Secretary for Justice v. Leung Kwok Hung

HCMA 520/2018

[2020] HKCA 758

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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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

A.  Introduction

1.The respondent, a former member of the Legislative Council (“LegCo”), faced a charge of contempt, contrary to section 17(c) of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (“LC(PP)O”).  On 5 March 2018, after a preliminary hearing, Acting Principal Magistrate Ms Ada Yim (as she then was) (“the Magistrate”) gave a ruling (in favour of the respondent) that LC(PP)O section 17(c) was not applicable to LegCo members and adjourned the proceedings sine die.  The appellant appealed the ruling by way of case stated.  By a judgment handed down on 2 June 2020 ([2020] HKCA 424), this Court, having answered questions of law raised in the case stated, remitted the case back to the Magistrate and directed her to restore the proceedings and proceed with the remainder of the trial until conclusion.

2.By a Notice of Motion dated 17 June 2020, the respondent applied for a certification under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that points of law of great and general importance are involved in our judgment, so as to enable him to appeal to the Court of Final Appeal.  This application is made out of time[1].  Ms Margaret Ng (together with Mr Carter Chim and Mr Jason Lee), for the respondent, explained that the delay was due to an oversight.  Mr David Leung SC (together with Ms Vinci Lam), for the appellant, is prepared not to object on the ground of delay should the application be meritorious, which, he submitted, is not.

B.  Points of law

3.The points of law that the respondent seeks to raise are framed by Ms Ng in her written submissions as follows:[2]

“(1)  Having regard to the common law doctrine of parliamentary privilege, the doctrine of separation of powers as enshrined in the Basic Law and the non-intervention principle as decided in Leung Kwok Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR 689:

(a)  Whether [the LegCo]has exclusive jurisdiction over the conduct of members of LegCo in the proceedings of LegCo and its committees, immune from the intervention of the Courts;

(b)  In that regard, whether the Court of Appeal was correct in holding that it was open to LegCo to relinquish to and/ or confer upon the Courts a penal jurisdiction over the conduct and discipline of members of LegCo during the proceedings of LegCo and its committees.

(2)  Upon the true interpretation of section 17(c) of the [LC(PP)O]:

(a)  Whether section 17(c) applies to a member of LegCo;

(b)  Whether ‘proceedings’ in section 17(c) is confined to proceedings involving the taking of evidence under oath.

(3)  Whether the Court of Appeal was correct in holding that the absolute freedom of speech and debate of LegCo under section 3 of the [LC(PP)O] does not extend to conduct caught by section 17(c) of the [LC(PP)O].

(4)  Whether the Court of Appeal was correct in holding that LegCo had, by enacting section 17(c) of the [LC(PP)O], in fact relinquished to and/or conferred upon the Courts a penal jurisdiction over the conduct and discipline of members of LegCo during the proceedings of LegCo and its committees.

(5)  Whether the Court of Appeal was correct in holding that section 17(c) of the [LC(PP)O] as applicable to a member of LegCo is not unconstitutional and not inconsistent with the doctrine of separation of powers as enshrined in the Basic Law and the non-intervention principle as decided in Leung Kwok Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR 689.”

C.      The parties’ submissions

C1.    The respondent’s submissions

4.In her written submission, Ms Ng did not differentiate her arguments in respect of the above questions.  Relying on the constitutional doctrine of separation of powers and the principle of non-intervention, she submitted that, apart from ordinary crime, the conduct of a LegCo member in LegCo’s proceedings is by necessity a matter of privilege and subject only to regulation by LegCo itself. 

5.Ms Ng further submitted that the privilege of freedom of speech and debate in LegCo proceedings, protected by section 3 of the LC(PP)O, is absolute and cannot be waived by LegCo; and that, even if this freedom is exercised in a disorderly manner, the occasion or manner of exercising the privilege cannot be subjected to section 17(c) of the LC(PP)O, citing Leung Kwok Hung v President of the Legislative Council (No. 1) (2014) 17 HKCFAR 689 in support.

6.In applying the necessity test to determine the scope of the privilege, Ms Ng submitted that the questions to be asked are: (i) whether it is necessary for members to exercise freedom of speech in any manner he sees fit subject only to LegCo’s own rules; and (ii) whether it is necessary for the Court to intervene in a member’s conduct in LegCo internal processes.  Ms Ng submitted that the answer to (i) is yes and (ii) is no.

7.Ms Ng then submitted that LegCo is not competent to waive any privilege, since all the privileges it enjoys are by definition necessary for carrying out its functions.  A proposal for the UK Parliament to transfer to the courts its jurisdiction to punish non-members for contempt could not support the proposition that jurisdiction over members could be transferred, since members are covered by privilege but non-members are not.  She submitted that, since LegCo already has sufficient disciplinary power to deal with members’ disorderly conduct, it is desirable and necessary to leave LegCo to manage and resolve its own internal affairs free from intervention of the Courts.

8.On the application of section 17(c) of the LC(PP)O, Ms Ng submitted that it is intended to take the place of section 4 of the Oaths and Declarations Ordinance (now repealed), and so it only has the effect of punishing non-members for contempt in relation to giving evidence in LegCo proceedings.  It is not generally applicable to other proceedings and not applicable to members.

C2.    The appellant’s submissions

9.Mr Leung accepted that the privilege of freedom of speech in LegCo proceedings (LC(PP)O section 3) is absolute. However, he submitted that it nevertheless has a boundary; and the Court has the jurisdiction to determine whether a privilege exists and to determine its boundary. 

10.Mr Leung submitted that, in applying the necessity test, the proper question to ask is (as this Court has asked): whether freedom to commit disorderly conduct within the meaning of section 17(c) was necessary for LegCo members to carry out their functions.  He submitted that the Court correctly gave a negative answer.

11.Referring to R v Chaytor [2011] 1 AC 684 and the 2013 Report of the Joint Committee on Parliamentary Privilege in the UK, Mr Leung submitted that exclusive cognisance of the legislature (including the penal jurisdiction on both members and non-members) can be relinquished by way of primary legislation to the courts.  In any event, since it was held that conduct with the meaning of section 17(c) of the LC(PP)O did not fall within the privilege of section 3, the issue of waiver (or relinquishing) of any privilege did not arise.

12.Referring to HKSAR v Fong Kwok Shan Christine(2017) 20 HKCFAR 425, Mr Leung submitted that it is competent for the legislature to enact legislation aimed at creating a secure and dignified environment for its proceedings to be conducted without disruption or disturbance, by criminalising contempt of the legislature and imposing criminal sanctions for contemptuous conduct.  He submitted that, although LegCo has its own power to sanction members for misconduct, it does not prevent and does not bar criminalizing such misconduct through legislation; and that the Court was correct to hold that section 17(c) applies to members and covers all proceedings and is not limited to proceedings for taking evidence.

D. Discussion

13.We preface our discussion with this general observation.  In substance, Ms Ng merely repeated her submissions advanced before us at the appeal which had all been rejected.  Ms Ng has not satisfied us that we had erred in doing so.  In discussing her arguments raised in this application, what we are going to say below is essentially a summary of the reasons we set out in our judgment.

D1.    Questions (1)(a) and (b)

14.As we have pointed out, matters concerning contempt of the legislature falls within its exclusive cognisance.  However, the legislature could by legislation relinquish to the courts the penal jurisdiction falling within its exclusive recognisance in respect of contempt over both members and non-members.  This is clearly reflected in the UK in the reports of the Joint Committee on Parliamentary Privilege in 1999 and 2013; and in R v Chaytor, supra.  An example of such legislation can be seen in the criminal offences created in Part IV of the LC(PP)O.  Disorderly conduct by members is therefore subject to intervention of the courts where this is provided for by legislation.  Whether this is the effect of a given provision is a matter for statutory interpretation by the courts, but it is clearly open to LegCo to so legislate.  Both questions (1)(a) and (b) are not reasonably arguable.

D2.    Questions (2)(a) and (b)

15.Again, as we have pointed out, the purpose of the LC(PP)O is to provide for a secure and dignified environment for LegCo proceedings: HKSAR v Fong Kwok Shan Christine, supra.  This purpose must inform the interpretation of section 17(c) of the LC(PP)O.  In submitting that section 17(c) does not apply to members, Ms Ng’s reasons are based, on the one hand, on the constitutional doctrine of separation of powers and the principle of non-intervention; and on the other hand, the privilege of freedom of speech and debate in LegCo proceedings as protected by section 3 of the LC(PP)O.

16.However, as we have already explained, LegCo is not prevented from conferring the criminal jurisdiction to the courts over a member whose conduct is caught by section 17(c).  Properly construed, this is the effect of section 17(c) of the LC(PP)O.  LegCo retains its full exclusive jurisdiction to discipline a member whose conduct falls within section 17(c) of the LC(PP)O.  As an additional safeguard, LegCo gives the courts criminal jurisdiction to penalize such a member should a prosecution be brought under section 17(c), with the consent of the Secretary for Justice.

17.The interplay between sections 3 and 17(c) of the LC(PP)O is a matter of statutory interpretation, bearing in mind the applicable constitutional principles and the principles of statutory interpretation. Accepting the privilege protected by section 3 is absolute, it 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.

18.Even the freedom of speech embraces the manner of its exercise, it does not mean that there is no restriction whatsoever on the way a LegCo member wishes to express his view.  By virtue of the limited scope of privilege for LegCo member under the common law as discussed in our judgment, the scope is circumscribed by the necessity test.  In determining the scope of the privilege conferred by section 3 of the LC(PP)O, the necessity test is to be applied by asking: is it inherently necessary, for LegCo to function properly, to give its member, as part of the privilege of section 3, the freedom to conduct themselves in a disorderly manner within the meaning of section 17(c).  The answer must be in the negative.  Therefore, section 3 should not be construed as affording members protection if their conduct contravenes section 17(c).

19.If section 17(c) of the LC(PP)O is only meant to apply to non-members, LegCo would have stated it clearly as it has in section 20 (which explicitly excludes members or officers of LegCo from its application)[3].  In the light of the purpose of LC(PP)O, section 17(c) clearly is applicable to members, as a safeguard additional to LegCo’s own internal disciplinary powers.

20.Ms Ng’s argument that section 17(c) is only intended to have effect in proceedings for giving evidence in LegCo is based on her submission that LC(PP)O is a codifying statute.  But it is clear that, insofar as criminal offences are concerned, the LC(PP)O is not a codifying statute as it created new offences.  Section 17(c) clearly must cover all proceedings in order to achieve the statute’s purpose of providing a secure and dignified environment for LegCo proceedings.

21.Questions (2)(a) and (b) are not reasonably arguable.

D3.    Question (3)

22.For reasons set out above, the absolute freedom of speech and debate in LegCo proceedings as protected by section 3 of the LC(PP)O does not afford protection to conduct falling within section 17(c).  Question (3) is not reasonably arguable.

D4.    Question (4)

23.For reasons set out above, by enacting section 17(c) of the LC(PP)O, LegCo had conferred the penal jurisdiction on the courts over conduct by members falling within its meaning.  Question (4) is not reasonably arguable.

D5.    Question (5)

24.The doctrine of separation of powers and the non-intervention principle do not prevent LegCo from conferring the criminal jurisdiction to the courts over a member whose conduct is caught by section 17(1) of the LC(PP)O. Properly construed, bearing in mind these constitutional doctrine and principle, section 17(c) is applicable to a member of LegCo and is clearly constitutional.  Question 5 is not reasonably arguable.

E.  Conclusion

25.Although the points of law raised may be said to be involving fundamental constitutional doctrine and principle, none of them is reasonably arguable.  Ms Ng’s arguments which are mere repetition of what had been already rejected in our judgment, do not alter the position a bit.  As the questions sought to be certified are not reasonably arguable, we refuse the application and dismiss the Notice of Motion.

Mr David Leung SC, DPP, Ms Vinci Lam, DDPP and Mr Anthony Leung, SPP, of the Department of Justice for the Appellant

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