Secretary for Justice v. Leung Kwok Hung

HCMA 520/2018

[2020] HKCA 424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 520 OF 2018

(ON APPEAL FROM ESS NO 16969 OF 2017)

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Before:  Hon Poon CJHC, Lam VP and Pang JA in Court

Dates of Hearing:  1 August 2019 and 12 May 2020

Date of Judgment: 2 June 2020

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J U D G M E N T

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Hon Poon CJHC:

A. Introduction

1.In Hong Kong, a member of the Legislative Council (“LegCo”) enjoys various privileges and immunities both at the constitutional and statutory level.  One such privilege and immunity is the freedom of speech and debate in LegCo or proceedings before a committee.

2.At the constitutional level, article 77 of the Basic Law provides:

“Members of the Legislative Council of the Hong Kong Special Administrative Region shall be immune from legal action in respect of their statements at meetings of the Council.”

The Basic Law being a constitutional document, the wording used in article 77 is necessarily broad and general.  More details of the privilege and immunity are to be found at the statutory level in the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (“LC(PP)O”).

3.Sections 3 and 4 of the LC(PP)O respectively provides:

“3. Freedom of speech and debate

There shall be freedom of speech and debate in the Council or proceedings before a committee, and such freedom of speech and debate shall not be liable to be questioned in any court or place outside the Council.

4. Immunity from legal proceedings

No civil or criminal proceedings shall be instituted against any member for words spoken before, or written in a report to, the Council or a committee, or by reason of any matter brought by him therein by petition, Bill, resolution, motion or otherwise.”

Although couched in greater details, the intention of the two sections is to confer the same privilege and immunity on LegCo members contained in article 77 of the Basic Law: Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, per A Cheung J (as he then was) at [160].

4.At the same time, the LC(PP)O provides for a range of criminal offences in Part IV.  Featuring in this appeal is section 17(c) for contempt:

“Any person who –

…

(c) creates or joins in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee while the Council or such committee is sitting,

commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months, and in the case of a continuing offence to a further fine of $2,000 for each day on which the offence continues.”

5.This appeal concerns the scope of the privilege and immunity of sections 3 and 4, their interface with section 17(c) and the constitutionality of section 17(c) if they apply to a LegCo member. There are two core issues raised:

(1)  If the conduct of a LegCo member in purportedly exercising his freedom of speech and debate in the Council or proceedings in a committee falls within the description of section 17(c), is he nevertheless protected by sections 3 and 4 so that he cannot be prosecuted for the offence of contempt?  Put in another way, is section 17(c) applicable to a LegCo member so that when his conduct is caught by the provision when he is purportedly exercising his freedom of speech and debate in the Council or proceedings in a committee, sections 3 and 4 do not immunize him against a prosecution for the offence of contempt?

(2)  If a LegCo member is liable to be prosecuted under section 17(c), does the provision offend the doctrine of separation of powers, thus rendering it unconstitutional?

B.      The facts

6.On 15 November 2016, the Panel on Housing and the Panel on Development of LegCo held a joint meeting.  It was attended by, among others, the respondent who was then a LegCo member and the then Under Secretary for Development, Mr Ma Siu-cheung.  Mr Ma had a meeting folder containing some confidential documents, which was placed on the bench in front of him.  In the course of the meeting, the respondent left his seat, approached Mr Ma, snatched away Mr Ma’s folder, and then passed it to another LegCo member for him to read, ignoring the repeated demands of the chairperson of the joint meeting to go back to his seat and to return the folder to Mr Ma.  In the end, the chairperson pursuant to relevant Rule of the Rules of Procedure (“RoP”) ordered the respondent to withdraw from the meeting.[1]  Mr Ma’s folder was retrieved by the security guard and returned to him.

7.After the meeting, the then Chief Secretary for Administration by a letter dated 15 November 2016, complained to the President of LegCo about the respondent’s grossly disorderly conduct and asked him to take any action as appropriate.  In his reply letter dated 21 November 2016, the President stated that unless the RoP were amended, the chairperson of the meeting could take no further action in addition to ordering the respondent to withdraw from the meeting.  He also noted that the issue of deterring members’ disorderly conduct had been examined by the Committee on Rules of Procedure but no consensus was reached.  In view of the Chief Secretary’s concern, he would ask the chairman of that Committee to consider if the issue ought to be re-visited in the Sixth LegCo.[2]

C.      Proceedings below

8.On 12 May 2017, the respondent was prosecuted for the offence of contempt, contrary to section 17(c) of the LC(PP)O.

9.After a preliminary hearing, which lasted for 4 days between 15 and 18 January 2018, Acting Principal Magistrate Ms Ada Yim (“the Magistrate”) on 5 March 2018 ruled that what is said and done by a LegCo member during proceedings is within the sphere of the privilege under section 3 of the LC(PP)O provided that it does not amount to an ordinary criminal offence; and that although section 17(c) of the LC(PP)O was applicable to the proceedings of LegCo or a committee in general, it was not applicable to LegCo members.  That being her rulings, the Magistrate did not find it necessary to decide whether section 17(c), if found to be applicable to a LegCo member, was unconstitutional.  The hearing before the Magistrate has since been adjourned sine die.

D.      Questions of law

10.Pursuant to section 105 of the Magistrates Ordinance, Cap 227, the Secretary for Justice appealed against the Magistrate’s rulings by way of case stated.  At the Direction Hearing on 29 November 2018, Anthea Pang J ordered that the appeal be reserved for the consideration of the Court of Appeal under section 118(1)(d) of the Magistrates Ordinance.

11.Four questions of law based on the Magistrate’s rulings are raised in the Amended Case Stated dated 9 August 2019:[3]

(1)  Was the Magistrate correct in finding that what is said and done by a member of LegCo during the proceedings is within the sphere of the privilege provided that it does not amount to an ordinary criminal offence? (Question 1)

(2)(a)  Was the Magistrate correct in ruling that, upon true interpretation, section 17(c) of the LC(PP)O is not applicable to the members of LegCo? (Question 2(a))

(2)(b)  Was the Magistrate correct in ruling that, upon true interpretation, section 17(c) of the LC(PP)O is applicable to the proceedings of LegCo or a committee in general (i.e. not limited to proceedings related to evidence taking under oath)? (Question 2(b))

(3)  Should the Magistrate’s ruling that section 17(c) is inapplicable to the respondent be upheld on the further alternative basis that section 17(c) is unconstitutional if interpreted to apply to a member of LegCo? (Question 3)

12.These Questions require a vigorous examination and application of the relevant principles on the concept and scope of privilege and immunities that the law confers on LegCo members qua members of the legislature of the Hong Kong Special Administrative Region.

E.      Scope of sections 3 and 4 and their interface with section 17(c)

13.Although Ms Margaret Ng, appearing for the respondent,[4] relied on section 4, on the facts of this appeal, it does not add anything to the analysis at hand.  For it is the respondent’s primary case that the privilege of section 3 covers not only what he said but also his conduct in exercising the freedom of speech and debate, even if it falls within the description of section 17(c).  In other words, section 17(c) simply does not apply to him.  Ms Ng has not advanced any argument that section 4 will separately and independently immunize him against a prosecution under section 17(c).  It is therefore not necessary to embark on a separate analysis of section 4.  For present purposes, the scope of section 3 will also determine that of section 4.

E1.    A matter of statutory interpretation by the court

14.Since both sections 3 and 17(c) are statutory provisions, their scope and interface must be determined by the courts as a matter of statutory interpretation.  Indeed, in Leung Kwok Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR 689, the Court of Final Appeal at [39]-[43] held that under the constitutional framework of the Basic Law, the courts will determine whether LegCo has a particular power, privilege or immunity.

15.This accords with the English approach.

16.In England, article 9 of the Bill of Rights (1689) provides for the privilege of speech and debate thus: “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”  There is another form of privilege that has its origin before 1689 and which is wider than, and embraces, article 9.  This has been customarily described as the “exclusive cognisance of Parliament”: R v Chaytor [2011] 1 AC 684, per Lord Phillips at [13].  It refers to the exclusive right of the Parliament to regulate its own affairs without interference from the other or from outside Parliament: Chaytor, supra, per Lord Phillips at [63].  Including in its exclusive cognisance is Parliament’s power to discipline its own members for misconduct and, further, power to punish anyone, whether or not a member, for behavior which interfere substantially with the proper conduct of parliamentary business.  Such interference is known as contempt of Parliament.  This falls within the penal jurisdiction exercised by each House to ensure that it can carry out its constitutional functions properly and that its members are not obstructed or impeded.  See Report on Parliamentary Privilege published on 9 April 1999 by the Joint Committee on Parliamentary Privilege, Chapter 1, at [14].[5]

17.It is well-settled that it is for the courts to determine the scope of parliamentary privilege whether it is under article 9 or matters within the exclusive cognisance of Parliament: R (Miller) v Prime Minister [2019] 3 WLR 589, per Baroness Hale and Lord Reed at [66].

E2.    A purposive and contextual approach

18.It is trite that the courts adopt a purposive and contextual approach to statutory interpretation.  The context of a statutory provision is taken in its widest sense and includes other provisions of the statute and the existing state of the law: T v Commissioner of Police (2014) 17 HKCFAR 593, per Ribeiro PJ at [48].  It also includes its legislative history and purpose: Secretary for Justice v Cheng Ka Yee (2019) 22 HKCFAR 97, per French NPJ at [34].

19.Ms Ng submitted that the LC(PP)O is a codifying and consolidation statute.  In view of her submission, it is convenient to briefly examine the relevant state of law which pre-existed its enactment in 1985.[6]

E3.    The relevant law

20.It is well established that like other colonial legislatures, the privileges and immunities attached to the pre-1997 LegCo were derived from the common law doctrine of inherent necessity: Rediffusion (Hong Kong) Ltd v Attorney General of Hong Kong [1970] AC 1136, per Lord Diplock at p.1157E.  Under that doctrine, colonial legislatures are deemed to possess such privileges and immunities that are necessarily incidental to their capacity to function as legislative bodies: New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319, McLachlin J (as she then was), at p.379e-g.

21.The first and foremost privilege that colonial legislatures have arising from that doctrine is the freedom of speech and debate in the legislature.  In Chenard & Co v Arissol [1948] AC 127, Lord Reid at pp.133-134 reiterated that by the doctrine of inherent necessity, to enable a colonial legislature to properly exercise its functions, such a privilege exists and is absolute.  Quoting Martin CJ in Gipps v McElohne (1881) 2 NSW 18, at p.21, he said:

“There is no doubt in my mind of the existence of this privilege, and that it is absolute. It arises from inherent necessity. The necessity is just as great as in the Imperial Parliament.”

22.The privileges and immunities of a colonial legislature are, however, not identical to the privileges and immunities that the English Parliament has in every aspect: Rediffusion (Hong Kong) Ltd v Attorney General of Hong Kong, supra, per Lord Diplock at pp.1154G-1155A.  It is because the parliamentary privilege of the English Parliament sprang from its authority as a court, which is not applicable to colonial legislatures: New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), supra, per McLachlin J at pp.379i-380g.

23.One such aspect concerns the penal powers to punish those who have committed contempts in the legislature.  The English Parliament has such penal powers, the origin of which is again probably based on the medieval concept of the English Parliament as primarily a court: see Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (25^th ed, 2019) at §11.23.[7] A colonial legislature, established by constitutional instruments such as Letters Patent and Royal Instructions, does not have the same power peculiar and inherent to the English Parliament to punish for contempt.  Nor is such power essential to its existence or proper discharge of its functions: Doyle v Falconer (1886) LR 1 PC 328, at pp.339-341.

24.In Doyle v Falconer, supra, the Privy Council at p.340 drew the important distinction between the disciplinary power of a colonial legislature to deal with contempts and the courts’ judicial power to impose criminal sanctions on such conduct:

“It is necessary to distinguish between a power to punish for a contempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a Member of a Colonial House of Assembly is guilty of disorderly conduct in the House whilst sitting, he may be removed, or excluded for a time, or even expelled; but there is a great difference between such powers and the judicial power of inflicting a penal sentence for the offence. The right to remove for self-security is one thing, the right to inflict punishment is another. … [Whenever] the violation of order amounts to a breach of the peace, or other legal offence, recourse may be had to the ordinary tribunals.”

25.In New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), ibid, McLachlin J referred to the same distinction between disciplinary and penal power of a colonial legislature based on the doctrine of necessity:[8]

“[These] legislatures would need to exercise certain very moderate privileges which were necessary for the maintenance of order and discipline during the performance of their duties. But these were to be protective and not punitive powers, for the latter were again considered to be characteristic of a court rather than of a legislative body.”

26.In 1985, LegCo exercised its inherent disciplinary power to maintain order and discipline by Standing Orders.[9]  In Part H, the rules of debate were set out, covering the time and manner of speaking (Standing Order 27); occasions when a member may speak more than once (Standing Order 28); interruption (Standing Order 29); contents of speeches (Standing Order 31); behavior of members not speaking (Standing Order 32).  The rules clearly required LegCo members to conduct the legislative and deliberative business in a dignified, orderly and civilized manner, commensurate with the institutional and social importance of LegCo and the dignity and solemnity of its proceedings.  To cater for instances of contempts, pursuant to Standing Order 34(2), the President of LegCo or a chairman in committee shall order a member whose conduct was grossly disorderly to withdraw immediately from the Council for the remainder of that sitting.  As to a stranger, a member of the public or the press, Standing Order 67 stipulated the steps to be taken for the President or chairman to order him to withdraw from the Council.  Apparently, the ground for ordering withdrawal was not limited to gross disorderly conduct.  These Standing Orders collectively set a standard of orderly behavior for both members and non-members, commensurate with its institutional and social importance, so that LegCo can perform its functions orderly and effectively without interference and disruptions.  These Standing Orders remained after the enactment of the LC(PP)O.

27.LegCo did not claim to have any penal jurisdiction over disorderly conduct generally whether committed by anyone, members or not.  Nor was there any such criminal offence.

28.For proceedings of taking evidence, LegCo had penal jurisdiction as provide for in section 4(1) of the Oath and Declarations Ordinance, Cap 11 (“ODO”):[10]

“The Legislative Council and any committee thereof may administer an oath to a witness examined before the Council or committee, and for that purpose shall have the same powers, rights and privileges as are possessed or exercisable by the House of Commons of the United Kingdom or any committee for enforcing the attendance of witnesses and punishing persons guilty of contempt.”

No separate criminal offence was found in statute or at common law.

29.To sum up, the state of the relevant law existing at the time of the enactment of the LC(PP)O is this.  LegCo members had the absolute privilege of freedom of speech and debate in Council by virtue of the doctrine of inherent necessity.  LegCo also had inherent disciplinary power to maintain its order and discipline to deal with contempts including the power to order a member to withdraw on gross disorderly conduct or a non-member to withdraw.  But LegCo did not have penal jurisdiction to impose criminal sanctions, such as fine or imprisonment, against any person, whether he was a member or not, for his disorderly conduct generally.  There was no criminal offence for such disorderly conduct either.  LegCo had jurisdiction to punish persons guilty of contempt in connection with proceedings for taking evidence under section 4(1) of the ODO.  However, there was no criminal offence as such in the criminal statute or at common law.

E4.    The legislative deliberations

30.The deliberations during the legislative process also shed light on the purpose and context of the LC(PP)O.

31.The LC(PP)O was enacted with the resumption of sovereignty of Hong Kong by the Government of the People’s Republic of China in 1997 in view.  In moving the second reading of the Legislative Council (Powers and Privileges) Bill 1985 on 15 May 1985, the Chief Secretary said:[11]

“The primary purpose of the Bill is to make provision for the powers and privileges of the Legislative Council, its members and officers. Whilst the Bill will have the effect of granting powers, privileges and immunities to individual members personally, its objective is to enable members to discharge their functions properly, without fear or favour, and to uphold the dignity of the legislature.

…

Although the legislature of a Crown colony does not, by its mere establishment, acquire all these powers, privileges and immunities [enjoyed by Members of Parliament in Westminster], the existing body of law in Hong Kong (principally U.K. case law which applies in Hong Kong under the common law system) the Jury Ordinance and other administrative practices in fact confer all these powers and privileges on Members of this Council. In the Government’s view, however, it is desirable to enact legislation generally to codify such powers and privileges. There are several considerations supporting this view.

first, after 1997, any inherent powers and privileges derived from the present status of the Legislative Council as a colonial legislature would cease to have effect in Hong Kong. For example, the powers and privileges derived from case law have never been brought out in any ruling in Hong Kong and, if they are to be retained, they must be the subject of legislation at some stage;

second, to smooth the transition, the necessary legislation to codify these points should be completed earlier rather than later;

third, as Hong Kong moves towards representative government, the present system of consensus politics may come under some pressure. It would therefore be desirable specifically to provide for the rights of Members and for the powers and privileges through which the Legislative Council manages its business to be clearly understood;

fourth, if the Governor is to cease to be the President of the Legislative Council at some future date, it would be desirable for the new Presiding Officer, lacking the other proofs of authority which the Governor has, to have clear legal sanction to hand for the conduct of the Council’s business; and

fifth, decisions recently taken to hold meetings of the Finance Committee and the Public Accounts Committee in public make it timely for the position as regards the calling of witnesses and the hearing of evidence to be codified.

…”  

32.On 12 June 1985, LegCo resumed debate on the second reading of the Bill.  The convener of the ad hoc group formed to consider the Bill addressed the Council.  She referred to the need to enact an Ordinance for the subject matters, the aim of the Bill being to codify the existing common law and Parliamentary practice which would be extended or had already been extended to the Hong Kong legislature under the doctrine of inherent necessity, the five considerations previously mentioned by the Chief Secretary and then addressed various criticisms levelled against the Bill, including that the Bill was not a mere codification exercise but new offences had been created and new powers bestowed upon the Legislative Council.  She emphasized:[12]

“In fact in this Bill there has never been the intention or the wording to seek the power to prosecute or enforce its provisions by the Legislative Council. The real power rests in the hands of the Attorney General and the courts of law.”

33.In rounding up the debate, the Chief Secretary said:[13]

“…I think it is fair to point out that just as the provisions of the Bill are derived from the existing law, so the philosophy of the Bill reflects the philosophy of the law. And that law is parliamentary law. It is not the case that the Bill proposes to introduce parliamentary law in a situation where it is not already present. The essential point that must be emphasized is that parliamentary law is now being and has long been applied in Hong Kong in respect of this Council. I am advised and I accept that in the context of Hong Kong this Bill is a faithful reflection of that law and the existing situation: it does not introduce new law.”

The Chief Secretary then relevantly echoed the point made by the convener:

“The element of the Bill that is somewhat different from the classic traditions of parliamentary law is that instead of this Council claiming power to punish for breaches of privileges, that question is to be handed over to the courts. In other words the Bill makes the concession, and rightly so, that this Council should never act as judge in its own cause.”

34.The first point to note from the legislative deliberations is that the privileges and immunities to be conferred on LegCo by legislation are derived from those already in existence under the common law doctrine of inherent necessity.  The same doctrine of necessity should inform an exercise to define the scope of the privileges as a matter of statutory interpretation, as in the present.[14]

35.Both the Chief Secretary and the convener described the legislative exercise as codification.  Relying on their remarks, in particular, that of the Chief Secretary that the Bill did not create new law,[15] Ms Ng submitted that the LC(PP)O was a codifying statute.

36.By definition, codifying legislation collates and restates all the relevant statute and case law in a given area so as to become the complete statement of the law, in the form of a statute, in the area.  To a limited extent, the LC(PP)O is a codification.  As seen, the common law doctrine of inherent necessity applied to the pre-1997 LegCo. Insofar as the privileges and immunities were conferred by that doctrine, they are codified in the corresponding provisions in Part II.  They include the absolute privilege of section 3, which is modelled on article 9 of the English Bill of Rights 1689.  Further, section 4 of the ODO was replaced by the corresponding provisions in Part III.

37.However, the criminal offences in Part IV including those in connection evidence, such as refusing to give evidence, giving false evidence, interference or obstruction of witnesses, etc and disorderly conduct are not codifying provisions as such.  Those concern proceedings of witnesses might have been derived from section 4 of the ODO.  Prior to the enactment, there were no such criminal offences, whether in statute or at common law.  Only LegCo had the jurisdiction to punish persons guilty of such conduct.  As will be seen below, it was open to LegCo to relinquish the jurisdiction to the courts by enacting the provisions.[16] For other criminal offences, LegCo did not have the necessary penal jurisdiction.  The corresponding provisions including section 17(c) vested the courts, and not LegCo, with the jurisdiction to punish persons guilty of the same.

38.The Chief Secretary’s remark that the Bill did not introduce new law must be understood in context.  Properly understood, he was making the point that the powers and privileges to be created by the LC(PP)O were all derived from the existing law of parliamentary privilege, alleviating the concern that new powers and privileges were created especially for LegCo.  And as seen above, Parliament’s power to discipline its own members and further, power to punish anyone, whether a member or not, for behaviour interfering substantially with the proper conduct of parliamentary business falls with its exclusive cognisance.[17] Thus the criminal provisions in Part IV are all derived from the existing law of parliamentary privilege with the necessary modification, if any, to suit the local circumstances.

39.Finally, nothing in the legislative process suggests that section 17(c) was intended to apply to proceedings of taking evidence or to non-members only, as Ms Ng has contended.

E5.    A statutory framework for a secure and dignified environment

40.Like any other legislature, LegCo can only properly discharge its constitutional functions as legislature of Hong Kong, free from outside interference, in an environment which is secure, dignified and conducive to the orderly and effective conduct of its business without disruption or disturbance while permitting members of the public to observe its proceedings as an open process.  The LC(PP)O clearly aims at securing such a statutory framework for LegCo: see HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, per Ribeiro PJ at [82].

41.Thus as the long title of the LC(PP)O states, it aims:[18]

“To declare and define certain powers, privileges and immunities of the Legislative Council and of the members and officers thereof and of the Chief Executive and public officers designated by him in relation to attendance at sittings of the Legislative Council and committees thereof; to secure freedom of speech in the Legislative Council; to make provision for regulating admittance to and conduct within the precincts of the Chamber of the Legislative Council; to provide for the giving of evidence in proceedings before the Legislative Council or committees thereof, and for offences in respect of such proceedings and related matters; and for purposes incidental to or connected therewith.”

42.Protection of the core legislative and deliberative business in terms of free speech and debate in the Council and proceedings in a committee is conferred by sections 3 and 4.  Together with other privileges and immunities, they aim at enabling LegCo to carry out its functions independently and without outside interference.  The provisions regulating admittance, etc and for offences, including section 17(c) aim at maintaining the secure and dignified environment that LegCo needs to carry out its functions.

43.This main purpose of the LC(PP)O is also illustrated by the retention and continual application of the Standing Orders referred to at [26] above at the time of the enactment and after 1997, their replication in the RoP.[19] (The observations on the effect of the Standing Orders at [26] above are also true for the RoP.)  They set a standard of orderly behavior for both members and non-members that is congruent with LegCo’s constitutional and social importance so that it may perform its functions orderly and effectively without interference and disruptions.

44.This main purpose of the LC(PP)O must inform the interpretation of sections 3 and 17(c).

E6.    General propositions relevant to interpretation

45.The following general propositions germane to the privileges and immunities of LegCo also inform the interpretative exercise at hand.

46.First, the privileges and immunities are deeply rooted in the doctrine of separation of powers to enable LegCo to function properly, efficiently and without interference or disruptions.  This is well borne out in the judgment of the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 1), supra.

47.There, the main issue was having regard to the Basic Law and the RoP, under what circumstances could a decision of the President of LegCo made during the legislative process be judicially reviewed. The Court of Final Appeal held that (1) article 73(1) of the Basic Law does not confer on a LegCo member a constitutional right to participate in its legislative process by speaking because the purpose of article 73 is to confer the powers and functions on LegCo as a law-making body but not on its individual members; and (2) the President of LegCo had power to set limits to and terminate a debate, which power was inherent in or incidental to his power under article 72(1) of the Basic Law to preside over meetings, quite apart from rule 92 of the RoP, so that it was not for the court to consider whether or not the power was properly exercised nor whether the impugned decision constituted an unauthorized making of a rule or procedure.

48.Relevantly for present purpose, the Court of Final Appeal at [26] – [43] expounded the general principles governing the independence and autonomy of LegCo and its relationship with the courts:

(1)  While the relevant common law principles have their origin in the power, privileges and characteristics of the Parliament, in particular the House of Commons in the UK, and in the recognition by the courts of the exclusive authority of the Parliament to determine its own internal procedures, the preferable view is to regard the relationship between a legislature and the courts as an outcome of the application of the doctrine of separation of powers.  This common law doctrine is constitutionally enshrined in the Basic Law.[20]

(2)  The established relationship between the legislature and the courts includes the principles that the courts will recognize the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, in particular its legislative processes.  The corollary is the proposition that the courts will not intervene to rule on the regularity or irregularity of the internal processes of the legislature but will leave it to determine exclusively for itself matters of this kind.  This is referred to as the non-intervention principle.[21] The non-intervention principle is subject to constitutional requirements.[22]

(3)  The important responsibilities of LegCo, notably its law-making function, require that it should be left to manage and resolve its own internal affairs, free from intervention by the courts and from the possible disruption, delays and uncertainties which could result from such intervention.  Freedom from these problems is both desirable and necessary in the interests of orderly, efficient and fair disposition of LegCo’s business.[23]

49.Second, the non-intervention principle identified by the Court of Final Appeal is necessarily subject to constitutional requirements: Leung Kwok Hung v President of the Legislative Council (No 1), supra, at [32].  See also Chief Executive of the HKSAR v President of the Legislative Council [2017] 1 HKLRD 460 (CA), at [22]-[25], [71] and [86]-[87]; Yau Wai Ching v Chief Executive of the HKSAR (2017) 20 HKCFAR 390, at [17]-[24].

50.Third, the purpose of conferring the privileges and immunities on LegCo members is not to put them above the law. They just ensure that LegCo members can carry out their role and perform their functions as legislators without fear of any outside interference such as executive action or proceedings in the courts.  See Lord Browne-Wilkinson’s speech in Pepper v Hart [1993] AC 593, at p.638D-F; and Prebble v Television New Zealand Ltd [1995] 1 AC 321, at p.334A-C.  LegCo members need such protections to enable them to engage in robust debates on the policy addresses of the Chief Executive or the work or policy of the Government, to critically examine the budgets introduced by the Government or public expenditure, to canvass issues of public interests, to freely raise or even pursue points that may be unpalatable to the Government without fear of reprisal by means of legal proceedings.

51.Fourth, following on from the third proposition, since the whole purpose of conferring the privileges and immunities is to enable LegCo members to perform their functions as legislators without fear or interference, they are not immune from civil or criminal proceedings merely by reason of their status.  Thus they would enjoy no immunity if charged with ordinary criminal offences which are not connected with their legislative functions.  See Bradlaugh v Gossett (1884) 12 QBD 271, per Stephen J at p.283.  This covers such criminal offences as an assault in the corridors of the legislature, theft of another member’s money, or a sexual offence, none of which related to legislative activity or proceedings in the legislature.  See Chaytor, supra, the first instance judge’s observations referred to by Lord Phillips at [18] and [25].

52.In Chaytor, the issue was whether matters concerning claims by some members of the UK Parliament for parliamentary expenses could form the subject of criminal prosecutions.  Lord Phillips explained at [48] that the issue rested on whether scrutinizing the expenses in criminal proceedings would have an adverse impact on the core or essential business of Parliament and whether it would inhibit debate or freedom of speech.  He concluded that such scrutiny would not inhibit any of the varied activities in which Members of Parliament indulge that bear in one way or another on their parliamentary duties.  The only thing that it would inhibit would be the making of dishonest claims.

53.Fifth, the courts will determine whether the legislature has a particular power, privilege or immunity by the test of necessity, that is, whether it is necessary to the legislature’s capacity to function as a legislative body:  New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), supra,McLachlin J at p.383d-f; Leung Kwok Hung v President of the Legislative Council (No 1), supra, at [39]-[43].  This tallies with the same view arrived at as a matter of interpretation at [34] above.  The test of necessity can also be formulated thus: does the claimed privilege or immunity go to the “core or essential business” of the legislature: see Chaytor, per Lord Phillips at [47].

54.In drawing the contour of the privilege and immunity, the courts must firmly bear in mind the doctrine of separation of powers, the underlying rationale why privilege and immunity are conferred and the test of necessity.  The boundary the courts draw should not be too narrow, lest it would unduly restrict legislators in performing their functions by placing them at the mercy of legal proceedings by others including the executive.  Nor should it be too wide either, lest it would easily allow legislators’ wrongful or even criminal conduct to go unchecked and undeterred.

E7.    Defining the boundary of section 3

55.As said, section 3 of the LC(PP)O is modelled on article 9 of the English Bill of Rights (1689).  The freedom of speech denotes the freedom that LegCo members have to discuss what they will; the freedom of speech concerns their freedom to say what they will: Pepper v Hart, supra, per Lord Browne-Wilkinson at p.638D-E.  In Chaytor, Lord Philips at [61] emphasized that the protection of article 9 is absolute and cannot be waived.  The same must be true for the privilege of section 3. However, it still remains for the court to determine whether the disorderly conduct of a LegCo member if caught by section 17(c) falls within the privilege as a matter of statutory interpretation by reference to the main purpose of the LC(PP)O and the propositions above.  So interpreted, it is clear from the reasons given below that the privilege of section 3 does not extend to the disorderly conduct of a LegCo member if caught by section 17(c), as contended by Ms Ng.

56.It is well established that the freedom of expression, part and parcel of the freedom of speech, embraces as one of its dimensions the manner in which the individual concerned wishes to express his views: HKSAR v Fong Kwok Shan Christine, supra, per Ribeiro PJ at [42]. This is a point taken by Ms Ng and not disputed by Mr David Leung SC, DPP, appearing for the Secretary for Justice.[24] However, it does not follow that there is no restriction whatsoever on the manner in which one wishes to express his views.

57.On a general level, in HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, at [38]-[43], Ribeiro PJ in dealing with article 17 of the Hong Kong Bill of Rights, which concerns peaceful demonstration where full rein is given to freedom of expression, emphasized that conduct which disrupts or threatens to disrupt public order, as well as conduct which infringes the rights and freedoms of others, are not permissible.

58.Fong Kwok Shan Christine, supra, concerned a more relevant scenario.  It involved the disorderly conduct of a member of the public in the public gallery above a conference room where a subcommittee of LegCo held meetings.  The defendant was convicted of an offence of contravening an administration instruction of LegCo, contrary to section 20(b) of the LC(PP)O regulating the admittance of the public in LegCo which required persons admitted to behave in an orderly manner (AI s.12).  One of the issues was whether AI s.12 was unconstitutional in that it created an unlawful restriction on the right to freedom of expression guaranteed under article 16 of the Hong Kong Bill of Rights.  The Court of Final Appeal held that the restriction satisfied the proportionality analysis: per Ribeiro PJ at [111]-[117].  Ribeiro PJ emphasised that the freedom of expression must not be exercised in a way which interferes with LegCo proceedings or infringes others’ rights.  The restriction of AI s.12 targets intrusive behaviour to protect the good order during a LegCo meeting.  It is reasonable and proportionate.

59.Turning to the manner in which a LegCo member purports to exercise the freedom of speech and debate under section 3, it is axiomatic to ask why the absolute privilege is conferred in the first place within the statutory framework of the LC(PP)O.  Plainly, it enables LegCo members to perform their functions as legislators without external interference or fear of reprisal by legal proceedings for the purpose of furthering the constitutional objects and functions of LegCo within the statutory framework of the LC(PP)O.  The privilege must not be exercised in a way which is contrary to or inconsistent with or even defeats the main purpose of LC(PP)O in creating and maintaining a secure and dignified environment that LegCo needs to conduct its business orderly and effectively.  Equally important, the privilege must not be exercised in a way which infringes the same privilege other LegCo members need in order to perform their functions as legislators.  It follows that the privilege must not be exercised in a so disruptive manner that it is caught by the impugned conduct of section 17(c).  For it cannot possibly be the legislative intent to confer the privilege of section 3 to allow a LegCo member to cause or join a disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee, thereby disrupting the business of the Council or the committee and infringing the freedom of speech and debate of other LegCo members.

60.Approaching it by reference to the doctrine of necessity, one asks: is it inherently necessary for the proper functions of LegCo to give its member, as part of the privilege of section 3, the freedom to disorderly conduct themselves within the meaning of section 17(c), thereby disrupting LegCo’s business or infringing other members’ freedom of speech and debate?  The answer must be a resounding “No”.  Or does the protection for such disorderly conduct go to the core or essential business of LegCo? Again, the answer must be a definite “No”.

61.Ms Ng submitted that once the manner of speech is covered by the freedom of speech, then a LegCo member can exercise that freedom in whatever manner he wishes.  She even went so far as submitting that it covers the impugned conduct caught by section 17(c).  With respect, Ms Ng’s submissions turn the privilege of section 3 and its application in the statutory framework of the LC(PP)O on its own head.  For reasons stated above, they must be firmly rejected.

62.Ms Ng next submitted that if a member’s manner of speech is not covered by the privilege of section 3, it will instill a chilling effect.  In the case where a member’s disorderly conduct is caught by section 17(c), Ms Ng’s submission is premised on the assumption that unless he is entitled to so conduct himself, he cannot meaningfully exercise his freedom of speech and debate.  This assumption is wholly unmeritorious and must be rejected.  The boundary of the privilege of section 3 drawn above only aims at prohibiting a member from frustrating the very purpose of the privilege being granted for the furtherance of the functions of LegCo and from infringing other members’ same privilege, and no more.  It does not inhibit any member from exercising their freedom of speech and debate in any manner other than that caught by section 17(c).  Subject to constitutional requirements, he is still entitled to exercise his freedom of speech and debate within the boundary of the absolute privilege freely in the proceedings of the Council or a committee.

63.Ms Ng also prayed in aid the non-intervention principle.  She argued that how to deal with a member’s disorderly conduct falls within the internal affairs of LegCo.  And LegCo has sufficient disciplinary powers to deal with him, including those set out in the RoP and in extreme case, to disqualify him for the office under article 79(7) of the Basic Law.  Further, section 17(c) is not an ordinary criminal offence. In the circumstances, the courts should leave it to the exclusive jurisdiction of LegCo to deal with member whose conduct is caught by section 17(c) and should not interfere.  With respect, Ms Ng’s reliance on the non-intervention principle is misplaced.

64.Ms Ng relied on the very often quoted dicta of Lord Coleridge CJ in Bradlaugh v Gossett, supra, at p.275: “What is said or done within the walls of Parliament cannot be inquired into in a court of law … the jurisdiction of the Houses over their own members, their right to impose discipline within their walls is absolute and exclusive.” However, in Chaytor, supra, Lord Phillips at [30] pointed out that this statement of non-intervention did not distinguish the narrow privilege under article 9 (which is absolute and cannot be waived) and the broader exclusive cognisance of Parliament (which is capable of waiver by Parliament).  (He then went to point out parliamentary privilege, even that conferred by article 9, did not preclude a criminal prosecution in respect of a conduct of a member merely because it had taken place within the House of Commons.)  Likewise, Ms Ng also did not draw a distinction between the absolute privilege under section 3 and matters falling within the exclusive cognisance of LegCo.  The former is absolute and not open to be questioned in the court.  However, depending on the circumstances, the situation regarding matters falling within the exclusive cognisance of LegCo may be different.

65.Section 17(c) is derived from the English law on parliamentary privilege concerning contempt of Parliament.  The English experience shows that Parliament, if so decided, could relinquish the penal jurisdiction to the courts without offending the non-intervention principle.

66.As already noted, the Parliament’s right to regulate its own affairs includes the power to discipline its own members for misconduct and, further, power to punish anyone, whether a member or not, for behavior interfering substantially with the proper conduct of parliamentary business.  The disciplinary power to deal with contempt of Parliament falls within the penal jurisdiction exercised by each House to ensure that it can carry out its constitutional functions properly and that its members are not obstructed or impeded.  To date, the English Parliament still retains its penal jurisdiction: Erskine May, at §11.19.

67.Matters falling within its exclusive cognisance can be waived or relinquished by Parliament by, say, primary legislation: Chaytor, per Lord Philips at [63]-[68].  In 1999, the Joint Committee on Parliamentary Privilege recommended that “for practical reasons punishment of non-members for contempt of Parliament should, in general, now be transferred to the courts”, although each House’s residual jurisdiction should remain.  This recommendation was not implemented.  In 2013, the recommendation was rejected by a subsequent Joint Committee on Parliamentary Privilege, which considered that criminalizing specific contempts “would entail a radical shift of power between Parliament and the courts”, as well as introducing delay and uncertainty, and removing flexibility.  Instead, the 2013 Joint Committee recommended that the two Houses should assert their continuing penal powers, and clarify the procedures they would use if called upon to exercise them to ensure fairness.  See Erskine May, at §11.22.  Although the recommendation only concerned the penal jurisdiction in respect of non-members, the same must be true for that over members.

68.This episode demonstrates beyond doubt that the English Parliament’s penal jurisdiction to punish for contempt falls within its exclusive cognisance and is capable of being relinquished to the courts.  Indeed, the 2013 Joint Committee in its Report at [64] noted:

“As the Green Paper suggests, there are several possible approaches to legislation to ensure that contempts could be punished. … These approaches would transfer jurisdiction to the courts. As Lord Justice Beatson noted, Parliament would in effect give up some of its privileges: ‘You either give up a little bit of your exclusive cognisance and you get enforcement, or you stay pure and are faced with the difficulty that you so vividly put about how on earth you are going to enforce it’”. (Emphasis supplied)

69.Further, it would appear that the 2013 Joint Committee’s recommendation to implement procedural rules to ensure fairness should Parliament exercise its penal jurisdiction sought to alleviate the doubt if Parliament is in a position to satisfy all the requirements of fairness in criminal proceedings under article 6 of the European Convention on Human Rights: see Chaytor, per Lord Phillips at [61], referring to Demicoli v Malta (1991) 14 HER 47.

70.So even in England, the non-intervention principle does not prevent Parliament, if it so decided, to relinquish its exclusive penal jurisdiction by way of primary legislation to the courts for disorderly conduct committed by members or non-members.

71.Coming back to Hong Kong, as noted, before 1997, LegCo did not have penal jurisdiction to deal with contempt of legislature generally, whether committed by members or not.  It is clear from the legislative process of the LC(PP)O that it was considered necessary to give LegCo additional safeguards to maintain its order and discipline.  The protective disciplinary powers to deal with contempt of legislature were not sufficient.  New criminal sanctions in Part IV to punish for contempt of legislature were created.  Had LegCo so decided, it might have been open to LegCo to confer the penal jurisdiction on itself, just like the case of section 4(1) of the ODO.  However, for reasons articulated in the legislative deliberations, LegCo decided to vest the penal jurisdiction with the courts.  LegCo had thereby made a deliberate and informed decision to relax the non-intervention principle by relinquishing to the courts the penal jurisdiction it could have claimed over matters concerning contempt of legislature which falls within the rubric of its exclusive cognisance.  Insofar far as it concerns a member whose conduct is caught by section 17(c), LegCo retains its full exclusive jurisdiction to discipline him.  As an additional safeguard to maintain its order and discipline, LegCo gives the courts the criminal jurisdiction to penalize him should a prosecution be brought under section 17(c).

72.By virtue of the criminal offences in Part IV, both LegCo and the courts have different, overlapping, jurisdiction over contempt of legislature.  LegCo can take disciplinary proceedings against the person guilty of such contempt; the courts can try him for the crime.  That being the case, careful consideration must be given to if see a prosecution is warranted for a particular case.  For example, if LegCo has already commenced disciplinary proceedings against an offending member, careful consideration should be given to as to whether a prosecution is in the public interest. Accordingly, section 26 of the LC(PP)O provides that no prosecution for an offence under the Ordinance shall be instituted except with the consent of the Secretary for Justice.  The Secretary must consider if it is in the public interest to bring the prosecution: see Chaytor, per Lord Phillips at [81].

73.Thus analysed, contrary to Ms Ng’s submission, the non-intervention principle does not prevent LegCo from conferring the criminal jurisdiction to the courts over a member whose conduct is caught by section 17(c).

E8.    Interpreting section 17(c)

74.Having drawn the proper boundary of the privilege of section 3, the interpretation of section 17(c) can be shortly disposed of.

75.Read in the context of the LC(PP)O as a statutory framework to provide a secure and dignified environment for LegCo to perform its functions and conduct its business orderly and effectively, section 17(c) clearly aims at protecting the order and discipline of all the proceedings in the Council or a committee from any person whose conduct is caught by the provision, whether he is a member or not.

76.Harking back to her contention that the LC(PP)O is a codifying statue, Ms Ng submitted that it could not have created any new offence against a LegCo member under section 17(c) when LegCo did not previously have such penal jurisdiction.  For reasons set out above, insofar as criminal offences are concerned, the LC(PP)O is not a codifying statute.  The new criminal offences, including section 17(c), were created to give LegCo further safeguards to maintain its order and discipline.

77.The wording used in section 17(c) is “any person”.  Contrary to Ms Ng’s submission, it must mean anyone including a LegCo member.  It is the natural and ordinary meaning of the wording used.  If the legislative intent were to exclude a member, it would have used the same formula in section 20: “any person, other than a member … of the Council”.[25]  Most importantly, for reasons set out above, the legislative intent is clearly to include a member.  Excluding a member from its application would have the consequences of defeating the main purpose of the LC(PP)O and infringing other members’ exercise of their privileges and immunities in performance of their functions.

78.Ms Ng referred to the wording used in section 4(1) of the ODO and argued that the ambit for punishment of contempt was limited to proceedings of taking evidence.  Since section 17(c) seeks to incorporate section 4 of ODO, it is also limited to proceedings of taking evidence only.  Her submission is again based on the untenable contention that section 17(c) is a codifying or consolidating provision.  More importantly, section 17(c) must cover all proceedings in order to achieve the aim of the statutory framework of the LC(PP)O by protecting the order and discipline of the proceedings of the Council and its committee.  It cannot be limited to proceedings for taking evidence under oath or indeed any type of proceedings.

79.On a proper interpretation, section 17(c) applies to a LegCo member.

E9.    Constitutionality of section 17(c)

80.The remaining question is whether section 17(c) is unconstitutional.  The only argument advanced by Ms Ng in this regard is that if it applies to a LegCo member, section 17(c) allows the court to interfere with the internal affairs of LegCo, thereby infringing the constitutional doctrine of separation of powers.

81.Ms Ng’s argument is in substance the same as her submission on the non-intervention principle, which has already been rejected.  More fundamentally, under the constitutional framework of the Basic Law, only the courts have judicial powers.  LegCo is never vested with any judicial power.  Since penal jurisdiction is judicial, it always belongs to the courts exclusively.  It is exactly because of the doctrine of separation of powers that section 17(c) must vest the penal jurisdiction with the courts and not anybody else, including LegCo.   LegCo’s decision to relax the non-intervention principle as explained above conforms entirely with that doctrine.

82.Section 17(c) does not offend the doctrine of separation of powers.  It is constitutional.

F.    Answering the questions of law

83.In consequence, the answers to the questions of law are:

(1)  Question 1: the Magistrate erred in finding that the privilege of section 3 covers the disorderly conduct of a LegCo member if caught by section 17(c);

(2)  Question 2(a): No;

(3)  Question 2(b): Yes; and

(4)  Question 3: No.

84.The case is remitted to the Magistrate and she is directed to restore the proceedings and proceed with the remainder of the trial until conclusion in accordance with the judgment of the court.

Lam VP:

85.I respectfully agree with the judgment of the Chief Judge and have nothing to add.

Pang JA:

86.I respectfully agree with the judgment of the Chief Judge.

Ms Vinci Lam, DDPP, leading Mr Anthony Leung, SPP, of the Department of Justice for the Appellant for the hearing on 1 August 2019

Mr David Leung SC, DPP, of the Department of Justice, for the Appellant for the hearing on 12 May 2020

Ms Margaret Ng leading Mr Carter Chim and Mr Jason Lee instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the Respondent