郭卓堅 v. 立法會主席及各立法會建制派議員(39人)

HCAL 1094 & 1120/2017

[2019] HKCFI 1482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1094 OF 2017

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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 1120 OF 2017

Before: Hon Chow J in Court

Dates of Hearing: 8-9 May 2019

Date of Judgment: 12 June 2019

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JUDGMENT

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This Judgment shall be divided into the following Sections:

I.     INTRODUCTION

1.Article 75 of the Basic Law (“BL 75”[1]) states as follows:

“(1) The quorum for the meeting of the Legislative Council of the Hong Kong Special Administrative Region shall be not less than one half of all its members (香港特別行政區立法會舉行會議的法定人數為不少於全體議員的二分之一).

(2)  The rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law (立法會議事規則由立法會自行制定，但不得與本法相抵觸).”

2.The question which arises for determination in these two applications for judicial review is whether the quorum requirement stipulated in BL 75(1) is applicable to a meeting of a committee of the whole Council (全體委員會會議).  The answer to this question depends on the true construction of that article.  In my view, the words “the meeting of the Legislative Council (立法會舉行會議)” in BL 75(1) refer only to a meeting of the Legislative Council as a full body sitting in plenary session, but not to a meeting of a committee of the whole Council.  Accordingly, the two applications for judicial review stand to be dismissed.

II.     THE LEGISLATIVE COUNCIL

3.The Legislative Council (“the Council”) of the Hong Kong Special Administrative Region is a body created under Section 3 (“The Legislature”) of Chapter IV (“Political Structure”) of the Basic Law.

4.By BL 66, the Council shall be the legislature of Hong Kong.  BL 67 and 68 contain broad provisions relating to the formation of the Council.  These provisions are supplemented by local enactment, in particular the Legislative Council Ordinance (Cap 542).  The sixth term of the Council, which commenced on 1 October 2016, has 35 Members returned by geographical constituencies, and 35 Members returned by functional constituencies.  Accordingly, the Council, if fully constituted, has 70 Members[2].

5.BL 71 provides for the election of the President of the Council (“the President”) by and from amongst the Members of the Council, and BL 72 sets out the powers and functions of the President.

6.By BL 73, the Council shall exercise the following powers and functions:

(1)  To enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures;

(2)  To examine and approve budgets introduced by the government;

(3)  To approve taxation and public expenditure;

(4)  To receive and debate the policy addresses of the Chief Executive;

(5)  To raise questions on the work of the government;

(6)  To debate any issue concerning public interests;

(7)  To endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court;

(8)  To receive and handle complaints from Hong Kong residents;

(9)  If a motion initiated jointly by one-fourth of all the members of the Legislative Council charges the Chief Executive with serious breach of law or dereliction of duty and if he or she refuses to resign, the Council may, after passing a motion for investigation, give a mandate to the Chief Justice of the Court of Final Appeal to form and chair an independent investigation committee.  The committee shall be responsible for carrying out the investigation and reporting its findings to the Council.  If the committee considers the evidence sufficient to substantiate such charges, the Council may pass a motion of impeachment by a two-thirds majority of all its members and report it to the Central People's Government for decision; and

(10)  To summon, as required when exercising the above-mentioned powers and functions, persons concerned to testify or give evidence.

7.It can be seen immediately that while the enactment, amendment and repeal of laws in Hong Kong is one of the main functions of the Council, it also exercises many other important functions and powers pertaining to the governance of Hong Kong.

III.     THE RULES OF PROCEDURE OF THE LEGISLATIVE COUNCIL

8.BL 75(2) provides for the making of the rules of procedure by the Council.  The “rules of procedure” mentioned in that article refer to, or include, those made by the First Legislative Council on 2 July 1998 as amended from time to time (“the RoP”)[3].  As mentioned at paragraph 1.49 of “A Companion to the History, Rules and Practices of the Legislative Council of the Hong Kong Special Administrative Region” (“the Companion”)[4], the RoP were adopted from the Standing Orders of the pre-1997 legislature of Hong Kong which were considered relevant to the post-1997 legislature, and also included new provisions which were considered necessary for the Council to implement some of the provisions in the Basic Law.

9.The RoP are internal rules of the Council to regulate its proceedings, and provide the principles and framework for the conduct of the business of the Council and its committees.  The RoP contain 105 rules, set out in 16 parts[5].  They prescribe in detail how the business of the Council should be transacted, including the introduction and processing of bills and amendments, requirements for the moving of motions, and how motions are debated, amended and voted on.  There are detailed provisions on the behaviour expected of Members in the performance of their duties in the Council, including rules of speaking and rules of order. There are also broad framework provisions on the operation of committees[6].

10.By Rule 1B[7], there shall be a President of the Council whose powers and functions are set out in BL 72, the laws of Hong Kong and the RoP.  Further, by Rule 3(1), the President, when present at a meeting of the Council or a committee of the whole Council and able, in his opinion, to act, shall preside or be Chairman.

11.Part B of the RoP (“Sessions, Meetings and Adjournments of the Council”) contains provisions relating to, inter alia, the quorum requirements for the Council and a committee of the whole Council (Rules 11 to 17).  Part K of the RoP (“Procedures on Bills”) contains provisions relating to the legislative process (Rules 50 to 66).  I shall refer to some of the relevant provisions in Part B and Part K of the RoP later in this judgment.

IV.     THE THREE-READING LEGISLATIVE PROCESS

12.In this section, I shall describe in some detail the three-reading legislative process of the Council in order to place in proper context the position occupied by, and the functions of, a committee of the whole Council.

13.The RoP provide for a legislative process which was adopted, with some modifications, from that found in the pre-1997 Standing Orders.

14.Notice of Presentation of Bills: the legislative process starts with a notice given by a Member of the Council or a designated public officer of his intention to present a bill sent to the office of the Clerk to the Council (“the Clerk”) (Rule 51(1)).

15.Presentation and Publication of Bills: the Clerk shall, after receipt of a bill for presentation to the Council:

(1)  cause the text of the bill and its explanatory memorandum to be published in the Gazette unless (a) the President directs that the bill shall not be published in the Gazette before it has been read the first time, or (b) the bill has already been published in the Gazette in accordance with Rule 51(6) in the case of a “private bill” (Rule 52(1)); and

(2)  cause a copy of the bill and its explanatory memorandum to be sent to every Member, whereupon the bill shall be deemed to have been presented to the Council (Rule 52(2)).

16.First Reading of Bills:

(1)  The short title of a bill presented to the Council in accordance with Rule 52(2) shall be placed on the Agenda of the Council for first reading at such meeting as may be specified to the Clerk by the Member in charge of the bill (Rule 53(1)).

(2)  No debate is allowed upon the first reading of a bill; and the bill is deemed to have been read the first time upon the Clerk reading the short title (Rule 53(2)).

(3)  When a bill has been read the first time, the Council is deemed to have ordered the bill to be set down for second reading (Rule 53(3)).

17.Second Reading of Bills:

(1)  The Council proceeds to the second reading of a bill on a motion that the bill be now read the second time; and on this motion a debate may arise covering the general merits and principles of the bill (Rule 54(3)).

(2)  Except in relation to Appropriation Bills, when the Member in charge of a bill has spoken on a motion that the bill be now read the second time, the debate is adjourned and the bill is referred to the House Committee unless the Council, on a motion which, with the consent of the President, may be moved without notice by any Member, otherwise orders (Rule 54(4)).

(3)  The House Committee to whom a bill has been referred may allocate it to a Bills Committee for consideration, or may cause it to be considered in such other manner as the House Committee thinks fit (Rule 75(4)).  In most cases, a Bills Committee would be formed if there is no dissenting voice[8]. The House Committee may also provide guidelines relating to the procedures of a Bills Committee (Rule 75(8)).

(4)  The procedures of a Bills Committee are set out in Rule 76.  Rule 76(7) provides that a Bills Committee shall consider the general merits and principles, and the detailed provisions, of the bill allocated to it; and may also consider any amendments relevant to the bill.  As soon as a Bills Committee has completed consideration of the bill allocated to it, it notifies the House Committee and advises it in writing of the Bills Committee’s deliberations and where appropriate, the majority and minority views, and whether or not the Bills Committee supports the bill[9].  After discussion at the House Committee on its deliberations, the Bills Committee shall submit a report to the Council and arrange for it to be presented at the same Council meeting at which the resumption of the second reading debate on the bill takes place[10].  The discussion at the House Committee upon the completion of the work of a Bills Committee is on whether the bill is ready for resumption of further proceedings in the Council.  The decision of the House Committee is not on whether the bill is to be supported, but rather on whether there is support for the second reading debate on the bill to be resumed at a Council meeting as requested by the Member or public officer in charge of the bill[11].

(5)  The resumed second reading debate on the bill is on the general merits and principles of the bill.  After all Members who wish to speak have spoken, the President will then put the question “That the bill be read the second time” to vote[12].

(6)  When a motion for the second reading of a bill has been negatived no further proceedings shall be taken on that bill (Rule 54(8)).

18.Committal of Bills/Committee Stage: when a motion for the second reading of a bill has been agreed to, the bill shall stand committed to a committee of the whole Council, unless –

(1)  the Council, on a motion which, with the consent of the President, may be moved without notice by any Member immediately after the bill has been read the second time, commit the bill to a select committee; or

(2)  the President is of the opinion that the bill would specially benefit or otherwise specially affect some particular person or association or corporate body, in which case he may direct that the bill be committed to a select committee (Rule 55(1)).

19.I am given to understand that the procedure of committing a bill to a select committee has fallen into disuse in recent times.  Apparently, the last time when a bill was referred to a select committee was in 1968.  Nevertheless, as emphasized by Mr Benjamin Yu, SC (for the President) and Mr Wong Yan Lung, SC (for the Secretary for Justice), the power of the Council or President under Rule 55(1) to refer a bill to a select committee still exists.  I shall come back to the functions of a committee of the whole Council, and the procedures of the Committee Stage, later in this judgment.

20.Third Reading of Bills:

(1)  After a bill has navigated through the Committee Stage, the Council proceeds to the third reading of a bill on a motion that the bill be read the third time and do pass.  Debate on that motion is confined to the contents of the bill and no amendment may be moved to the motion (Rule 63(1)).

(2)  Amendments for the correction of errors or oversights may, with the President’s permission, be made to the bill before the question for the third reading of the bill is put by the President, but no amendments of a material character shall be proposed (Rule 63(2)).

(3)  When a motion for the third reading of a bill has been agreed to, the Clerk shall read the short title of the bill and shall write at the end of the bill the words “Passed by the Legislative Council of the Hong Kong Special Administrative Region this day” giving the date (Rule 63(3)).

(4)  When a motion for the third reading of a bill has been negatived no further proceedings shall be taken on that bill (Rule 63(4)).

21.Under BL 76, a bill passed by the Council may take effect only after it is signed and promulgated by the Chief Executive.

V.     A COMMITTEE OF THE WHOLE COUNCIL

22.A committee of the whole Council has existed in the legislative process in Hong Kong since 1858 when the then Standing Orders provided rules for the committal or recommittal of a bill to a committee of the whole Council after it had been read the second time in the Council.  In the Companion, it is stated that “[i]t has also been a practice since 1858 that the committee of the whole Council (which comprises the same membership of the Council) will meet immediately after a bill has been read the second time so that the committee stage of a bill takes place immediately after the second reading stage.  The President, who is also the Chairman of the committee of the whole Council, will make an announcement that the Council resolves itself into a committee of the whole Council or resumes as Council”[13].

23.A committee of the whole Council consists of all the Members of the Council including the President, although he is referred to as the Chairman of the committee.  “Almost all rules of speaking, decorum and order, voting and other procedures set out in Parts H (Rules of Speaking), I (Rules of Order) and J (Voting) of the Rules of Procedure which apply to the Council also apply to a committee of the whole Council.  The only difference is that in committee of the whole Council, as an exception to the general rule that Members may only speak once on a question, a member may speak more than once”[14].

24.The functions and procedures to be followed in a committee of the whole Council are set out in Rule 56 to Rule 59:

(1)  A committee of the whole Council to which a bill has been committed shall not discuss the principles of the bill but only its details (Rule 56(1)).

(2)  A committee of the whole Council has power to make such amendments to the bill as they shall think fit, provided that the amendments, including new clauses and new schedules, are relevant to the subject matter of the bill (Rule 56(2)).

(3)  Rule 57 makes provisions for amendments to a bill, and Rule 58 sets out detailed procedures relating to the proceedings of a committee of the whole Council.

In short, the functions of a committee of the whole Council are to discuss the details of a bill (ie the individual clauses and schedules, but not its principles), make amendments, and add new clauses and schedules to a bill.

25.When all the proceedings upon the bill have been concluded in committee, the Council shall resume.

(1)  Prior to its amendment in December 2017, Rule 58(12) provides that a Member shall report the bill to the Council with or without amendment as the case may be.  It appears, however, that in practice no member was called upon to report on the bill[15].  In any event, Rule 59 provides that when a bill has been reported from a committee of the whole Council, the Council shall be deemed to have ordered the bill to be set down for third reading.

(2)  After the amendment in December 2017, Rule 58(12) provides that the report of the bill to the Council is to be made by the Member or the public officer in charge of the bill.  Rule 59(1) provides that, when a bill has been reported from a committee of the whole Council, the Member or the public officer in charge of the bill shall move a motion that the report be adopted.  Rule 59(2) further provides that the motion moved under Rule 59(1) shall be voted on forthwith without amendment or debate.  If the motion is agreed to, the Council shall be deemed to have ordered the bill to be set down for third reading.  If the motion is negatived, no further proceedings shall be taken on the bill (Rule 59(2)).

VI.     OTHER COMMITTEES OF THE COUNCIL

26.Part M of the RoP (“Committees”) contain provisions relating to the establishment, functions and procedures of various committees of the Council (Rules 71 to 81).  As stated in paragraph 6.1 of the Companion, the legislature of Hong Kong has a long history of establishing committees of various kinds to assist it in performing its constitutional powers and functions.  The roles of these committees are set out either in the RoP or are approved by resolutions of the Council for specific purposes at the time when such committees are required.  The committee structure of the Council is modelled on those adopted by British colonial legislatures during the early 1900s.

27.There are the following types of committees in the Council[16]:

(1)  standing committees, namely the Finance Committee, Public Accounts Committee and Committee on Members’ Interests;

(2)  select committees which may be appointed by resolution of the Council to consider matters or bills;

(3)  committees of a standing nature with specific functions, namely the House Committee, 18 Panels, Committee on Rules of Procedure and a committee of the whole Council;

(4)  Bills Committees and subcommittees of the House Committee to study legislative proposals which are dissolved upon completion of work;

(5)  subcommittees set up by the House Committee with specific functions, such as the Parliamentary Liaison Subcommittee, or for assisting the House Committee in considering any items relating to the business of the Council, such as the Subcommittee on Review of Operating Expenses for Members of the Legislative Council;

(6)  subcommittees set up by the House Committee and by Panels to study policy issues for a period not exceeding one year unless with the approval of the House Committee; and

(7)  investigation committee appointed upon a motion moved to disqualify a Member from office under BL 79(7).

On a regular basis, there could be more than 50 committees working at the same time during a session of the Council[17].

28.For the purpose of this judgment, it is not necessary to further consider the compositions, functions or procedures of these different committees, save to point that their meetings are subject to specific and different quorum requirements.  In particular –

(1)  the quorum for a meeting of the House Committee, whose membership shall be all the Members of the Council other than the President, is constituted by 20 members including the chairman (Rule 75(12A)); and

(2)  the quorum for a meeting of a Bills Committee, whose membership shall be those Members (other than the President) who signify membership in accordance with the procedural rules decided by the House Committee, is constituted by 3 members including the chairman, or one third of the members including the chairman (a fraction of the whole number being disregarded), whichever is the greater (Rule 76(3)).

It is not suggested by the Applicants that BL 75(1) has any application to these committees.

29.On behalf of the Applicants, it is argued that a committee of the whole Council is not a committee created by or established under the RoP, as shown by the fact that it is not mentioned in Part M of the RoP.  The President and the Secretary for Justice argue otherwise.  While it is correct that the establishment, composition, powers and functions, procedures, etc, of a committee of the whole Council are not set out in Part M of the RoP like other committees of the Council, provisions relating to its powers, functions, and procedures (including quorum requirement) can be found in Parts B and K of the RoP, in particular Rules 17, 55, 56, 57 and 58.  I do not consider it to be significant that there is no express provision in the RoP which states that “there shall be a committee to be called a committee of the whole Council” as there is one in relation to the Finance Committee (Rule 71), Public Accounts Committee (Rule 72), Committee on Rules of Procedure (Rule 74), House Committee (Rule 75), Bills Committees (Rule 76), etc.  What is important is the substance, not the form, of the matter.  In my view, a committee of the whole Council is a committee created by or established under the RoP, or (if I am wrong in this view) should be regarded as being established pursuant to the conventions of the Council.  In any event, it is clear that a committee of the whole Council is not a creature of the Basic Law.

VII.    THE PRE-1997 AND POST-1997 QUORUM REQUIREMENTS FOR THE COUNCIL AND A COMMITTEE OF THE WHOLE COUNCIL

30.Prior to 1 July 1997, the quorum of the Council was set by the Royal Instructions, while that of a committee of the whole Council was set by the Standing Orders.

31.In so far as the quorum of the Council prior to 1 July 1997 is concerned:

(1)  Clause XIX of the 1917 Royal Instructions provided as follows: “[The Council] shall not be competent to act in any case unless (including the Governor or the Presiding Member) there be present at and throughout the meetings of the Council five Members at the least”.

(2)  On 17 February 1969, the 1917 Royal Instructions were amended, inter alia, to change the above quorum requirement to ten Members.

(3)  On 24 August 1983, the 1917 Royal Instructions were further amended, inter alia, to change the quorum requirement to twenty Members.  This amendment came into effect on 1 September 1983, and remained in force up to 30 June 1997.

32.On the other hand, in relation to the quorum of a committee of the whole Council prior to 1 July 1997:

(1)  By Clause XXIII of the 1917 Royal Instructions, the Council was authorized to make standing rules or orders for the regulation of their own proceedings, provided that such rules and orders not be repugnant to the Letters Patent, Royal Instructions or other Instructions applicable to Hong Kong.

(2)  The Standing Orders made by the Council did not make any provision regarding the quorum for a meeting of a committee of the Whole Council (which, as earlier mentioned, had existed as part of the legislative process in Hong Kong since 1858) until a revised set of the Standing Orders was approved by the Council on 9 October 1968.  For the first time, Order 10(1) prescribed the quorum for a meeting of a committee of the whole Council in the following terms: “The quorum of the Council and of a committee of the whole Council shall consist of ten Members excluding the President or Chairman”.

(3)  On 3 November 1971, Order 10(1) of the 1968 Standing Orders was amended to change the word “excluding” to “including”.  In other words, Order 10(1) became: “The quorum of the Council and of a committee of the whole Council shall consist of ten Members including the President or Chairman”.  This amendment came into effect on 1 December 1971.

(4)  On 27 July 1983, Order 10(1) was amended to change the quorum requirement to twenty Members.  This amendment came into effect on 1 September 1983, and remained in force up to 30 June 1997.

33.It would appear, therefore, that that there were inconsistent quorum requirements for the Council under the Royal Instructions, and for the Council and a committee of the whole Council under the Standing Orders during the period from 9 October 1968 to 1 December 1971, and the quorum requirements for the two bodies under the two instruments only became aligned as from 1 December 1971.  In particular:

(1)  Prior to 9 October 1968, the quorum of the Council under the Royal Instructions was at least five Members including the Governor or the Presiding Member.  There was no express provision concerning the quorum of a committee of the whole Council in the Standing Orders.

(2)  During the period from 9 October 1968 (when the revised Standing Orders came into force) to 17 February 1969, the quorum of the Council under the Royal Instructions was at least five Members including the Governor or the Presiding Member, while the quorum of the Council and a committee of the whole Council under the Standing Orders was ten members excluding the President or Chairman.

(3)  During the period from 17 February 1969 to 1 December 1971, the quorum of the Council under the Royal Instructions was at least ten Members including the Governor or the Presiding Member, while the quorum of the Council and a committee of the whole Council under the Standing Orders was ten members excluding the President or Chairman.

(4)  During the period from 1 December 1971 to 1 September 1983, the quorum of the Council under the Royal Instructions was at least ten Members including the Governor or the Presiding Member, while the quorum of the Council and a committee of the whole Council under the Standing Orders was also ten members including the President or Chairman.

(5)  Lastly, as from 1 September 1983 to 30 June 1997, the quorum of the Council under the Royal Instructions was twenty Members including the Governor or the Presiding Member, while the quorum of the Council and a committee of the whole Council under the Standing Orders was also twenty member including President or Chairman.

34.For the purpose of this judgment, it is not necessary to decide how the abovementioned apparent inconsistencies in the quorum requirements for the Council under the Royal Instructions and those for the Council and a committee of the whole Council under the Standing Orders during the period from 9 October 1968 to 1 December 1971 should be resolved, save to point out that the Standing Orders were sub-ordinate to the Royal Instructions and would be void or invalid in so far as they were repugnant to the Royal Instructions.  What is significant for the present purpose is that since at least 9 October 1968, the quorum requirement for a committee of the whole Council was set, not by the Royal Instructions, but by the Council’s own internal rules, ie, the Standing Orders.

35.Since 1 July 1997, the quorum requirements for the Council and a committee of the whole Council have been set by the Basic Law (instead of the Royal Instructions) and the RoP (instead of the Standing Orders).  As mentioned above:

(1)  Under BL 75(1), the quorum of the Council shall be not less than one half of all its members.

(2)  Under Rule 17(1), prior to its amendment on 15 December 2017 which took effect upon gazettal on 22 December 2017, “[t]he quorum of the Council and of a committee of the whole Council shall be not less than half of all its Members including the President or Chairman”.

VIII.   THE DECISION TO AMEND RULE 17(1)

36.The decision under challenge in these applications for judicial review is the decision of the Council to amend, inter alia, Rule 17(1) on 15 December 2017 (“the Decision”).  The background circumstances leading to the amendment are not material for the purpose of this judgment, and shall not be set out here.  The motion to amend was passed (i) with 22, 5 and 1 Members in the Functional Constituencies voting respectively in favour of, against and in abstention on the motion, and (ii) 16, 6 and 0 Members in the Geographical Constituencies voting respectively in favour of, against and in abstention on the motion.

37.After its amendment, Rule 17(1) is split into sub-rules (1) and (1A), as follows:

“(1) The quorum of the Council shall be not less than one half of all its Members including the President.

(1A)  The quorum of a committee of the whole Council shall be 20 members including the Chairman.”

38.In short, the effect of the amendment is to reduce the quorum for a meeting of a committee of the whole Council from not less than half of all the Members of the Council including the Chairman (ie 35 Members when the Council is fully constituted) to 20 Members including the Chairman.

IX.     APPLICATIONS FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

39.On 18 December 2017, Mr Kwok Cheuk Kin (then acting in person) applied for leave to apply for judicial review of the Decision in HCAL 1094/2017.  The proposed respondents to the application were the President and 38 Members of the Council who voted in favour of the resolution to amend Rule 17(1) on 15 December 2017.

40.On 20 December 2017, Mr Leung Kwok Hung applied for leave to apply for judicial review of the Decision in HCAL 1120/2017. The proposed respondent to the application was the “President of the Legislative Council for and on behalf of the Legislative Council”.

41.On 5 January 2018, the court directed a rolled-up hearing of the two applications (and one other application which has since been disposed of), to be heard together.

42.On 15 March 2018, Mr Kwok (through his solicitors) gave notice of his intention to amend the Form 86.  Detailed arguments in support of the challenge to the Decision were set out in the draft Amended Form 86.  The proposed respondent was changed to the “President of Legislative Council on behalf of the Legislative Council”, and the Secretary for Justice was named as an interested party.  On 16 March 2018, the court directed that Mr Kwok’s application to amend the Form 86 should be dealt with at the rolled-up hearing.

43.On 5 November 2018, the court granted leave to the Secretary for Justice to join as an Intervener in these proceedings.

X.     BL 75(1) DOES NOT APPLY TO A MEETING OF A COMMITTEE OF THE WHOLE COUNCIL

44.As mentioned at the beginning of this judgment, the question of whether the prescribed quorum requirement in BL 75(1) applies to a meeting of a committee of the whole Council depends upon its true construction.  In my view, it does not, for the following reasons.

45.First, it is well established that when the court seeks to ascertain the true meaning of an article of the Basic Law, the court must consider the purpose of the instrument and its relevant provisions as well as the language of the article in question in the light of its context, context being of particular importance in the interpretation of a constitutional instrument[18].

46.Although BL 75(1) refers to the quorum for the meeting of the “Legislative Council of the Hong Kong Special Administrative Region”, it has been held that this expression in the Basic Law does not necessarily mean only the Council as a full body sitting in plenary session. In Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, it was argued that only the Council as a full body sitting in plenary session had the power to summon persons to testify or give evidence under BL 73(10) when exercising the powers and functions under BL 73(1) to (9), and the reference to the “Legislative Council” in that article did not include or extend to a “Select Committee” appointed by the Council to inquire into various matters of public controversy. I have set out the text of BL 73 in paragraph 6 above and shall not repeat the same here.  Andrew Cheung J (as he then was) considered, inter alia, the purpose and context of BL 73 and came to the conclusion that on its true construction, the power to summon persons to give evidence under BL 73(10) could be exercised not only by the Council as a full body sitting in plenary session but also by a select committee appointed by the Council in accordance with the RoP.

47.The following passages in his Lordship’s judgment are relevant for the present purpose:

[94] The applicants’ arguments are relatively straightforward … argues in a forceful submission that “Legislative Council” in article 73 simply refers to the Legislative Council constituting the legislature of the Hong Kong Special Administrative Region (under article 66), which has a total membership of 60. It does not refer to any committees (or panels) of the Legislative Council. As article 75 provides that the quorum for the meeting of the Legislative Council shall not be less than one-half of all its members, the Legislative Council in article 73 can only exercise its powers and functions set out in the 10 sub-paragraphs therein, including sub-paragraph (10), in meetings of the Legislative Council with the requisite quorum under article 75. Although counsel has expanded her submission in different ways, essentially her point remains that “Legislative Council” simply means what it says, the full body of the Legislative Council, but not any other combinations of its members – be they called committees, panels or otherwise.

[96] The respondents as well as the Secretary for Justice adopt the same stance. In a nutshell, they contend that article 73 must be interpreted sensibly and flexibly. The term “Legislative Council” must be construed to include the committees etc. of the Legislative Council, where the circumstances require…

[123] Again, it must be emphasised that the Basic Law does not create a new legislature out of a vacuum. The committee system had been around for a long time and was still under development in 1990 when the Basic Law was promulgated. The Basic Law expressly leaves it to the new Legislative Council to make its own Rules of Procedure. Both as a matter of history and development as well as a matter of the nature of the substantive powers and functions to be performed, that at least some of the powers and functions described in article 73(1) to (9) may be exercised at committee level must have been something fully envisaged by the drafters of the Basic Law.

[125] As I read it, article 73 is concerned with setting out or describing the powers and functions that the Legislative Council may exercise. It is not primarily concerned with how those powers and functions are to be exercised. Nor is it concerned with providing a precise definition of what “Legislative Council” means in the context of exercising its powers and functions.

[137] I note that article 62(6), in setting out the powers and functions of the Government of the Hong Kong Special Administrative Region, states that one of the powers and functions of the Government is to “designate officials to sit in on the meetings of the Legislative Council and to speak on behalf of the government”. In my view, it is quite plain that article 62(6) does not refer only to government officials’ sitting in on the plenary meetings of the Legislative Council and speaking on behalf of the Government in those meetings, but applies also to their sitting in on the committee meetings of the Council and speaking on behalf of the Government in those committee meetings, where required, as was and is indeed the practice in real life.

[138] If this interpretation of article 62(6) be correct, as I consider that it is, it demonstrates how flexible “the Legislative Council” is used in the Basic Law. It also goes a long way towards rebutting Ms Rose’s argument in reply that article 48(11) provides a sharp contrast to article 73. In my view, it is dangerous to treat the Basic Law as if it were a piece of ordinary legislation and use the standard technique of compare-and-contrast to bring out a certain meaning by way of interpretation.

[143] As a matter of language, “Legislative Council” in article 73 is quite clearly capable of meaning the Legislative Council functioning as a full body or the Council functioning through committees, as the individual context may require, just as the term is capable of such interpretation under articles 62(6), 77 and 78.

…..

[200] So for all these reasons, I have come to the firm conclusion that the interpretation of the applicants of article 73(10) must be rejected. On its proper interpretation, article 73(10) provides for the exercise by the Legislative Council, whether sitting as a full body, or, functioning through a select committee in accordance with its Rules of Procedure, the power to summon, as required when exercising the powers and functions set out in article 73(1) to (9), persons concerned to testify or to give evidence before the full body, or (as the case may be) the committee, of the Legislative Council.

48.BL 75 is found in Section 3 of Chapter IV of the Basic Law, which contain provisions concerning the establishment of the Council and setting out its powers and functions as well as how such powers and functions are to be exercised.  The Council, created by BL 66, is the legislature of the HKSAR, being one of the three principal branches of the political structure of the HKSAR, and is given important powers and functions as more particularly spelt out in BL 73.  The Council is made up of Members returned by election as prescribed by BL 68.  It transacts its business at meetings of its Members, and its decisions are made by votes cast by Members at such meetings.  The position of the Council in the governmental structure of the HKSAR, as well as its mode or manner of operation, provide the context of BL 75.  The purpose of BL 75 is to prescribe an appropriate quorum for the Council to validly transact its business at meetings of its Members when discharging its important constitutional powers and functions.

49.The context and purpose of BL 75(1) as described above strongly support the view that the true legislative intent is that the quorum requirement prescribed by that article should apply only to meetings of the body tasked with the important constitutional powers and functions as enumerated in BL 73, ie the Council itself, but not that of a mere committee of the Council.  The Basic Law is a constitutional instrument which sets out broad general principles for the governance of the HKSAR.  A committee of the whole Council is essentially a working committee to fine tune the details of a bill after its general merits and principles have been considered by a Bills Committee and accepted by the Council at the second reading of the bill.  While it can readily be understood why the Basic Law would prescribe the quorum of the Council which must be satisfied before it can validly meet and transact its business, it is difficult to see why the Basic Law would be concerned with the quorum requirement for meetings of a committee of the Council.

50.Second, the draftsman of the Basic Law was plainly aware of the committee system of the Council and the distinction between the Council and its committees, as shown by the fact that BL 48(11) expressly empowers the Chief Executive to decide whether government or public officials should testify or give evidence before “the Legislative Council or its committees”[19]. It is common ground that BL 75(1) does not govern the quorum requirements for other committees of the Council, such as the House Committee or a Bills Committee.  There is no reason why a committee of the whole Council should be treated differently from other committees of the Council in this regard.

51.Third, it is well established that a general theme of the Basic Law is that of continuity of the social, economic and legal institutions and systems in Hong Kong which existed prior to 1 July 1997[20].  As noted above, prior to the handover, the quorum requirement for the Council was set by a constitutional instrument, ie the Royal Instructions, while the quorum requirement for a committee of the whole Council was set by the Council’s internal rules, ie the Standing Orders.  The theme of continuity supports the view that after 1 July 1997, the same system is adopted such that the quorum of the Council would be set by the Basic Law while the quorum of a committee of the whole Council would be set by the RoP.

52.Fourth, BL75(1) is followed by sub-article (2), which states that “[t]he rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law”. This sub-article enables the Council to set up various committees of the Council and prescribe their procedures including the quorum requirements for such committees.  Again, it is difficult to see why a committee of the whole Council should be treated differently from other committees of the Council.

53.I am fortified in the above conclusion by the fact that the same view was also expressed by Andrew Cheung J (as he then was) in Cheng Kar Shun [2011] 2 HKLRD 555 (although it would be fair to point out that this issue was not one which the learned Judge had to decide in that case):

[129] Fourthly, one also has other provisions in the Basic Law, such as the quorum requirement in article 75(1), insofar sitting in plenary session of the Legislative Council is concerned…

[132] Ms Rose seeks to strengthen her interpretation of “Legislative Council” in article 73 by reference to the same term in article 75(1), which provides for the quorum of the (plenary) meeting of the Legislative Council. Given the context, the term in article 75(1) can only mean the full body of the Council.

54.I shall now deal with a few specific points raised by Mr Hectar Pun, SC (on behalf of Mr Leung) and/or Mr Jeffrey Tam (on behalf of Mr Kwok) in support of the argument that the quorum requirement in BL 75(1) applies not only to a meeting of the Council as a full body sitting in plenary session but also a meeting of a committee of the whole Council.

55.First, it is argued that the Council has the same membership as a committee of the whole Council, and the two bodies are the same with two different labels when they perform different and overlapping functions.  While it is factually correct to say that the Council and a committee of the whole Council have the same membership, the Council’s powers and functions are much wider than those of a committee of the whole Council. Their procedures are also not identical (see paragraph 23 above).  Further, the Council is a creature of the Basic Law, while a committee of the whole Council is a creature of the Council.  I do not consider that there is any sufficient legal basis for the argument that the two bodies are the same with two different labels.

56.Second, it is argued that the process of a committee of the whole Council is an important and integral part of the legislative process of the Council.  Again, that is a correct statement, but there are also other committees, eg, the House Committee and Bills Committee, which generally perform important and integral steps in the legislative process of the Council.  There are no logical or legal reasons why these committees (including a committee of the whole Council), or any of them, should have the same quorum requirement as that for the Council.

57.Third, Mr Pun places strong reliance on the provisions in Part II of Annex II to the Basic Law, which state (inter alia) as follows:

“II. Procedures for voting on bills and motions in the Legislative Council

Unless otherwise provided for in this Law, the Legislative Council shall adopt the following procedures for voting on bills and motions.

The passage of bills introduced by the government shall require at least a simple majority vote of the members of the Legislative Council present.

The passage of motions, bills or amendments to government bills introduced by individual members of the Legislative Council shall require a simple majority vote of each of the two groups of members present: members returned by functional constituencies and those required by geographical constituencies through direct elections and by the Election Committee.” [emphasis added]

58.Mr Pun argues that the above provisions clearly apply to a meeting of a committee of the whole Council because “amendments to government bills” only occur at the Committee Stage, and thus the reference to “Legislative Council” in that Part must include a reference to a committee of the whole Council.  However, the above provisions are concerned with the voting procedures on bills and motions, and have nothing to do with the quorum for meetings of the Council or a committee of the whole Council.  I do not consider that those provisions affect the true construction of BL 75(1) which concerns the quorum requirement for meetings of the Council.

59.Fourth, Mr Pun contends that BL 75(1) does not prescribe a specific quorum for a meeting of the Council; it only sets out “a minimum requirement” and “[i]t is for the Council to prescribe the exact quorum requirement for the Council through the making of Rules of Procedure under Article 75(2).  It is possible for the Legislative Council to make a rule to the effect that the quorum of the Council shall be 40 Members”[21].  Mr Yu submits otherwise, pointing out that BL 75(1) states that “the quorum … shall be not less than one half of all its members”, not that “the quorum … shall not be less than one half of all its members”.  I agree with Mr Yu’s submission, which seems to me to accord with the natural reading of BL 75(1).

60.Fifth, the court has been referred to a large body of materials in respect of the historical origin of a committee of the whole House in the UK, on which a committee of the whole Council was modelled. There is a divergence of position taken by Mr Tam and Mr Pun on how far the parallel between the two bodies would assist in resolving the question of whether the quorum requirement set by BL 75(1) is applicable to a meeting of a committee of the whole Council.

61.Mr Tam argues that a committee of the whole House is frequently equated with the whole House, relying on statements in textbooks such as “[a] committee of the whole House … is, in fact, the House itself in a less formal guise”[22], and “[a] committee of the whole House is really the House, without the Speaker, under another name”[23]. He argues that since a committee of the whole Council was modelled on a committee of the whole House and a committee of the whole House is the same as the House, so a committee of the whole Council should also be regarded as being the same as the Council[24].

62.On the other hand, while Mr Pun does not, I understand, dispute the fact that a committee of the whole Council in Hong Kong was modelled on a committee of the whole House in the United Kingdom, he says that “Mr Leung has never relied on the so-called English history or origin of the concept of ‘committee of the whole Council’ in either his Form 86 or his Skeleton; instead Mr Leung all along accepted that the ‘committee of the whole Council’ in the Hong Kong Legislature is very different from its English counterpart.  As it was put in the Companion at §7.11, the arrangement in Hong Kong is an ‘unique arrangement’”[25].

63.It is, in my view, clear that the system or practice in Hong Kong of committing a bill after its second reading to a committee for detailed, clause by clause and line by line consideration, was based on the Westminster parliamentary model.  It is also clear that a committee of the whole Council in Hong Kong was, historically, modelled on a committee of the whole House in the United Kingdom, which first sat on 11 March 1607[26]. There are, however, significant differences between the two bodies in respect of their compositions and functions.  In respect of compositions, unlike the position in Hong Kong where the President also acts as the Chairman of a committee of the whole Council, the Speaker of the House of Commons does not preside over a committee of the whole House[27]. In Griffith & Rye on Parliament Functions, Practice and Procedures (2003), it is said at paragraph 6-224 that –

“A committee of the whole House is really the House, without the Speaker, under another name. The device was originally used for a variety of purposes when the House wished certain matters to be considered in detail before being formally approved by the House itself; in particular it enabled Members to debate matters without ‘the King’s man’ (i.e. the Speaker) being in the chair.”

64.In other words, the exclusion of the Speaker from the chair of a committee of the whole House was by design, whereas the dual chairmanship of the President in Hong Kong, a unique arrangement different from other legislatures based on the Westminster parliamentary model, has been said to “owe more to expediency than to any special principle”[28].

65.In respect of functions, in Hong Kong, it is a standing practice for a bill, after it has been read the second time in the Council, to be committed to a committee of the whole Council, although in theory the bill may be committed to a select committee instead[29].  On the other hand, in the UK, the majority of bills are now considered in public bill committees[30], save that bills of major constitutional importance, emergency and other expedited legislation, bills of an uncontroversial nature such as Consolidation Bills, and private Members’ bills which are unopposed and of which all the stages are taken without debate, are generally committed to a committee of the whole House.

66.I agree with Mr Yu that it is dangerous to transpose descriptions such as those mentioned in paragraph 61 above willy-nilly from one context to another without regard to the specific legal issue or purpose under consideration.  Those descriptions merely show that the authors might have been prepared to treat the two bodies (ie, the House and a committee of the whole House) as the same for the purpose of the discussions in question[31].  However, those discussions do not concern the quorum requirements for a meeting of the House or a meeting of a committee of the whole House, or suggest that the House and a committee of the whole House are the same, or treated as being the same, so far as quorum is concerned.  It is common ground of the parties that there is no evidence before the court as regards the historical respective quorum requirements for a meeting of the House and a meeting of a committee of the whole House, save that it appears from Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 24^th Ed (2011), at pp 319 and 585, that the same quorum requirement of 40 applies to both as at the date of that edition of the treatise.

67.Further, there is no legal basis to support any proposition that whatever may be the relation between the House and a committee of the whole House so far as quorum is concerned, the same relation should hold true for the Council and a committee of the whole Council.  Overall, I do not consider Mr Tam’s reliance on the historical origin of a committee of the whole Council adds much to the present debate.

68.In conclusion, while I consider the Applicants’ challenge to the Decision to be reasonably arguable, on a full consideration I am not satisfied that the quorum requirement set by BL 75(1) is applicable to a meeting of a committee of the whole Council.

XI.     STANDING

69.The above conclusion makes it unnecessary to consider Mr Yu’s argument that neither of the two Applicants has standing to apply for judicial review of the Decision.  For the sake of completeness, I shall state my views on this matter briefly.

70.I summarized the relevant principles on standing in Kwok Cheuk Kin v Commissioner of Police [2017] 6 HKC 93, at paragraph 94, and do not propose to repeat them here.  For the purpose of the leave stage, I consider Mr Kwok and Mr Leung to have a sufficient interest in the matter to which the present applications relate.  However, on a full consideration, I do not consider that they have a sufficient interest because (i) of the above conclusion on the (lack of) merits of the applications, and (ii) there are other potential applicants, namely, those Members of the Council who opposed the Decision to amend Rule 17(1), who a have a direct interest in the matter and who are better placed to bring the present challenge.  It has not been suggested that there are any legal impediments to prevent them from taking steps to challenge the Decision by way of judicial review if they so wish.  The mere fact that the opposing Members have decided not to seek judicial review of the Decision cannot, however, confer standing on Mr Kwok or Mr Leung to do so.

71.I do not consider the position of Mr Leung to be any different from that of Mr Kwok on the question of standing.  While Mr Leung was formerly a Member of the Council, he was no longer a Member at the time when the Council made the Decision on 15 December 2017, having been disqualified from assuming his office as such Member since 12 October 2016 as held by Au J (as he then was) in HCMP 3382/2016 and HCAL 224/2016 on 14 July 2017.  Au J’s judgment was confirmed by the Court of Appeal in CACV 200 and 201/2017 on 15 February 2019.  Although Mr Leung is seeking leave to appeal the Court of Appeal’s judgment to the Court of Final Appeal, I am told that the leave application has not yet been determined.  This court is bound by the judgment of the Court of Appeal to treat Mr Leung’s disqualification as being lawful and correct.  It follows that, for the present purpose, Mr Leung ought to be regarded as an ordinary member of the public like Mr Kwok.

XII.    DISPOSITION

72.I grant leave to Mr Kwok to amend the Form 86, with costs to the President, to be taxed if not agreed, with certificate for one senior counsel and one junior counsel.

73.I also grant leave to the Applicants to apply for judicial review, but dismiss their substantive applications for judicial review.  I do not see any sufficient reasons in the present case to depart from the general rule that costs should follow the event.  I make an order that the Applicants shall pay the costs of the President, to be taxed if not agreed, with certificate for one senior counsel and one junior counsel.

74.The Applicants and the Secretary for Justice are agreed that there should be no order as to costs as between them whatever the outcome of the applications.  I so order.

75.Mr Leung’s own costs shall be taxed in accordance with legal aid regulations.

76.Finally, it remains for me to thank counsel for their assistance rendered to the court.

Mr Jeffrey Tam and Mr Ernest CY Ng, instructed by Ho, Tse, Wai & Partners, for the Applicant in HCAL 1094/2017

Mr Hectar Pun, SC and Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co, assigned by Director of Legal Aid, for the Applicant in HCAL 1120/2017

Mr Benjamin Yu, SC, Mr Abraham Chan, SC, Mr Danny Tang and Mr John Leung, instructed by Deacons, for the Putative Respondents in both cases

Mr Wong Yan Lung, SC and Mr Anthony Chan, instructed by Department of Justice, for the Intervener in both cases