Kwok Cheuk Kin v. Secretary for Justice
Read the full judgment text of CACV 8/2019 on BabelCite. This Court of Appeal judgment was delivered on 11 June 2021.
1. These appeals, arising from the judgment of Chow J in [2018] HKCFI 2657 , concern the constitutionality of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance, Cap 632 (“the Ordinance”). [1]
Cites 18 cases
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CACV 8/2019 [2021] HKCA 871 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 8 OF 2019 (ON APPEAL FROM HCAL NO. 1165 OF 2018)
AND IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 10 OF 2019 (ON APPEAL FROM HCAL NO. 1178 OF 2018) ________________________
AND IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 87 OF 2019 (ON APPEAL FROM HCAL NO. 1160 OF 2018) ________________________
AND IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 88 OF 2019 (ON APPEAL FROM HCAL NO. 1164 OF 2018) ________________________
________________________ (Heard together)
________________________ JUDGMENT ________________________ Hon Poon CJHC (giving the judgment of the Court): A. Core Issue 1.These appeals, arising from the judgment of Chow J in [2018] HKCFI 2657, concern the constitutionality of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance, Cap 632 (“the Ordinance”).[1] 2.In resolving the constitutionality issue, the Judge identified the determining question as: “whether, upon a fair reading of the Basic Law and having regard to its context and purpose, it is intended that the Co-location Arrangement as embodied in the Ordinance … be prohibited or excluded.”[2] Mr Ernest Ng and Mr Martin Lee SC, for the respective applicants in CACV 8/2019 and CACV 10/2019,[3] contended, as one of their grounds of appeal, that the Judge had asked the wrong question and had thereby misdirected himself. While such a ground of appeal did not feature in CACV 88/2019, Mr Hectar Pun SC for that applicant[4] took a similar point in his written submissions. Counsel then put forward what they considered to be the correct questions. We do not intend to dwell on them or the related submissions. In our view, they differ from the Judge’s question only in emphasis and nuance but not in substance. For present purposes, we adopt the language of article 11(2) of the Basic Law[5] and, having regard to the parties’ submissions, formulate the core issue before us as follows:
B. Background facts 3.To put the discussion of the core issue in proper perspective, it is necessary to set out the uncontroverted background facts in greater detail. B1. High-speed rail 4.First commercially introduced in Japan in 1964, high-speed rail is now widely recognized around the world as a highly efficient, convenient, speedy, reliable and more environmental-friendly mode of mass transportation well suited for intercity travel. Recent years have witnessed not only its dynamic growth but also its immense impacts on modern living and development of society. Because of its substantial carrying capacity and speediness, high-speed rail has helped foster a new mode of living called a “24-hour living circle” whereby people can conveniently commute between cities along the route within a day with ease. High-speed rail has also engendered enormous social benefits. In greatly enhancing the communication and mobility of population among cities and across regions covered by its network, high-speed rail facilitates intercity and even inter-region commercial activities and the flow and provision of commercial and professional services, encourages social and cultural exchanges and promotes tourism. It has the great potential of raising the overall productivity of society.[7] 5.In the Mainland, construction of high-speed rails on a massive scale began in 1998 when the Guangzhou-Shenzhen intercity railway attained the speed of 200 km/h. The development since then has been remarkable. In 2016, that is shortly before the Mainland and Hong Kong reached the consensus on the framework for the Co-operation Arrangement,[8] the high-speed rail network in the Mainland had already surpassed 20,000 km in length, which was the longest globally, carrying over 1.44 billion passengers in that year alone. 6.In July 2016, the development of high-speed rail in the Mainland gained further momentum. The State Council approved the “Medium and Long-term Railway Network Plan”, proposing the construction of high-speed rail main lines based on the “Eight Verticals and Eight Horizontals” layout. The overall target was to increase the total length of high-speed rail network to 30,000 km in 2020, covering more than 80% of the major cities; and to 38,000 km by 2025, basically realizing by 2030 visions including “enhancing internal and external connectivity”, “enabling multiple inter-regional access”, “connecting provincial capitals by high-speed rail”, “enhancing accessibility of prefecture-level cities” and “providing basic high-speed rail network coverage to county areas”. The high-speed rail network in the Mainland has since developed and expanded rapidly. 7.It was against the backdrop outlined above that the Guangzhou-Shenzhen-Hong Kong Express Rail Link (“XRL”) came into existence. B2. XRL 8.As early as 2001, the Hong Kong Government, after undertaking a macro policy assessment of Hong Kong’s overall best interests, initiated discussion with the Mainland Government on the idea of establishing a high-speed rail link connecting Guangzhou, Shenzhen and Hong Kong. One main consideration was that as a regional transport hub, Hong Kong’s long-term development potential would be enhanced if connected to the national high-speed rail network. In the end, the XRL was duly constructed and the Hong Kong Section formally commenced operation on 22 September 2018. 9.The XRL is about 140 km long. The Hong Kong Section is a 26-km long underground railway system running from West Kowloon Station to the border at Huanggang. From Huanggang, the XRL continues into the Mainland and runs through a number of stations in Shenzhen before reaching Guangzhou South Station. From there, it connects to the Beijing-Guangzhou Passenger Line through Guangzhou, Changsha, Wuhan, Zhengzhou and Beijing;[9]and the Hangzhou-Fuzhou-Shenzhen Passenger Line running through various coastal cities including Shantou, Xiamen, Fuzhou and Hangzhou.[10] These Lines are respectively one of the “Eight Verticals” and one of the “Eight Horizontals” of the national high-speed network. XRL has greatly shortened the time required to travel from Hong Kong to major cities in the Mainland by rail. 10.Through interchanging with the Pearl River Delta Rapid Transit System at Guangzhou and Shenzhen as the hubs, the XRL also provides speedy rail services between Hong Kong and major cities in the Delta. 11.On the Hong Kong side, the West Kowloon Station is connected by footbridge to the Austin MTR Station on the West Rail Line and the Kowloon MTR Station on the Tung Chung Line/Airport Express, thereby serving as a transport-interchange hub linking the XRL with the local domestic railway network. Given its prime location, the West Kowloon Station also provides speedy access to the heart of the city’s business and tourist areas. B3. The Three-step process 12.Since the planning stage of the Hong Kong Section, the Hong Kong Government had been studying the co-location arrangement as the preferred mode for clearance procedures for the XRL. The Government considered that as a cross-boundary railway, efficient and time-saving clearance procedures were absolutely essential to realizing the full potential of the XRL in terms of speed and convenience. Under a co-location arrangement, passengers could complete clearance procedures of both Hong Kong and the Mainland at the West Kowloon Station in one go. Passengers departing from Hong Kong could go to all cities on the national high-speed rail network without having to undergo clearance procedures again in the Mainland. Passengers coming to Hong Kong could board trains at any stations of their choice on the national high-speed rail network and go through the Mainland departure clearance and the Hong Kong arrival clearance at the West Kowloon Station. They would not be constrained by whether a particular Mainland city has clearance facilities. On the other hand, if a separate-location arrangement were to be implemented, XRL passengers might only board or alight at a handful of Mainland stations equipped with clearance facilities. It would hamper the efficiency and flexibility offered by the XRL, thereby greatly undermining its benefits and rendering it to be just another intercity express rail without the advantage of easier access to cities throughout the country. The Hong Kong Government concluded that a co-location arrangement was critical to fully unleashing the transport, social and economic benefits of the XRL.[11] 13.In January 2017, after fully considering the latest patronage forecast and inconvenience to passengers, cost-effectiveness and uncertainties over the construction period for installing customs, immigration and quarantine facilities in the Mainland, both the Hong Kong Government and the Mainland authorities decided not to further explore the option of separate-location arrangement and concluded that co-location arrangement at the West Kowloon Station was the only feasible solution for the XRL. Both sides then focused on the details of the co-location arrangement to be implemented at the West Kowloon Station. 14.In July 2017, the Hong Kong Government and the Mainland authorities reached consensus on the framework for implementing the co-location arrangement at the West Kowloon Station. Under the co-location arrangement, a Mainland Port Area was to be set up in the West Kowloon Station for carrying out Mainland immigration checks, customs control and quarantine measures; and the Mainland Port Area would be established by the Mainland and be subject to its jurisdiction and in accordance with relevant Mainland laws, except for certain reserved matters. On 25th of the same month, the Chief Executive in Council decided to endorse the implementation of the co-location arrangement subject to the “Three-step Process” whereby:
B4. Step 1 – the Co-operation Arrangement 15.On 18 November 2017, the Chief Executive and the Governor of Guangdong signed the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region (“HKSAR”) on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement (“the Co-operation Arrangement”). Pursuant to the Co-operation Arrangement, customs, immigration and quarantine procedures of the Mainland and the HKSAR, as two different jurisdictions, are successively conducted at the Hong Kong Port Area and the Mainland Port Area of the West Kowloon Station, the terminus of the Hong Kong Section of the XRL. The Mainland Port Area is subject to the Mainland jurisdiction and the Mainland law save and except certain reserved matters as prescribed. 16.Under the Co-operation Arrangement:
17.According to Mr Lai Yee Tak Joseph, Permanent Secretary for Transport and Housing (Transport) of the Transportation and Housing Bureau, there existed sound policy reasons for the Co-operation Arrangement:[12]
B5. Step 2 – the Standing Committee’s Decision 18.On 27 December 2017, the Standing Committee of the National People’s Congress made the decision approving the Co-operation Arrangement (“the NPCSC Decision”). Significantly, the NPCSC Decision stated the rationale for the approval thus:
19.The NPCSC Decision then stated:
B6. Step 3 – the Ordinance 20.The Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill was passed by the Legislative Council on 14 June 2018 and signed by the Chief Executive on 21 June 2018. The Ordinance was gazetted on 22 June 2018. The Judge helpfully summarized the relevant provisions of the Ordinance as follows:
21.The Ordinance came into operation on 4 September 2018 after the Secretary for Transport and Housing duly published the requisite notice in the Gazette. C. Proceedings below 22.The applicants sought to challenging the constitutionality of the Ordinance on the following grounds:
23.The Judge observed that the Ordinance (in particular section 6), on its face, has the following effects:[13]
24.The Judge went on to state the proper question that he had formulated and explained by reference to four matters why the Ordinance was not prohibited or excluded by the Basic Law:
25.In response to the applicants’ submission that allowing the NPCSC Decision to dictate the outcome in this case would be an impermissible intrusion into the independent judicial power of the Hong Kong courts under BLs 2 and 80, the Judge emphasised that the present case was not decided on the basis that the NPCSC Decision dictated the outcome.[14] In any event, the Judge accepted the expert evidence of Professor Wang Lei on behalf of the respondents that, under the Mainland laws, the Standing Committee has the power under the Constitution to decide whether a particular matter is compliant with the “one country, two systems” principle and the Basic Law.[15] The Standing Committee also has the power under BLs 2, 17(2) and (3), and 158(1) to decide whether an arrangement is compliant with the Basic Law. In terms of the Mainland laws, such powers can be exercised by the Standing Committee by means of issuing “decisions”, and the NPCSC Decision is one such instance. Thus under the Mainland laws, the NPCSC Decision has legal effect and is binding both in the Mainland and on Hong Kong courts. 26.In terms of Hong Kong laws, the applicants submitted that the National People’s Congress (“NPC”) and the Standing Committee could only act in relation to Hong Kong through the Basic Law. Since the NPCSC Decision was not made through a mechanism within the Basic Law, the courts in Hong Kong could not rely on it to adjudicate on the question of whether the Ordinance was consistent with the Basic Law. The Judge did not find it necessary or appropriate to resolve questions on the status and legal effect of the NPCSC Decision under Hong Kong laws, as he was able to decide the present case without doing so.[16] He agreed with Leung Lai Kwok Yvonne v The Chief Secretary for Administration, HCAL 31/2015, unreported, 5 June 2015, per Au J (as he then was) at [30], that Hong Kong courts have no power to determine whether the NPCSC Decision is invalid under Hong Kong laws.[17] If necessary, the Judge would at least treat the NPCSC Decision as post-enactment extrinsic materials potentially admissible in aid of interpreting the Basic Law, and that it should be regarded as highly persuasive. Using the NPCSC Decision as an interpretation aid, the Judge considered that any doubt or ambiguity as regards the consistency of the Ordinance with the Basic Law was cleared in favour of the conclusion that the Ordinance is consistent with the Basic Law.[18] 27.As to the “Basic Structure Doctrine”, the Judge observed that the BL 159(4) has expressly provided that no amendment to the Basic Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong. He held that the doctrine did not add anything to the consideration of whether the Ordinance is inconsistent with the Basic Law, because once it is concluded that the Ordinance is consistent with the Basic Law, there is no question of its basic structure being amended by the Ordinance.[19] 28.In rejecting the applicants’ submission that the Ordinance deprived persons in the Mainland Port Area of fundamental rights, the Judge held that, once the Ordinance is found to be consistent with the Basic Law, the fundamental rights enshrined in the Basic Law and the Hong Kong Bill of Rights Ordinance cannot be relied upon in the Mainland Port Area.[20] He also observed that a person who enters the Mainland Port Area plainly intends to leave Hong Kong and enter the Mainland, and hence will be subject to Mainland law of his/her own volition in any event. 29.The respondents submitted that even if the Ordinance did have the effect of restricting the jurisdiction of the Hong Kong courts under BL 19, such restriction is valid as being proportional to the aim of the Ordinance. While accepting that a proportionality approach may be useful to determine whether restriction of fundamental rights by governmental measures could be justified, the Judge did not agree that such an approach could be used to resolve the fundamental issue of whether the Ordinance could exclude the application of Hong Kong laws and the jurisdiction of the Hong Kong courts.[21] 30.On the alternative argument that if the Ordinance could validly treat the Mainland Port Area as lying outside Hong Kong, the Basic Law does not authorise the Ordinance to apply Hong Kong laws outside Hong Kong, the Judge held that section 6, as a deeming provision, has no application to the reserved matters. There is nothing unconstitutional in preserving the jurisdiction of the Hong Kong authorities (including the courts) over the Mainland Port Area in respect of the reserved matters.[22] The Judge therefore refused to grant leave to the applicant in HCAL 1160/2018 (CACV 87/2019) to advance this alternative argument by amendment to the Form 86. 31.In consequence, the Judge gave the applicants leave to apply for judicial review but having found that the Ordinance was constitutionally compliant, dismissed the substantial application. 32.The applicants then appealed. D. Grounds of appeal 33.The applicants raised numerous grounds of appeal. We have already at the outset dealt with the ground on what should be the proper formulation of the determinative issue. There are three further grounds which can be disposed of shortly. 34.First, it is Mr Lee’s complaint that the Judge erred in applying the proportionality test in determining the constitutionality of the Ordinance when he said that the Co-operation Arrangement embedded in the Ordinance was “justified” by taking into account the overall interests of Hong Kong and the fact that the Arrangement is beneficial to the overall interests of Hong Kong. In advancing this complaint, Mr Lee was reading what the Judge had said at [76] of the Judgment with [70] and [72]. At [76], the Judge actually said that “[a] critical feature … is that the [Co-operation Arrangement] is justified by and limited to the particular circumstances and imperatives arising from the unprecedented port project.” He made no reference to [70] or [72]. In any event, the Judge at [80] rejected the respondents’ case that the proportionality test should be adopted if the Ordinance had the effect of restricting the jurisdiction of Hong Kong courts under BL 19. He pointed out that the question depended on the true meaning and effect of the Basic Law. As such, Mr Lee’s complaint is entirely misconceived. 35.Second, Mr Ng again prayed in aid the “Basic Structure Doctrine”. In our view, the Judge was entirely correct in rejecting it for the reasons that he gave: see [27] above. 36.Lastly, there is the discrete ground raised by Mr Pun based on the alternative argument referred to at [22(4)] above. We reject it for the same reasons as the Judge did: see [30] above. 37.The remaining grounds of appeal which merit fuller discussion boil down to four main propositions:
The parties’ submissions on Grounds 2 to 4 are substantially a repetition of their arguments advanced before the Judge below. E. Analysis E1. The purposive approach and “living instrument” 38.It is well-established that the courts adopt a purposive approach in construing the Basic Law. In Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, Li CJ at p.28E-F expounded the approach thus:
39.As a prelude to his exposition, the Chief Justice at p.28D alluded to the need to treat the Basic Law as a living instrument so that it can deal with changing needs and circumstances. I endeavoured to summarize that concept in Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association [2016] 5 HKLRD 542 at [60] in these terms:
The above statement is derived from a line of cases since Ng Ka Ling, supra, including W v Registrar of Marriages (2013) 16 HKCFAR 112, per Ma CJ and Ribeiro PJ at [84]; ZN v Secretary for Justice [2019] HKCFA 53, per Fok PJ at [30]; and Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, per A Cheung J (as Cheung CJ then was) at [162]. 40.In light of Ground 1, it is necessary to elaborate on the considerations underlying the concept of living instrument as applied to the Basic Law. As a facet of purposive construction, that concept arises from the unique characteristics of a constitutional document. As a constitutional document, one of the principal purposes of the Basic Law is to prescribe the systems to be practised in the HKSAR in order to ensure that the implementation of the basic policies of the People’s Republic of China regarding Hong Kong, including the principle of “one country, two systems”, will remain unchanged for 50 years (counting from 1 July 1997): Preamble to the Basic Law, §§2 and 3; the Joint Declaration, §3(12); and BL 5. The Basic Law is accordingly drafted with an eye to the future. Its function is to provide a continuing constitutional framework for the Hong Kong system as prescribed to operate as long as Hong Kong remains a Special Administrative Region. Maintaining the Hong Kong system under the “one country, two systems” principle, however, does not mean stagnation. On the contrary, the Hong Kong system is expected to and indeed should continue to develop within the confines of the Basic Law to suit the contemporaneous needs and circumstances of our society, some of which may even be beyond the drafters’ contemplation. Keeping in line with these objectives, the Basic Law adopts a language in ample and general terms to express statements of policies, principles and values without condescending to particularity or definition of terms. This enables the Basic Law to grow and develop at the same time as our society progresses so as to meet current social and political realities, including those which are not envisaged by its drafters. These considerations require the court to approach the Basic Law as a living instrument so that it will not be deprived of its vitality and adaptability to serve succeeding generations in the HKSAR. 41.Although the courts may invoke the concept of living instrument in construing the Basic Law when they are grappling with a subject matter which was not contemplated when the Basic Law was promulgated in 1990, there is one important caveat. The concept does not release the courts from the task of interpreting the language used in the Basic Law and does not enable them to give free rein to whatever they consider should have been the views of the drafters. The fundamental principles and values in the Basic Law are contained and expressed in its language. And it is the language actually used that the courts must construe. It is impermissible for the courts to give a meaning that the language cannot bear. Otherwise, the result is not interpretation but “divination” or put bluntly, a disguised attempt to amend the Basic Law. See ZN v Secretary for Justice [2018] 3 HKLRD 778, per Cheung CJHC at [75], citing Matadeen v Pointu [1999] 1 AC 98, per Lord Hoffmann at p.108F-G; State v Zuma 1995 (4) BCLR 401, per Kentridge AJ at p.412. 42.Thus understood, the courts are entitled to and must approach the Basic Law as a living instrument in determining the constitutionality of the Ordinance, which is a novel matter not envisaged when the Basic Law was promulgated. In doing so, the courts are still guided and bound by the purpose of the Basic Law and the relevant articles, and its language in light of its context. 43.The complaint that the Judge had placed excessive reliance on the concept of living instrument rests on his observation at [70] of the Judgment:
44.However, that observation cannot be read in isolation. It was preceded by the Judge’s ruling at [69] that having regard to the context and purpose of the Basic Law, in particular to BL 18(1), BL 18(2), BL 19(2) and BL 80, creation of the Mainland Port Area is not inconsistent with the purpose of maintaining or preserving the distinct Hong Kong system under the “one country, two systems” principle. The Judge then at [71] accepted the respondents’ submission that the establishment of the Mainland Port Area was itself a manifestation of the exercise of a high degree of autonomy by Hong Kong and the recognition of two distinct systems being practised in Hong Kong and the Mainland. Further, the Judge at [72] said that leaving aside the challenge to its legality or constitutionality, the fact that the co-location arrangement is beneficial to the overall interests of Hong Kong is a relevant factor in determining whether it is prohibited by the Basic Law. Importantly, he reiterated that he had already held that the Co-location Arrangement was constitutional. 45.In other words, the Judge had in mind the primary purpose of the Basic Law, namely, to maintain and preserve the Hong Kong distinct system under the “one country, two systems” principle and, for the reasons that he gave, ruled that it is not violated by the Ordinance, before he at [70] referred to the failure to treat the Basic Law as a living instrument if the Ordinance, which was beneficial to Hong Kong’s overall interests, were held to be prohibited by the Basic Law. When that observation is properly read with his other reasons for holding that the Ordinance was constitutional, it is abundantly clear that the Judge did not overly rely on the concept of living instrument as complained. This disposes of Ground 1. 46.Applying the purposive approach, we now come to the purposes and contexts relevant to the construction exercise at hand. E2. Purposes and contexts 47.It is common ground that the Co-operation Arrangement, now embedded in the Ordinance, lies squarely at the interface between the Mainland system and the Hong Kong system. So does the Ordinance which implements the Co-operation Arrangement. Stripped to its very core, the applicants’ complaint is that the Ordinance strikes at the very heart of the constitutional order of the HKSAR as it offends BL 18 and BL 19, thereby infringing the basic policies of establishing the Region under the “one country, two systems” principle, and has diminished the high degree of autonomy it enjoys. 48.This complaint involves a closer examination of (a) the “one country, two systems” principle and (b) the interface between the systems practised in the Mainland and Hong Kong under the “one country, two systems” principle. They provide the constitutional context in which the constitutionality of the Ordinance is to be considered. E2.1 The “one country, two systems” principle 49.The “one country, two systems” principle is a prominent feature in the Preamble to the Basic Law. It is also the central theme of the general principles set out in Chapter I of the Basic Law. Thus:
50.Two further key features arise from the “one country, two systems” principle. One concerns powers; the other, systems:
51.The theme of “one country, two systems” goes on to define the relationship between the Central Authorities and the HKSAR and the allocation of powers in Chapter II of the Basic Law. Relevantly for present purposes, further provisions are made to effect the authorization in BL 2 for the executive, legislative and judicial power. 52.BL 16 vests the HKSAR with executive power, including conducting on its own administrative affairs of the Region in accordance with the relevant provisions of the Basic Law. 53.There are two provisions on the legislative power. 54.BL 17(1) vests the HKSAR with legislative power. BL 17(2) further requires laws enacted by the Legislative Council to be reported to the Standing Committee for the record. Importantly, under BL 17(3), if the Standing Committee, after consulting the Committee for the Basic Law of the HKSAR, considers that any law enacted by the Legislative Council is not in conformity with the provisions of the Basic Law regarding, among another thing, the relationship between the Central Authorities and the HKSAR, the Standing Committee may return the law to the Legislative Council but shall not amend it. Any law so returned shall immediately be invalidated without retroactive effect unless otherwise provided for in the laws of the HKSAR. We will return to the significance of the mechanism in BL 17(3) to the present appeals in a moment. 55.BL 18(1) sets out the applicable laws in force in the HKSAR as the Basic Law, the laws previously in force in Hong Kong as provided for in BL 8, and the laws enacted by the Legislative Council. BL 18 goes on to provide: “[18(2)] National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region. [18(3)] The Standing Committee of the National People's Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the Hong Kong Special Administrative Region and the government of the Region. Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.
56.BL 19(1) vests the HKSAR with independent judicial power, including that of final adjudication. BL 19(2) provides that:
As it is acknowledged in BL 19(2), the jurisdiction of the courts can be circumscribed by statutory restrictions. 57.Finally, on powers, BL 20 stipulates that the HKSAR may enjoy other powers granted to it by the NPC, the Standing Committee or the Central People’s Government. 58.Provisions on the executive, legislative and judicial systems of the HKSAR are to be found in Chapter IV on political structure. They also give further details on the executive, legislative and judicial power.[23] 59.One crucial general point which informs the construction of BL 18 and BL 19 may be drawn from the outline above. The executive, legislative and independent judicial power, as authorized by the NPC under BL 2, effected by BLs 16 to 19 and set out in greater details in the relevant articles in Chapter IV, is to be exercised by the HKSAR for two primary purposes. Firstly, it is for the furtherance of the high degree of autonomy that the HKSAR enjoys. Secondly, it is for the maintenance of the Hong Kong system, including the executive, legislative and judicial systems as prescribed in Chapter IV. Needless to say, such power must be exercised within the bounds of the high degree of autonomy set in the Basic Law. E2.2 Interface between the two systems 60.The “one country, two systems” principle is underpinned by the imperative that the Mainland system and the Hong Kong system, though kept separate and distinct under the Basic Law, are within one country and one national constitutional order. There are interfaces where the two systems meet and interact within the constitutional framework set by the Constitution and the Basic Law. Accordingly, there are mechanisms in the Constitution and the Basic Law to regulate their interactions and to ensure that any subject matter lying at the interface conforms with both systems. Four of these mechanisms which are of immediate relevance are highlighted below. (i) Decision by the Standing Committee 61.First, a decision made by the Standing Committee on a subject matter lying at the interface of the two systems. 62.According to the evidence of Professor Wang Lei, the respondents’ PRC law expert, which the Judge accepted:[24]
We also accept Professor Wang’s evidence. 63.While the legal status and effect of a Standing Committee’s decision generally and the NPCSC Decision specifically under the Mainland law is settled, the parties disagreed on its exact legal status and effect as a matter of Hong Kong law. As seen, the Judge took the view that it was not necessary for him to deal with the matter, other than observing that the courts have no power to determine if a decision made by the Standing Committee is invalid or not as a matter of Hong Kong law. Having found that the Ordinance was not inconsistent with the Basic Law, the Judge said that if the position was not clear, he would regard the NPCSC Decision highly persuasive as post-enactment extrinsic materials in aid of construction. 64.In the respondent’s notices, it was argued, as an additional reason why the NPCSC Decision is highly persuasive, that where a Hong Kong court has to determine an issue governed by foreign law, it will determine what the foreign law is and apply the foreign law as found. Accordingly, since the NPCSC Decision is determinative of the constitutionality of the Co-location Arrangement as a matter of the Mainland law, it should also govern the position when that same issue falls to be determined by a Hong Kong court. However, it does not answer the question if the NPCSC Decision is binding as a matter of Hong Kong law. In his oral submissions, Mr Benjamin Yu SC for the respondents[25] confirmed that it is not his case that a decision of the Standing Committee or for that matter, the NPCSC Decision, is directly applicable as laws in Hong Kong or that it is binding on Hong Kong courts as a matter of Hong Kong law. His submission remained that the Judge was correct in finding that the NPCSC Decision is a highly persuasive aid to construction. 65.We have not been given full assistance on the question whether a decision made by the Standing Committee on a subject matter lying at the interface of the two systems, such as the NPCSC Decision, is binding as a matter of Hong Kong law. However, it would appear to us that the reasoning of the Court of Final Appeal in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, on the binding nature of an interpretation of the Basic Law made by the Standing Committee in Hong Kong, may provide some valuable guidance. There, Li CJ at pp.222I-223C said:
66.Adopting the same reasoning and based on Professor Wang’s evidence, one may reasonably argue thus. Save and except that the socialist system and policies shall not be practised in Hong Kong, the Constitution on the whole must apply to the HKSAR as an inalienable part of the People’s Republic of China. Under both the Constitution and the Basic Law, the Standing Committee has the ultimate authority and power to decide if a subject matter lying at the interface of the two systems conforms with the Constitution and the Basic Law. The authority of the Standing Committee to make such decision must be fully acknowledged and respected in the HKSAR. As both the Mainland and Hong Kong systems are within one country and one national constitutional order, such Standing Committee’s decision made in conformity with the Constitution and the Basic Law under the Mainland system is binding in Hong Kong. 67.That argument, if correct, would be determinative of these appeals and indeed issues similar to those arising here. But we will have to await another occasion to examine it further in light of the submissions before us. 68.Returning to the matter as it now stands, we will, as we must in light of the respondents’ stance, proceed on the basis that the NPCSC Decision is not binding under Hong Kong law. For reasons to be articulated, we agree with the Judge that it is highly persuasive for the construction exercise to determine if the Ordinance contravenes the Basic Law, although we will not treat it as post-enactment extrinsic materials as he did. 69.As already alluded to, it is axiomatic that a subject matter lying at the interface must conform with the Basic Law under each of the Mainland and Hong Kong systems. And on the question of conformity, the two systems must operate coherently. The two systems being within one country and one national constitutional order requires it to be so. When the Standing Committee has by way of a decision confirmed that an arrangement conforms with the Basic Law, its decision as a matter of the Mainland law is final. This is a crucial fact that the courts in Hong Kong must fully acknowledge and accept when approaching a constitutional challenge that the subject matter contravenes the Basic Law under Hong Kong law. The Standing Committee’s authoritative view expressed in the NPCSC Decision must therefore carry a highly persuasive weight in the courts’ construction of the Basic Law. 70.Another reason why the NPCSC Decision is highly persuasive is this. As pointed out by the Judge,[26] if and when a case involving a matter which concerns the relationship between the Central Authorities and the HKSAR reaches the Court of Final Appeal, subject to the satisfaction of the “necessity condition” identified in Ng Ka Ling, supra, at p.31A-B, a referral to the Standing Committee for interpretation of the relevant articles of the Basic Law under BL 158(3) would be required. Common sense dictates that in all probability, the Standing Committee, after consulting the Basic Law Committee, would give the same answer in its interpretation. The suggestion by the applicants that it might not is wholly unrealistic if not fanciful. So in reality, the Standing Committee has already stated its definitive view in its decision. If the lower courts (including the Court of Appeal) were to differ thereby leading to an appeal to the Court of Final Appeal, its view, now contained in an interpretation, would still prevail. In the circumstances, the courts must be very circumspect in adopting a construction of the Basic Law that is inconsistent with the NPCSC Decision. 71.We do not approach the NPCSC Decision as ordinary post-enactment extrinsic materials because it goes far beyond than just shedding light on context and purpose for construing the Basic Law. It is the most crucial step in the “Three-step” process. For without the Standing Committee’s approval, the project could not have proceeded any further. After carefully examining the issues involved, the Standing Committee confirms authoritatively that the Co-operation Arrangement, the subject matter of the Ordinance, conforms with the Basic Law. Viewed thus, the NPCSC Decision is an important and weighty interpretative factor in the overall constitutional context. 72.Our conclusion that the NPCSC Decision is highly persuasive does not mean that the courts abdicate their constitutional duty in deciding if the Ordinance contravenes the Basic Law. It means that the courts must give due regard to it as a highly persuasive interpretative factor in the overall constitutional context and, in doing so, will strive for a construction of the Basic Law that is consistent with it. 73.We only need to very briefly deal with the applicants’ argument that the NPCSC Decision is irrelevant or only has minimal weight. They first contended that it is not an interpretation of the Basic Law by the Standing Committee and is therefore not relevant. Of course, it is not an interpretation but it does not detract from our reasoning at [69] and [70] above. Next, they approached it as post-enactment materials and cautioned against the risks in using it to construe the Basic Law. But we do not regard it as post-enactment materials for the purpose of the construction exercise. Finally, Mr Lee argued that the Standing Committee cannot act outside the framework of the Basic Law to issue the NPCSC Decision. That argument cannot stand in face of Professor Wang’s evidence. We therefore reject all the applicants’ submissions on the status and effect of the NPCSC Decision which are contrary to Professor Wang’s evidence and our analysis above. This disposes of Ground 2. (ii) Mechanism under BL 17(3) 74.Second, the mechanism for returning of law by the Standing Committee under BL 17(3). 75.A law enacted by the Legislative Council regarding the relationship between the Central Authorities and the HKSAR lies at the interface between the two systems. While the Legislative Council must pass a law that does not contravene the Basic Law in that regard as a matter of Hong Kong law, the Standing Committee must also ensure that it does not contravene the Basic Law as a matter of Mainland law. If after consulting the Basic Law Committee, the Standing Committee considers that the law did so contravene the Basic Law, BL 17(3) expressly empowers the Standing Committee to return it to the Legislative Council. Since the Standing Committee’s decision on the matter is final, BL 17(3) further provides that upon returning by the Standing Committee, the law shall immediately be invalidated. The mechanism in BL 17(3) ensures that a law which lies at the interface of the two systems conforms with each of them under the Basic Law and the view of the Standing Committee on the matter prevails. 76.Mr Yu submitted that as the Standing Committee had already in the NPCSC Decision confirmed that the Co-operation Arrangement conforms with the Basic Law, it follows that the Ordinance is also constitutional. It was an indirect application of the NPCSC Decision to address the constitutionality of the Ordinance. In the course of the hearing, we raised with Mr Yu a possible argument based on BL 17(3), not raised before, which might enable the NPCSC Decision to be applied directly. It runs like this. If the Standing Committee decided to return the Ordinance under BL 17(3), its decision that it did not conform with the Basic Law could not be challenged in Hong Kong courts. By not returning the Ordinance under the mechanism in BL 17(3), the Standing Committee must have confirmed that the Ordinance conformed with the Basic Law. Its confirmation, likewise, could not be reviewed by Hong Kong courts. That argument, if correct, would be dispositive of the appeals and issues similar to those that we have to decide. While Mr Yu readily acknowledged the cogency of the argument, he fairly submitted that it was not the respondents’ primary case and would not rely on it for present purpose. In the circumstances, we did not hear the parties further on the implications of the Standing Committee’s act of not returning the Ordinance under BL 17(3). We would leave the point for another occasion. (iii) Mechanism under Annex III 77.Third, application of national laws under Annex III of the Basic Law. 78.Under BL 18(2) and (3), national laws applied through the mechanism of Annex III of the Basic Law are confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the HKSAR. Those matters fall within the overarching responsibility of Central People’s Government, hence the application of the relevant national laws in Hong Kong. Plainly, application of the national laws in such circumstances does not undermine the Hong Kong system. Rather it is a manifestation of the fact that the HKSAR is an inalienable part of the People’s Republic of China. As to BL 18(4), since the extreme situations of war or emergency identified there are evidently beyond the control of the HKSAR Government, the Central People’s Government must act instead. BL 18(4) therefore empowers the Central People’s Government to apply the relevant national laws in the HKSAR. This is a legitimate way to allow the relevant national laws to step in to tackle the extreme realities which Hong Kong law cannot cope with. It does not encroach upon the Hong Kong system. On the contrary, it helps protect the Hong Kong system and indeed the entire HKSAR which is now under threats that it cannot handle. 79.Recently in HKSAR v Lai Chee Ying [2021] HKCFA 3, the Court of Final Appeal at [32]-[37] held that the Standing Committee’s promulgation and listing of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Annex III, as a legislative act done in accordance with the provisions of the Basic Law and the procedure therein, is not subject to review by the courts, citing Ng Ka Ling v Director of Immigration (No 2) (1999) 2 HKCFAR 141, at p.142. Applying the same reasoning, an order by the Standing Committee applying a national law under BL 18(4) is equally not open to challenge before the Hong Kong courts. 80.In his oral submissions, Mr Lee suggested that the proper way to give effect to the Co-operation Arrangement in Hong Kong is by way of applying the national laws to the Mainland Port Area via the mechanism in Annex III. We disagree because the national law introduced through the Annex III mechanism applies across the board to the entire HKSAR. It cannot be invoked for introducing the Co-operation Arrangement, which is limited to a confined area and restricted classes of individuals. (iv) Interpretation by the Standing Committee 81.Lastly, interpretation of the Basic Law by the Standing Committee under BL 158: see Chong Fung Yuen, ibid. 82.Mr Lee submitted that he would have no qualm if the Standing Committee were to introduce the Co-operation Arrangement by an interpretation of the Basic Law. In the respondent’s notices, the respondents argued that the NPCSC Decision should be treated in substance as an interpretation and accorded due weight as one of the reasons why it is highly persuasive. In our view, it is incorrect to conflate a decision with an interpretation. Moreover, treating the NPCSC Decision as an interpretation in substance is unnecessary when, as demonstrated, it per se must have a highly persuasive weight. E2.3 Socio-economical context 83.Apart from the constitutional context discussed above, there is another context that is relevant to the construction exercise discussed above. One of the primary purposes of establishing the HKSAR is to maintain and promote the prosperity of Hong Kong as a free port and an international financial centre: see Annex I to the Joint Declaration on Elaboration by the Government of the People’s Republic of China of its Basic Policies regarding Hong Kong, Parts VI and VII. This provides the socio-economical context in which the constitutionality of the Ordinance is to be examined. E3. Construing the Basic Law 84.Having identified the relevant purposes and contexts, we now deal with the core issue identified at the outset. 85.In contending that the Ordinance contravenes BL 18 and BL 19 (Ground 3), the applicants took the following main points. 86.First, Mr Lee submitted that the specific legislative intent of BL 18 and BL 19 is clear: Within the boundary of the HKSAR, every case (whether civil or criminal) can only be tried in a Hong Kong court, according to Hong Kong law except for those national laws prescribed in BL 18. This is to ensure that within the “one country”, there is a clear demarcation of the “two systems”, so as to implement the general purposes of Basic Law. The focus of his attack is on the “wholesale application” of Mainland laws and Mainland jurisdiction in the Mainland Port Area which is “in an area within the boundaries of the HKSAR”; and the consequential deprivation of the human rights protection promised under Hong Kong law. 87.Similarly, Mr Pun argued that the legislative intent of BL 18 is clear and unambiguous. Under the “one country, two systems” principle, the HKSAR shall have its own legal system applying Hong Kong law. Hong Kong law shall be the law in force in the HKSAR. Exceptionally, some Mainland laws may be applied in the HKSAR if and only if they are listed in Annex III of the Basic Law and applied locally by way of promulgation or legislation by the HKSAR. Mr Pun cited Stock Exchange of Hong Kong Ltd v New World Development Co Ltd (2006) 9 HKCFAR 234, at §42 and Ng Ka Ling, at 36D, placing emphasis on Li CJ’s remarks in Ng Ka Ling, ibid, that [BL 18] “restricting the application of Mainland laws is essential to the implementation of the ‘one country, two systems’ principle” and that there is no basis for an argument which would “provide a backdoor for the application of Mainland laws”. That is what the Ordinance seeks to do, Mr Pun contended. 88.Focusing on the language used in BL 19(2), Mr Ng emphasised the restrictions on the courts’ jurisdiction as previously in force in Hong Kong. He went on to examine the restriction on the power of the legislature to restrict the courts’ jurisdiction by legislation under the “legal system and principles previously in force” in Hong Kong. In essence, his argument was that the legislature, under the colonial legal system, had no power to “give up” jurisdiction over a part of Hong Kong to another power, to displace judicial power, or to remove the habeas corpus jurisdiction of the court in respect of any person. 89.In contending that the Ordinance diminished the high degree of autonomy enjoyed by the HKSAR (Ground 4), Mr Lee submitted that the Judge erred in holding that the establishment of the Mainland Port Area is a “manifestation of the exercise of a high degree of autonomy by Hong Kong”, because the powers and duty to exercise a high degree of autonomy do not permit the relevant authorities to “relinquish” them. Mr Lee submitted that under the Ordinance, the HKSAR had impermissibly “contracted away” its jurisdiction over the Mainland Port Area. In support, he relied on Crotty v An Taoiseach, [1987] 2 CMLR 666 (Supreme Court of Ireland), at p.728; and Boumediene v Bush, 553 US 723 (2008) (US Supreme Court), at [8, 9]. 90.Mr Pun and Mr Ng, on the other hand, did not appear to suggest that the Judge’s conclusion that the establishment of the Mainland Port Area is a manifestation of autonomy was in itself erroneous. Mr Ng argued that such a conclusion did not provide an answer to the proper question, rather, it begged the proper question, which is whether the Basic Law authorises the establishment of the Mainland Port Area and whether provisions have been violated. Mr Pun argued that it is beside the point to consider whether the establishment of the Mainland Port Area is a manifestation of autonomy. The issue is, he submitted, the constitutionality of excluding the application of Hong Kong laws as well as jurisdiction of Hong Kong courts over a place within the territory of Hong Kong. 91.We are unable to accept the applicants’ arguments. 92.As a starting point, subject to the constitutionality issue, the HKSAR, in exercising the high degree of autonomy bestowed on it by the Basic Law, plainly has ample powers to establish the Mainland Port Area within the West Kowloon Station. In addition to the general powers authorized under BL 1 and BL 2, BL 154(2) empowers the HKSAR Government to apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions. The HKSAR Government may exercise its own immigration controls on the entry to and exit from the Region as part of the executive power that it enjoys pursuant to the authorization by the NPC. Establishing the Mainland Port Area at the West Kowloon Station for the purpose of immigration control and related matters is well within the executive power of the Government of HKSAR. Enacting the Ordinance to give statutory backing to its establishment likewise falls within the legislative power of the Legislative Council. 93.The genesis of the Co-operation Arrangement, and the “Three-step process” that it went through, cumulating in the enactment of the Ordinance clearly demonstrate that the Ordinance does not offend the “one country, two systems” principle, diminish the HKSAR’s high degree of autonomy or encroach upon the Hong Kong systems as complained. As the NPCSC Decision stated and confirmed:
94.This statement is augmented by Mr Yu’s submissions, which we accept:
95.The main plank of the applicants’ arguments rests on the proposition that it is impermissible to deem the Mainland Port Area as an area lying outside Hong Kong but within the Mainland for the purpose of applying the Mainland law and the delineation of jurisdiction (including the jurisdiction of the courts) over the Mainland Port Area, except the reserved matters as defined. That proposition does not withstand scrutiny. 96.First, the deeming provision proceeds on the well-established legal notion that in the context of modern transport and communication, a distinction may be drawn between territorial boundary and legal jurisdiction, which, depending on the actual needs and circumstances, are not necessarily co-extensive: see Shaw on International Law (8th Ed), pp.484, 492-493; Chu Woan Chyi v Director of Immigration, HCAL 32/2003, 23 March 2007, unreported, at [82]; Sino Wood Investment Ltd v Wong Kam Yin (2005) 8 HKCFAR 715, at [12]-[13], [19]. Deeming the Mainland Port Area as an area lying outside Hong Kong and within the Mainland in terms of legal jurisdiction does not alter the boundary of the HKSAR, as section 6(2) makes plain. It certainly does not have the effect of “surrendering” a part of the HKSAR back to the Mainland, contrary to the applicants’ emotive suggestion. It meets the special needs and circumstances arising from the Co-operation Arrangement, and no more. The reliance by Mr Lee on the two cases mentioned at [89] above is misplaced. Crotty concerned a State’s sovereignty in formulating foreign policy. Boumediene was about the continued availability of habeas corpus in territories where the US had de facto sovereignty. In terms of facts, issues and principles, they simply had no comparability to the present case. 97.Second, the intention of a deeming provision, in laying down a hypothesis, or an assumed state of affairs, is that the hypothesis should be carried as far as necessary to achieve the legislative purpose, but no further. See Bennion on Statutory Interpretation, 7th Edition, §17.8. Here, the purpose of the Ordinance is to establish a port in the West Kowloon Station where immigration controls and related measures are to be implemented to facilitate passengers who choose to travel between Hong Kong and the Mainland by using the XRL with the associated convenience and advantages provided by the co-location arrangement. The deeming provision in the Ordinance gives effect to this purpose, and no more. 98.Finally, we give full weight to the NPCSC Decision confirming that the Ordinance, including the deeming provision, conforms with the Basic Law. 99.Once it is accepted, and so it must, that the deeming provision in the Ordinance rests on sound legal footing, then within the Mainland Port Area, there is no question of contravention of BL 18(2) by way of the application or enforcement of the Mainland law in the HKSAR; or contravention of BL 18(1) on account of the disapplication of Hong Kong laws, including the human rights protection; or contravention of BL 19(2) in terms of the jurisdiction of the Hong Kong courts as being curtailed. On proper construction of these provisions in BL 18 and BL 19 in conjunction with the constitutional underpinning for the establishment of the Mainland Port Area as discussed above, such Area does not come within the legal jurisdiction of the HKSAR except for the reserved matters. 100.Our conclusion is further supported by the coherence principle, under which the Basic Law must be read in a harmonious and congruous way: Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59, at [61]; Kwok Cheuk Kin v Director of Lands [2021] 1 HKLRD 737, at [98]. As already pointed out, the legislative and judicial power under BL 18 and BL 19 is to be exercised for furthering the HKSAR’s high degree of autonomy and for maintaining the Hong Kong systems. BL 18 and BL 19 cannot be construed to take away the HKSAR’s powers to establish the Mainland Port Area by the Ordinance, especially the deeming provision, which neither diminishes the Region’s high degree of autonomy nor impairs the Hong Kong system. 101.With the main plank dismantled, the rest of the applicants’ arguments must fall away. We need not deal with them individually, except this. The applicants argued that the Ordinance would create a dangerous precedent by which any area within the HKSAR might, for arbitrary purpose, be designated as lying in the Mainland. This is an alarmist and fanciful argument. For any such law would definitely be returned by the Standing Committee and be invalidated under the mechanism in BL 17(3). Nor could it possibly survive the courts’ scrutiny. 102.To sum up, in terms of constitutional purpose and context, given its specific purpose, its unique characteristics, and its limited applicability in terms of geographical location and classes of individuals, in deeming the Mainland Port Area as an area lying outside the HKSAR and lying within the Mainland for the purpose of applying the Mainland law and jurisdiction except for the reserved matters, the Ordinance does not contravene BL 18 and BL 19. It does not diminish the high degree of autonomy enjoyed by the HKSAR as authorized by the NPC. It does not impermissibly allow the Mainland system to pass the demarcation line between the two systems jealously guarded by the Basic Law and encroach upon the Hong Kong system. 103.In terms of the socio-economical purpose and context of the Basic Law, the NPCSC Decision stated:
104.These reasons cogently explain why the Co-operation Arrangement, though a novel matter, satisfies the socio-economic policy of the Basic Law. They provide strong support why the Ordinance conforms with the Basic Law in terms of its socio-economical purpose and context. We respectfully adopt them. The applicants effectively asked the courts to ignore or give minimal weight to the socio-economic benefits that the Ordinance will bring to Hong Kong. This is an unmeritorious argument which must be firmly rejected. 105.For completeness, we reject all the applicants’ arguments which are contrary to our analysis and conclusion above. This disposes of Grounds 3 and 4. 106.In the respondent’s notices, the respondents contended that leaving aside their primary argument that the Ordinance does not contravene the Basic Law, the Judge ought to have also applied the proportionality analysis to uphold its constitutionality if the relevant articles of the Basic Law are engaged. Applying the proportionality analysis as propounded by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, Mr Yu submitted that the Ordinance plainly serves the undisputedly legitimate and important aim of promoting travelling and economic development, co-operation and integration between the HKSAR and the Mainland. The Ordinance is rationally connected to the aim as it establishes the Mainland Port Area and the co-location arrangement thereat, which ensures high-speed, direct and convenient travel to connect to the ever-expanding national high-speed rail network. Whichever the standard of scrutiny might be, the measures adopted in the Ordinance are proportionate because:
As to the fourth stage, Mr Yu submitted that it has little relevance here. Since it is up to an individual whether he or she wishes to use the XRL, the Ordinance cannot be said to impose any relevant or significant adverse burden on any specific groups or individuals in the HKSAR. In any event, there is no suggestion by the applicants that they had suffered an individual and excessive burden. Insofar as it is necessary, Mr Yu argued, the Ordinance strikes a reasonable and fair balance between societal benefits and adverse impact upon individuals. 107.While we agree with the Judge that the constitutionality of the Ordinance is to be determined primarily by a proper construction of the Basic Law, we accept Mr Yu’s argument that if the relevant provisions of the Basic Law are engaged, the Ordinance clearly satisfies the proportionality assessment as detailed in counsel’s submissions. If necessary, we will uphold its constitutionality on this ground as well. F. Conclusion 108.For the above reasons, applying the purposive construction to the Basic Law and treating it as a living instrument, we hold that although the Ordinance is a novel matter, it conforms with the Basic Law. We would answer the core issue identified at the outset with a “No”. We therefore uphold the Judge’s judgment and dismiss the applicants’ appeals. 109.On costs, we direct the parties to file written submissions (limited to 3 pages) within 14 days from the handing down of judgment. We will then dispose of it on paper.
CACV 8/2019 Mr Ernest CY Ng and Mr Geoffrey Yeung, instructed by Kenneth Lam Solicitors, for the applicant Mr Benjamin Yu SC, Mr Abraham Chan SC and Mr Anthony Chan, instructed by Department of Justice, for the respondent CACV 10/2019 Mr Martin Lee SC, Mr Jeffrey Tam and Ms Isabel Tam, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid, for the applicant Mr Benjamin Yu SC, Mr Abraham Chan SC and Mr Anthony Chan, instructed by Department of Justice, for the 1st and 2nd respondents CACV 87/2019 Mr Hectar Pun SC, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid and Mr Anson Wong Yu Yat, instructed by Ho Tse Wai & Partners, for the applicant Mr Benjamin Yu SC, Mr Abraham Chan SC and Mr Anthony Chan, instructed by Department of Justice, for the respondent CACV 88/2019 Mr Hectar Pun SC, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid and Mr Anson Wong Yu Yat, instructed by Ho Tse Wai & Partners, for the applicant Mr Benjamin Yu SC, Mr Abraham Chan SC and Mr Anthony Chan, instructed by Department of Justice, for the respondent [1] Upon the applicant’s application for withdrawal, we dismissed CACV 87/2019 on 20 January 2021, the second day of the hearing. [2] Judgment, at [68]. [3] Mr Ng appeared with Mr Geoffrey Yeung whereas Mr Lee was leading Mr Jeffrey Tam and Ms Isabel Tam. [4] Mr Pun was leading Mr Anson Wong. [5] Which mandates that no law enacted by the Legislative Council shall contravene the Basic Law. [6] In the proceedings below, the applicants contended that the Ordinance contravened a host of articles in the Basic Law establishing the very constitutional order of the HKSAR, including BLs 16, 22, 48 and 59 (on the executive powers of the Hong Kong Government); BLs 8, 17, 18 and 66 (on the legislative powers of the Hong Kong Legislative Council); BL 18 (on the applicable laws of Hong Kong and the jurisdiction of the Hong Kong courts); BLs 19, 80, 82, 84 and 87 (on the jurisdiction and judicial powers of the Hong Kong courts): see further Part C below. On appeal, they have effectively narrowed the basis of their challenge to BL 18 and BL 19. [7] For details, see LC Paper No. CB(2)1966/16-17(01) titled “Customs, Immigration and Quarantine Arrangements of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link” dated July 2017 (“the LegCo Paper”), §§2-8. [8] See Part B4 below. [9] Commissioned in December 2012. [10] Commissioned in December 2013. [11] For details, see the LegCo Paper, at §§19-21. [12] His first affirmation filed on 6 August 2018 and second affirmation dated 19 October 2018 in HCAL 1178/2018. [13] Judgment of [65]. [14] Judgment, at [78]. [15] Judgment, at [53(1)]. [16] Judgment, at [61]. [17] Judgment, at [62]. [18] Judgment, at [75]. [19] Judgment, at [77]. [20] Judgment, at [81]. [21] Judgment, at [80]. [22] Judgment, at [83]. [23] For the purpose of the constitutionality analysis, those provisions are subsumed under the discussion of BL 18 and BL 19. So we will not deal with them separately. [24] Mr Lee argued that the Judge erred in accepting Professor Wang’s evidence and should have accepted the evidence of the applicants’ expert, Professor Fu Hualing. We reject it as it was not pleaded in any of the grounds of appeal. [25] Appearing together with Mr Abraham Chan SC and Mr Anthony Chan. [26] Judgment, at [75]. |
Cases cited in this judgment
Further hearings and rulings under CACV 8/2019