) (“the NPCSC Decision”) was adopted at the Thirty-first Session of the Standing Committee of the Twelfth National People’s Congress.

8.On 26 January 2018, the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill (“the Bill”) was presented to the Legco.  In the Bill, the “Mainland Port Area” is defined to mean (i) the area declared as the West Kowloon Station Mainland Port Area under Section 4, and include (ii) a train compartment to be regarded as part of the West Kowloon Station Mainland Port Area under Section 5, ie a train compartment of a passenger train in operation on the Guangzhou-Shenzhen-Hong Kong Express Rail Link (“XRL”) (including a passenger train which is in motion, stationary and during embarkation or disembarkation).  Section 6 of the Bill provides that, except for certain reserved matters (as provided for in Section 3), the Mainland Port Area is to be regarded as an area lying outside Hong Kong but lying within the Mainland for the purposes of (a) the application of the laws of the Mainland, and of the laws of Hong Kong, in the Mainland Port Area; and (b) the delineation of jurisdiction (including jurisdiction of the courts) over the Mainland Port Area.

9.The Bill was read in the Legco the first time on 31 January 2018, the second time on 13 June 2018, and the third time on 14 June 2018.  On 21 June 2018, the Bill was signed by the Chief Executive.  On 22 June 2018, the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (“the Ordinance”) was published in the Gazette as Ord No 23 of 2018.  Accordingly, the three steps have now been completed.

10.Section 1(2) of the Ordinance provides that it shall come into operation on a day to be appointed by the Secretary for Transport and Housing by notice published in the Gazette.  No date has yet been appointed for the coming into operation of the Ordinance.  I am given to understand, however, that it is the Government’s current plan that theXRL shall commence service under the Co-location Arrangement in September 2018.

11.As earlier mentioned, the two applications for leave to apply for judicial review herein were made on 21 and 22 June 2018 respectively.  The court has directed a rolled-up hearing of the leave and substantive applications, and they, together with 3 other applications for judicial review, have been fixed to be heard on 30 and 31 October 2018.

APPLICABLE PRINCIPLES

12.In The Chief Executive of the Hong Kong Special Administrative Region and Another v The President of the Legislative Council, HCAL 185/2016 and HCMP 2819/2016, 18 October 2016, Au J confirmed that, for the purpose of deciding whether to grant interim injunctive relief in public law cases, the American Cyanamid principles governing the grant of interlocutory injunction, subject to necessary modifications, remained applicable.  Under the traditional American Cyanamid principles, the court should consider:-

(1) whether there is a serious issue to be tried in the action;

(2) if the plaintiff were to succeed at the trial, whether he would be adequately compensated by an award of damages for any loss caused by a refusal to grant an interlocutory injunction;

(3) if damages would not be an adequate remedy to the plaintiff, whether, if the injunction were granted, the defendant would be adequately compensated under the plaintiff’s undertaking as to damages; and

(4) if there is doubt as to the adequacy of the respective remedies in damages, whether the balance of convenience lies in favour of granting or refusing the interim injunction sought.

13.In the public law context, the above principles have to be modified in, inter alia, the following aspects.

(1) Where an interim injunction is sought to restrain a government authority from enforcing what is prima facie the law of the land, the applicant has normally to go further than merely showing a serious issue to be tried.  Generally speaking, he will need to establish a “strong prima facie case” that the law is invalid, although exceptionally an applicant may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just and convenient to restrain its enforcement by an interim injunction even though he is unable to discharge such a heavy burden (see R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603, at 674B-D per Lord Goff and 678G-679C per Lord Jauncey; R v Secretary of State for Trade and Industry, ex parte Trades Union Congress [2001] 1 CMLR 8, at paragraphs 24-26 per Buxton LJ; and Cheung Tak Wing v Communications Authority, HCAL 60/2015, 12 June 2015, at paragraph 26 per Au J).

(2) In relation to the question of balance of convenience, the court takes a wider view than just the interests of the immediate parties to the application.  The court must take into account the public interest in the balancing exercise (see Cheung Tak Wing, ante, at paragraph 29; Smith v Inner London Education Authority [1978] 1 All ER 411 at 422, per Browne LJ).  The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge, eg very different considerations may apply in a public law challenge against (i) a disciplinary process affecting the employment of an applicant or his employment benefits, and (ii) a decision by a public body to carry out large scale public works based on environmental grounds.

(3) The relevance of damages as an alternative remedy will also vary depending on the nature of the decision under challenge. For example, it has been said that where public works of great costs are being challenged, the adequacy of damages will effectively be irrelevant, for the simple reason that the applicant will, in the vast majority of cases, simply not be in any position to pay the damages which may be occasioned by a delay of the public works for any appreciable period of time (see Society for Protection of the Harbour v Chief Executive-in-Council [2003] 3 HKLRD 960, at paragraph 11 per Hartmann J (as he then was)).  The present case is, I consider, of a similar nature.

(4) This does not mean that financial consequences are to be ignored.  They remain relevant to a consideration of the balance of convenience, but should not be regarded as the sole measure in assessing the balance of convenience (see Society for Protection of the Harbour, ante, at paragraph 13).

(5) As commented by the authors of De Smith, Woolf & Jowell’s Principles of Judicial Review, at p593 (quoted by Hartmann J in Society for Protection of the Harbour, ante, at paragraph 11):

“… in case involving the public interest, for example, where a party is a public body performing public duties, the decision to grant or withhold interim injunctive relief will usually be made not on the basis of adequacy of damages but on the balance of convenience test”.

(6) Ultimately, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial), or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial (see Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, at 680 per Hoffmann J (as he then was), an approach endorsed by Lord Jauncey in Factortame, at 683).

14.There are two other relevant principles which I should mention before I consider whether the court should grant the interim injunction sought in this case.

(1) Save in exceptional circumstances, interim relief may only be granted if leave to apply for judicial review has been obtained (see Practice Directions SL3, paragraph 10).

(2) Even where leave to apply for judicial review has been obtained, the existence of an early hearing date for the substantive application for judicial review is a good reason for the court to refuse to grant interim relief (see R v Secretary of State for Education, ex p Avon CC [1991] 1 QB 558).

DISCUSSION

15.In relation to the substantive merits of this case, Mr Leung contends that the Ordinance is inconsistent with as many as 10 articles of the Basic Law, including Articles 2, 11, 18, 19, 22, 35 and 38 thereof, and therefore unconstitutional.  On the other hand, Mr Kwok contends that the designation of the Mainland Port Area as an area lying outside Hong Kong but lying within the Mainland under the Co-location Arrangement as approved by the NPCSC is inconsistent with Order No 221 of the State Council of the PRC relating to the delineation of the boundary of the HKSAR.  It is trite that an Ordinance, duly passed by the Legco and signed by the Chief Executive and subject to Article 17 of the Basic Law (relating to the power of the NPCSC to “return” the Ordinance), is generally presumed to be valid until it is proven otherwise.  Mr Leung and Mr Kwok, who are acting in person, have, understandably, not developed legal submissions in any detail in support of their contention that the Ordinance is inconsistent with the Basic Law.  For the purpose of the present applications, I shall assume that there is a “serious issue to be tried” on the question of whether the Ordinance is inconsistent with the Basic Law.  I do not propose to express any further view on this issue in the view of the fact that (i) it will have to be fully argued at the rolled up hearing in October 2018, and (ii) the present applications can, I consider, readily be disposed of upon a consideration of the balance of convenience.

16.On the issue of balance of convenience, the present case is an obvious one where the interest of the public should be taken into account and given considerable weight because, should the court grant an interim injunction restraining the coming into force of the Ordinance, it is clear that the XRL will not able to commence service in September 2018.  Although there is some faint suggestion by Mr Leung that the XRL could still operate based on a “separate-location arrangement” (兩地兩檢) in reliance upon certain statement made by the Transport and Housing Bureau to the Legco in 2008, it is clear that such arrangement is no longer feasible in view of the fact there are no provisions or facilities for conducting customs, immigration and quarantine clearance procedures in the next four train stations for the XRL in the Mainland after a passenger train leaves the West Kowloon Station in Hong Kong (see paragraph 29 of the Affirmation of Mr Lai Yee-tak, the Permanent Secretary for Transport and Housing (Transport), dated 3 August 2018).  Mr Lai has also given evidence on the adverse impact on travellers, workers and businessmen that could result from a delay in the commencement of service of the XRL (see paragraphs 14 to 26 of the Affirmation of Mr Lai).  The adverse impact includes (i) loss of income by MTRC (operator of the XRL) and other franchised bus and mini-bus companies (providers of connecting services to the West Kowloon Station), estimated at HK$372.6 million per month, (ii) wasted operating and maintenance costs incurred by MTRC and the franchised bus and mini-bus companies, estimated at HK$179.9 million per month, (iii) loss of employment, commerce, business and tourism opportunities for Hong Kong, (iv) disruption of travel plans or restriction of choice of, or inconvenience to, the travelling public to and from the Mainland, and (v) damage to the reputation of Hong Kong as a regional transportation hub and to the overall reputation of Hong Kong.

17.The above figures for the estimated financial losses are not accepted by Mr Leung and Mr Kwok.  For the present purpose, it is not necessary for the court to come to at any definite figures, because it cannot seriously be disputed that the financial losses would, on any view of the matter, be very substantial (running into many millions of dollars per month).  There also cannot be any serious doubt that if the court grants the interim injunction sought by the Applicants but it is ultimately found that the Ordinance is constitutionally valid, very substantial loss and damage of the types mentioned by Mr Lai will be suffered by the society of Hong Kong as a whole.

18.On the other hand, as far as the interests of the particular Applicants before the court are concerned, neither has suggested that he intends to travel to the Mainland using the XRL, assuming that the Co-location Arrangement shall be implemented in accordance with the provisions of the Ordinance, pending the final determination of the applications for judicial review.  There are other viable means of transport which they, and other members of the public who are opposed to the Co-location Arrangement, can utilize to travel to and from the Mainland.

19.I do not lose sight of the fact that the present applications for judicial review raise issues which go far beyond a mere matter of transportation.  Issues of principle such as the application of the laws and the delineation of jurisdiction (including the jurisdiction of the courts) in or over the Mainland Port Area are raised in these applications.  Mr Leung and Mr Kwok have postulated situations where a member of the public who takes the XRL to travel to the Mainland in the interim period pending the final determination of the applications for judicial review may find himself being “wrongly” subjected to PRC laws or penal sanctions which he ought not to be so subjected to because the Ordinance, as ultimately found by the court, is constitutionally invalid, and argue that the adverse consequences to that person would, or might, be irreversible.  It is, however, a matter of free choice for any member of the public who is opposed to the Co-location Arrangement for one reason or another to decide whether to take the XRL, or enter the Mainland Port Area, during the interim period.  Mr Benjamin Yu, SC also points out that the possible harm or damage postulated by Mr Leung and Mr Kwok are purely hypothetical and, in any event, would not be suffered by them personally.  Since the court’s primary consideration when deciding where the balance of convenience lies is that of public interest, I believe that the court should not ignore completely the potential harm or damage which may be suffered by third parties in the balancing exercise.  Nevertheless, since it is the Applicants who are advancing the present applications, the fact that the potential harm or damage will be suffered by third parties and not by them is a relevant factor to be taken into account, so also is the risk, or degree of likelihood, of such harm or damage materialising.

20.Mr Leung also argues that Hong Kong, or the public, would suffer damage if the court should make a “wrong” decision now in refusing to grant the interim injunction but the applications for judicial review should ultimately be successful.  Such damage would or may include disruption of travel plans, damage to the reputation of Hong Kong, and possibly liability to pay compensation or damages for sudden cessation of businesses.  I accept that some such damage may arise in the scenario postulated by Mr Leung.  However, as earlier mentioned, the court’s task is to take a course which appears to carry the lower risk of injustice if it should turn out to have been wrong in granting, or refusing to grant, the interim injunction.  On an overall assessment of this matter, I consider it to be clear that the potential harm or damage arising from a “wrong” decision to refuse to grant the interim injunction will likely be less, or less severe, as compared to the potential harm or damage which may be caused by a “wrong” decision to grant the interim injunction.  In other words, refusing to grant the interim injunction sought will, I consider, carry a lower risk of injustice.

21.Lastly:-

(1) there is, so far as I can see, no exceptional circumstances in the present case to justify the grant of interim relief prior to the Applicants obtaining leave to apply for judicial review; and

(2) the existence of an early hearing date also militates against the need for interim relief in the present case.

22.There is one other problem in Mr Leung’s application in HCAL 1160/2018 for interim relief that I should mention. The Legco President is named as the respondent to the application, and the relief sought is an order for a “stay of execution” of the Bill.  I am given to understand that, by seeking a “stay of execution” (暫緩執行) of the Bill, Mr Leung is asking the court to grant an order to restrain the coming into force of the Ordinance.  That being the application, it seems obvious that the proper respondent to the application should be the Secretary for Transport and Housing, who is empowered by Section 1(2) of the Ordinance to appoint a day for the coming into operation of that Ordinance by notice, or the Government of the HKSAR.  In this regard, it should be recognised that the Secretary for Transport and Housing is not a subordinate of the Legco President, and does not act under his order or direction.  Once the Bill has been passed by the Legco, the Legco President has no further role to play in relation to the coming into force of the Ordinance.  In my view, it is clear the application for interim relief should not have been made against the Legco President.  I should mention, to be fair to Mr Leung, that he made it clear, at the hearing as well as in a previous letter dated 2 August 2018, that he was not seeking any order against the Legco President personally by the present application, although he maintained that the Legco President was responsible for the passing of the Bill in the Legco.

23.In all, I have reached the clear conclusion that the applications for interim relief should be refused.

DISPOSITION

24.For the foregoing reasons, the Applicants’ two summonses dated 16 July 2018 are dismissed, with costs to the Chief Executive/Secretary for Justice and the President of the Legislative Council respectively to be taxed if not agreed.  I do not consider the circumstances of the present case are such as would justify an order for indemnity costs against Mr Leung as sought by Mr Tang for the Legco President.

The Applicant in HCAL 1160/2018, acting in person

The Applicant in HCAL 1165/2018, acting in person

Mr Simon Tang , of P C Woo & Co, for the Putative Respondent in HCAL 1160/2018

Mr Benjamin Yu , SC and Mr Abraham Chan, SC instructed by Department of Justice, for the Putative Respondent in HCAL 1165/2018 and the Putative Interested Party in HCAL 1160/2018