Paulus Johannes Zimmerman, The Vice-chairman of the Southern District Council v. The Secretary of the Southern District Council

HCAL 1827/2020

[2021] HKCFI 3030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1827 OF 2020

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is an application for judicial review of the decision (“the Decision”)  of the Secretary (“the Secretary”)  of the Southern District Council (“the Council”)  made on or after 23 June 2020 not to circulate papers and not to keep, record, prepare and upload the minutes and audio recording of the proceedings of the 5^th Meeting (“the Meeting”)  of the Council on 2 July 2020 in respect of Item 10 on the approved agenda for the Meeting, namely, “Request for Information on Cases Involving Mentally Incapacitated Persons Handled by the Southern Police Division”.

2.In what follows, unless the context indicates otherwise, references to:

(1)  “Section” or “s” shall be to the District Councils Ordinance, Cap 547 (“the Ordinance”);

(2)  “SO” shall be to the Standing Orders of the Council (“the Standing Orders”)  made pursuant to s 68; and

(3)  “BL” shall be to the Basic Law.

BASIC FACTS

3.Mr Lo Kin Hei was the Chairman of the Council (“the Chairman”). Ms Yip Wai See was the Secretary of the Council.  She was a Senior Executive Officer (District Council), a public officer within the Southern District Office of the Home Affairs Department (“HAD”).

4.On 1 June 2020, there occurred a suspected case of assault and criminal damage in Tin Wan, Southern District (“the MIP Case”). The alleged assailant (“the Arrested Person”)  in that case was a mentally incapacitated person (“MIP”).  Ms Tiffany Yuen, a Southern District Councillor for the Tin Wan Constituency, received a request for assistance from the mother of Arrested Person in respect of the manner in which her son was handled by the Police in the course of the police investigation of the MIP case.  The details of the allegations made by the mother of the Arrested Person against the Police are not relevant to the present application and do not have to be set out here.  In fairness to the Police, I should mention that a different picture has been given by Ho Yan-kit, a Chief Inspector of the Police, and that the Arrested Person subsequently pleaded guilty to two charges of criminal damage and assault occasioning actual bodily harm on 24 September 2020 and was fined HK$1,500 and sentenced to three weeks’ imprisonment.

5.Anyhow, arising out of the MIP Case, Ms Yuen became concerned about the handling of MIPs by frontline police officers in the course of their day-to-day work, and wished to raise that topic for discussion at a meeting of the Council.  By a letter to the Chairman dated 14 June 2020, Ms Yuen proposed to raise the following matter, namely, “Request the Southern Police District to provide information on handling cases of mentally incapacitated persons” (“the Proposed Agenda Item”), for discussion at a meeting of the Council.  In that letter, Ms Yuen stated as follows:

“Persons with disabilities are stakeholders in the community, whether their rights can be protected depends upon cooperation between government departments. Elected District Councillors should monitor the situation. I have noticed that the police have notified the District Council, the Estate Management Advisory Committee and the public about crimes happening in the District, but there is no relevant information about how mentally incapacitated persons (MIP)  are handled.

Earlier this month, there was an assault and criminal damage case in Tin Wan Estate which involved an MIP, and the incident raised concerns. Regarding how police officers on the frontline handle MIPs, I have the following queries for the government department:

1. Are there any guidelines for frontline police officers to identify MIPs as early as possible and communicate effectively with them?

2. How many MIP-related cases were handled in the Southern District between 2019 and 2020?

3. How does the police guarantee that MIPs’ rights are protected after arrest?

The Chairman is invited to accept this agenda and discuss it in depth at the meeting”

Ms Yuen’s letter to the Chairman was copied to the Secretary.

6.On 16 June 2020, Ms Sum Cheng, Assistant District Officer (Southern)  sent an email to the Security Bureau and the Hong Kong Police Force seeking their views on the Proposed Agenda Item, stating as follows:

“While we are seeking DoJ’s legal advice on whether the proposed agenda item is compatible with the functions of the district council under section 61 of the District Councils Ordinance (DCO), grateful if SB and Police would let us know your views on the proposed discussion of the item at the upcoming SDC meeting. If the above agenda item is considered to be compatible with section 61 of DCO, the SDC secretariat will formally invite Police to provide bilingual written response to Tiffany YUEN’s questions and send representative(s)  to join the SDC meeting. If otherwise, we will inform SDC Chair of the Government’s view and invite him to disallow the proposed agenda item. We will make clear that if he should allow the item to proceed, the SDC Secretariat will refuse to issue the relevant paper, and all Government representatives, including staff of SDC Secretariat, will not participate in the discussion and will withdraw from the meeting.”

7.On 17 June 2020, Ms Joey Lam of the Security Bureau gave a combined reply on behalf of the Security Bureau and the Police to Ms Cheng:

“The arrangements and protocols by the Police in handling Mentally Incapacitated Patients (MIP)  is a territory-wide law enforcement issue without any district angle. For the alleged case taking place in Southern District, the incident, which presumably is still under investigation and may go through judicial processes, should not be discussed in the open. In any event, individual incidents do not fall under ‘matters affecting the well-being of the people in the district’ under the District Councils Ordinance.

While the subject is ultra vires the District Councils Ordinance and should not be discussed at SDC, the Police will provide information on the questions raised for public education purpose.”

8.The Government considered that the three issues raised in Ms Yuen’s letter under the Proposed Agenda Item concerned a territory-wide issue which did not have any particular district angle, and therefore did not fall within the ambit of the functions of a District Council under s 61 of the Ordinance and was ultra vires.  As such, the Proposed Agenda Item should not be discussed at the Meeting (see §25 of the Affidavit of Cheng Kong Chung, District Officer (Southern)  of HAD, the “DO”).

9.Pausing here, it may be noted that the Government has, since 2020[1], “updated” its arrangement on District Administration concerning the functions of and support for District Councils.  The updated arrangement can be seen from the following written answer given by the Secretary for Home Affairs to a question raised by a member of the Legislative Council on 29 April 2020:

“It is specified in section 61 … of the District Councils Ordinance (the Ordinance)  (Cap. 547)  that functions of a District Council (DC)  are to, inter alia, advise the Government on district administration affairs and where funds are made available for the purpose, to promote community, recreational and cultural activities and environmental improvement projects within the district. For the purpose of carrying out its functions, a DC may appoint committees according to section 71 of the Ordinance. DCs and their committees and working groups have to conform to the relevant requirements under the Ordinance in terms of establishment, composition and functions as well as items for discussion.

When handling DC affairs (including whether an item for discussion is compatible with the DC functions specified in section 61 of the Ordinance), District Offices will, as necessary, consult the relevant departments (including the Department of Justice). After taking into consideration advice from the relevant departments, if a proposed committee/working group or item for discussion is found not compatible with the functions specified in the Ordinance, the Government will follow up accordingly, such as writing to the DC Chairman concerned about the problem and request the Chairman to follow-up and re-examine the committee’s terms of reference. If the DC concerned still keeps the terms of reference or items for discussion which are not compatible with the Ordinance, the DC secretariat cannot provide secretariat service for these matters, and secretariat staff or other government officers will neither attend the relevant parts of the meeting nor join the discussion of the relevant papers.”

10.On 23 June 2020, the Secretary sent an email to the Chairman advising that the Proposed Agenda Item should not be included as an item on the agenda for discussion at the Meeting, for the following reasons:

“The SDC Secretariat has received a paper submitted by member Miss YUEN Ka-wai, Tiffany, requesting discussion of an agenda item entitled ‘Request for Information on Cases Involving Mentally Incapacitated Persons Handled by the Southern Police Division’ at the coming 5^th SDC meeting on 2 July 2020.

Your attention is hereby drawn to section 61(a)  of the District Councils Ordinance (Cap. 547), which stipulates that the functions of a District Council are to advise the Government (i)  on matters affecting the well-being of the people in the District; (ii)  on the provision and use of public facilities and services within the District; (iii)  on the adequacy and priorities of Government programmes for the District; and (iv)  on the use of public funds allocated to the District for local public works and community activities. Owing to the fact that the agenda item proposed in the aforesaid paper is concerned about cases of mentally incapacitated persons handled by the Hong Kong Police Force, rather than a matter concerning Southern District at the district level, the Government has reservation about the proposed item as being related to the functions of a District Council set out in section 61(a)  of the District Councils Ordinance.

According to Order 6(5)  of the Southern District Council Standing Orders, the Chairman shall approve the agenda of a meeting of the Council and shall ensure that the agenda item are compatible with the functions of the Council as stipulated in section 61 of the District Councils Ordinance.

On the basis of the aforementioned, it is considered that the aforesaid paper should not be included as an agenda item of the SDC meeting… If the agenda of a meeting contain any item which does not conform with the provisions of the District Councils Ordinance, the Secretariat shall not issue the relevant paper; meanwhile, neither staff members of the Secretariat nor officers of the other departments shall attend the meeting or participate in the discussion of the relevant paper.”

11.The Decision under challenge in the present application for judicial review is embodied in this email of 23 June 2020.  As appears from the Affirmation of Yip Wai See, at §8, the Decision was not made by her as the Secretary of the Council because she was not, in her words, “in a position to make [her] own judgment on behalf of the Government as to whether a proposed agenda item is ultra vires such that secretarial services should or should not be provided”.  It is clear that she acted as directed by the DO (see §7 of Ms Yip’s Affirmation).

12.On 24 June 2020, the Chairman wrote to the Secretary stating that he had decided to approve the Proposed Agenda Item for the following reasons:

“1)  the agenda item clearly relates to the ‘matters affecting the well-being of the people in the District’, especially the well-being of mentally incapacitated persons, the underprivileged group that needs extra attention from the District Council. This rightly fits into the description of the council’s function stipulated on Cap. 547 Sect. 61(a)(i).

2)  Policing is one of the ‘public services within the District’, which fits into Cap. 547 Sect. 61(a)(ii), unless the government is telling the Council that policing is not one of those ‘public services’ anymore.

3)  According to numerous cases in the past, in which the decisions were made by my predecessors, former SDC Chairpersons … they both accepted numerous agenda items that affect the well-being of people in the Southern District & also relate to matters concerning a broader area. On those precedent cases, the HKSARG didn’t sound any disagreements and acted according to the Chairpersons’ decisions.

…

I must reiterate that the incident mention[ed] by Miss YUEN happened to a Southern District resident, and I believe this is the reason why Miss YUEN raised the issue to the council; and if the affected person was not related to the Southern District, I would have already reconsidered whether to accept the agenda item…”

13.After seeking the Chairman’s approval of a draft agenda on 26 June 2020, the Secretary circulated the agenda (“the Agenda”)  for the Meeting amongst the members of the Council, including the Proposed Agenda Item as Item 10 (“Item 10”)  thereof, in the following terms:

“Request for Information on Cases Involving Mentally Incapacitated Persons Handled by the Southern Police Division”

14.However, the Secretary did not circulate Ms Yuen’s letter or any other papers relating to Item 10 ahead of the meeting, or set aside any time for discussion of Item 10 at the Meeting.

15.On 30 June 2020, the Council’s Secretariat sent to the Chairman a draft Chairman’s Brief of the Meeting, in which the Government’s position in relation to Item 10 was repeated.  It was also stated in the draft Chairman’s Brief that in relation to any item on the Agenda which was inconsistent with the provisions of the Ordinance, the Secretariat would not circulate papers relating to, and the staff of the Secretariat and other Government departments would not attend or take part in the discussion of, such item.

16.The Meeting took place on 2 July 2020 at the SDC Conference Room, 1/F, Ocean Court, 3 Aberdeen Praya Road, Aberdeen, Hong Kong. Both the Secretary and the DO, amongst others, were present at the meeting. The Meeting proceeded as normal until Items 9 and 10 were reached.  The Chairman informed the Council members that he would first deal with the “procedural question” of whether Item 10 (as well as Item 9 on the Agenda concerning gambling inside Stanley Prison)  should be allowed for discussion at the Meeting.  At that stage, the DO, the Secretary and other representatives of Government departments walked out of the SDC Conference Room.  An incident occurred which led to the intervention of the Police which it is not necessary to set out in this judgment.  Eventually, the Meeting resumed, and Items 9 and 10 were discussed in the absence of the Secretary.  An audio recording / verbatim note of the discussion was kept by the Chairman.  As the Secretary only returned to the Meeting after the discussion of Items 9 and 10 had ended, she did not keep any minutes or audio recording of the discussion of the Council in respect of those items.  Neither did she upload an audio recording of that part of the proceedings of the Council to the (public)  homepage of the Council.

17.The Chairman, with the support of the Council, considered that the Secretary had acted in breach of various provisions of the Standing Orders, including SO 7(1), (3)  and (4), which I shall further consider below.  On 21 July 2020, the Vice-Chairman of the Council on behalf of the Chairman wrote to the Secretary inviting her to rectify her breaches:

“(a)  Rectify your breaches of the SOs in respect of the meeting of 2^nd July 2020 within the next 14 days, in particular by circulating any relevant papers you then had in hand, by correcting the draft minutes to include the discussion relating to Items 9 and 10 and to prepare and upload a proper audio recording of the latter part of the meeting.

(b)  Confirm within 14 days that items 9 and 10 will [be] returned to the agenda of the Council for its next meeting (we indicate that again the Chairman approve them for that purpose)  and that you will ensure that the members of the Council are fully informed as to those matters by means of papers prepared for the meeting and that you will take no steps to prevent their discussion at the meeting and that you will take, prepare, record and upload minutes of that meeting in accordance with the Ordinance and the SOs.”

18.On 17 August 2020, the Director of Home Affairs replied to the Vice-Chairman’s letter, denying any breach of duty or breach of the Standing Orders on the part of the Secretary.  In that letter, it was also stated that the Government had reservation about the two proposed items (ie Items 9 and 10)  as being related to a function of the Council as set out in s 61(a)  because “the two proposed discussion items are considered as concerning territory-wide issues which did not carry any particular district angle”.

APPLICATION FOR JUDICIAL REVIEW

19.On 14 September 2020, the Chairman made the present application for leave to apply for judicial review of the Decision. Two grounds of judicial review are raised in the Form 86:

(1)  illegality or breach of statutory duty; or

(2)  alternatively, irrationality or Wednesbury unreasonableness.

20.The following declaration is sought by way of relief in the Form 86:

“A Declaration that, pursuant to ss.68 and 69 of the District Councils Ordinance, Cap.547 and the Standing Orders made thereunder, the Secretary of the Southern District Council is bound to circulate papers for and to keep record, prepare and upload the minutes and audio recording of proceedings of the Meeting(s)  of the Southern District Council concerning ‘Request for Information on Cases Involving Mentally Incapacitated Persons Handled by the Southern Police Division’, raised by the Member for Tin Wan and approved by the Chairman for the agenda of such Meeting(s)”.

21.On 3 March 2021, the court granted leave to apply for judicial review after a contested hearing.

22.Between May and July 2021, a host of members, including the Chairman, of the Council left the Council for reasons which are not directly relevant to the present application.

23.On 16 July 2021, upon the application of the Chairman, the court made an order that Mr Paulus Johannes Zimmerman, the Vice-Chairman of the Council, be made a party to these proceedings and that these proceedings be carried on as if he had been substituted for the Chairman as Applicant.

LEGAL FRAMEWORK

24.BL 97 provides that: “District organizations which are not organs of political power may be established in the Hong Kong Special Administrative Region, to be consulted by the government of the Region on district administration and other affairs, or to be responsible for providing services in such fields as culture, recreation and environmental sanitation.”

25.BL 98 goes on to state that the powers and functions of the district organizations and the method for their formation shall be prescribed by law.

26.In 1999, the Ordinance was enacted pursuant to BL 97 and 98.  District Councils, 18 in total, are established pursuant to the Ordinance.  The functions of a District Council are prescribed in s 61, as follows:

“The functions of a District Council are -

(a)  to advise the Government -

(i)  on matters affecting the well-being of the people in the District; and

(ii)  on the provision and use of public facilities and services within the District; and

(iii)  on the adequacy and priorities of Government programmes for the District; and

(iv)  on the use of public funds allocated to the District for local public works and community activities; and

(b)  where funds are made available for the purpose, to undertake -

(i)  environmental improvements within the District;

(ii)  the promotion of recreational and cultural activities within the District; and

(iii)  community activities within the District.”

27.For the purpose of the present case, the relevant functions of the Council are those referred to in s 61(a)(i)  and (ii).

28.Section 66(1)  provides that the Chairman shall preside at meetings of a District Council.

29.Section 68(1)  provides that a District Council may make standing orders for regulating its procedure.  Subsection (2)  goes on to state:

“Without limiting the generality of subsection (1), the standing orders may make provision for -

(a)  times and places of meetings of the District Council or of a committee; or

(b)  the summoning, notices, keeping of minutes of proceedings of meetings; or

(c)  the voting on matters put before a meeting; or

(d)  the determination of any matter by circulation of papers; or

(e)  the preservation of order at meetings.”

30.Section 69(1)  provides that for the purpose of carrying out its functions, a District Council may appoint a public officer to act as the secretary of that District Council.  Subsection (2)  goes on to state that: “A District Council may determine the duties of the person appointed as secretary under subsection (1).”

31.The Standing Orders, which were adopted by the Council on 8 November 2018 based on a model prepared by the HAD and amended in early 2020, contain the following relevant provisions:

“C. DUTIES OF CHAIRMAN AND VICE CHAIRMAN OF THE COUNCIL

6. (5)  The Chairman shall approve the agenda of a meeting of the Council and shall ensure that the agenda items are compatible with the functions of the Council as stipulated in section 61 of the District Councils Ordinance.

D. SECRETARY OF THE COUNCIL

7. (1)  The Secretary shall prepare the agenda, allocate a time slot for each agenda item and set out the maximum number of speeches and duration for each speech in the discussion or debate on an agenda item in respect of a member for each forthcoming meeting of the Council for approval by the Chairman, and shall send the approved agenda and relevant papers to all members. Unless otherwise agreed by the Chairman or by the Vice Chairman in the absence of the Chairman, the notice of a meeting, the agenda and relevant papers shall be issued to members six clear working days before the meeting.

(3)  The Secretary shall prepare the minutes of the proceedings of the Council. The minutes shall record the attendance (including arrival and departure times)  of members, matters discussed and decisions taken. The minutes shall be uploaded to the homepage of the Council except for the closed-door sessions of meetings.

(4)  The Secretary shall prepare audio records of the proceedings of the Council. The audio records should be uploaded to the homepage of the Council except for the closed-door sessions of meetings, in which case, prior consent of the Council must be sought.”

GROUND (1): ILLEGALITY AND BREACH OF STATUTORY DUTY

(i)  The Secretary’s prima facie duty to circulate papers and keep minutes, etc of the meeting

32.On behalf of the Applicant, Mr Nigel Kat, SC argues, under the first ground of judicial review, that the Decision or the carrying out of the Decision by the Secretary:

(1)  was in breach of her duties under ss 68 and 69(2)  of the Ordinance;

(2)  was in breach of the Standing Orders; and

(3)  frustrated the Chairman’s exercise of his statutory powers and duties under s 66(1)  and SO 6(1)  and (5)  to approve and control the agenda for meetings of the Council[2].

33.There cannot be any serious dispute that the Secretary is, generally speaking, under a legal duty to circulate papers, and keep, record, prepare and upload the minutes and audio recording of the proceedings of a meeting of the Council to its homepage:

(1)  Under s 68(1), a District Council may make standing orders for regulating its procedure.

(2)  The Standing Orders are made by the Council under s 68(1).

(3)  Under s 69(2), the Council is entitled to determine the duties of the Secretary.

(4)  Such duties of the Secretary may be prescribed by the Council in the Standing Orders.

(5)  Under s 66(1), the Chairman is responsible for presiding at meetings of the Council, and under SO 6(5), he has the power to approve the agenda for a meeting of the Council.

(6)  Once the Chairman has approved the agenda for a meeting of the Council, the Secretary comes under a duty to:

(a)  send relevant papers in respect of all items appearing on the approved agenda to all members of the Council (SO 7(1));

(b)  prepare minutes of the meeting of the Council recording the matters discussed at the meeting, and upload the minutes to the homepage of the Council (SO 7(3)); and

(c)  prepare an audio record of the meeting and upload the audio record to the homepage of the Council (SO 7(4)).

34.In the present case, on 24 June 2020, the Chairman approved the Proposed Agenda Item to be included as Item 10 on the Agenda for the Meeting scheduled for 2 July 2020.  However, the Secretary failed or refused to:

(1)  send papers relevant to Item 10 (including Ms Yuen’s letter)  to the members of the Council prior to the Meeting;

(2)  prepare the minutes of the Meeting pertaining to the discussion under Item 10;

(3)  upload the minutes of the Meeting pertaining to the discussion under Item 10 to the homepage of the Council;

(4)  prepare an audio record of the Meeting pertaining to the discussion under Item 10; and

(5)  upload the audio record of the Meeting pertaining to the discussion under Item 10 to the homepage of the Council.

35.Hence, subject to the argument that Item 10 concerned a matter or matters which fell outside the ambit of the statutory functions of the Council (ie ultra vires s 61), the Secretary acted, prima facie, unlawfully and in breach of SO 7(1), (3)  and (4).

(ii)  The ultra vires argument

36.On behalf of the Secretary, Mr Benjamin Yu, SC argues that the Secretary was under no duty to circulate papers and keep minutes, etc of the Meeting in respect of Item 10, for the following reasons[3]:

(1)  Under BL 97, it is for the Government, if it wishes, to consult district organizations such as District Councils.  When the Government decides to consult District Council(s), such consultation may extend to territory-wide issues.

(2)  BL 98 stipulates that the powers and functions of a District Council are prescribed by law.

(3)  Section 61 of the Ordinance sets out the functions of District Councils.  That section must, however, be construed in its context, and given a purposive interpretation.

(4)  The context is that the Ordinance establishes District Councils for a total of 18 Districts in Hong Kong as part of the structure of district organizations which are not organs of political power to be consulted by the Government.

(5)  Under BL 73, the Legislative Council shall exercise, inter alia, the following powers and functions, including: (i)  raising questions on the work of the Government (BL 73(5)), and (ii)  debating any issue concerning public interests (BL 73(6)). Territory-wide issues can be discussed and debated at the Legislative Council.

(6)  Section 61(a)  has 4 sub-paragraphs.  Each of them specifies a function of a District Council to advise the Government on matters “in the District” or “within the District” or “for the District”.

(7)  Construed purposively and with reference to context, the functions of a District Council under s 61 do not include tendering advice to the Government on territory-wide issues which do not carry any particular district angle when such advice is not being sought by the Government.  It would be ultra vires for the Chairman and members of the Council to engage in discussions on territory-wide issues which do not carry any particular district angle where the Government has decided not to consult the Council on the same.

(8)  On the facts of this case, Item 10 raised a territory-wide issue with no district angle concerning the Southern District. It is not in dispute that the responsible Bureau and/or Department decided not to consult the Council on that issue.  Therefore, discussing Item 10 would be ultra vires the Ordinance.

(9)  Under s 69(1)  of the Ordinance, a District Council may appoint a public officer to act as secretary “[f]or the purpose of carrying out its functions”.  The Secretary, being a Senior Executive Officer of the Government, would be expected to act in accordance with law.  It is entirely proper for her to refrain from taking part in proceedings of the Council which is ultra vires the Ordinance.

(10)  It follows that it is not unlawful for the Secretary not to circulate papers or to keep record, prepare or upload the minutes or audio recording of discussions which are ultra vires the Ordinance.  Indeed, given that the Secretary is a public officer and the Council’s Secretariat is also staffed by civil servants, it would be an abuse or misuse of public resources for the Secretary to have assisted the discussion of an ultra vires agenda item.

37.Whether any given item on an agenda for a meeting of a District Council its compatible with its functions as stipulated in s 61(a)  depends on (i)  the true construction of that statutory provision, and (ii)  the true nature of the matter(s)  proposed to be discussed under that agenda item.  The former raises a question of law and the latter a question of fact.

38.In relation to the true construction of s 61(a), my views are as follows:

(1)  As with any issue of statutory construction, one must have regard to the purpose and context of the statute in question.

(2)  Regarding the ambit of a District Council’s advisory functions, a convenient starting point is that it is a “consultative” body.  This does not mean, however, that its advisory functions are confined to matters on which the Government chooses or decides to consult it.  Having regard to BL 97, a District Council is a “consultative” body in the sense that it is not an organ of “political power”, and has no executive powers save such as may be conferred on it by law (eg, by s 61(b)).  On the other hand, a District Council is not a mere “passive” body which can only exercise its advisory functions when called upon to do so by the Government.  A District Council is entitled, in my view, to pro-actively exercise its functions under s 61(a).

(3)  Granted that it is the Government’s responsibility to decide and implement district administration and related matters, and that, subject to constraints laid down by the Basic Law or legislation, it is generally for the Government to decide which bodies to consult and on what matters in so far as district administration is concerned, the fact remains that the Government and the Legislative Council have decided, or chosen, to establish District Councils under the Ordinance, and confer on them the advisory functions set out in s 61(a), as permitted by BL 97 (see Chan Shu Ying v Chief Executive of the HKSAR [2001] 1 HKLRD 405).  Having so conferred those functions on District Councils, it is not open the Government to deny them at will save by amending or repealing the relevant provisions of the Ordinance.

(4)  A District Council’s functions to advise and the Government’s duty (if any)  to consult are not necessarily concomitant.  The ambit of a District Council’s advisory functions is not defined by the ambit of the Government’s duty (if any)  to consult, but depends on the true meaning and effect of s 61.

(5)  For the same reason, in the determination of whether a matter falls within the advisory functions of a District Council, it is nothing to the point that the matter can also be discussed and debated at the Legislative Council.

(6)  These having been said, it is clear that a District Council’s advisory functions are confined to “district” affairs.  That this is so is plain from the wording of s 61(a).  Each of the 4 sub-paragraphs of that sub-section refers to a function of a District Council to advise the Government on matters “in”, “for” or “within” the relevant District, or on the use of public funds allocated to the relevant District for “local” public works and community activities.

(7)  A district issue does not become any less so just because it is also a territory-wide issue, or is relevant to all 18 Districts in Hong Kong, eg issues such as inadequate public car parking spaces, unhygienic public toilet facilities, or insufficient public open spaces or playgrounds in a District would plainly fall within the ambit of the advisory functions of the District Council of that District even though these are also territory-wide issues to be tackled.

(8)  That District Councils have a role to play in respect of territory wide issues have been consistently recognized by the Government:

(a)  In the Fact Sheet on District Administration issued by HAD dated September 2020, the following is stated:

“The Role of District Councils: DCs play an essential advisory role on district matters and issues affecting the whole of Hong Kong as appropriate.”

(b)  In Chan Shu Ying v Chief Executive of the HKSAR [2001] 1 HKLRD 406, at §54, Hartmann J (as he then was)  recorded what was said by the former Secretary for Constitutional Affairs in an affidavit, as follows:

“The Secretary for Constitutional Affairs, Mr Suen Ming Yeung, in an affidavit sworn in support of the Respondent, says the following concerning the role of these councils:

‘District Councils play an essential advisory role on district matters and issues affecting the whole of the HKSAR. In particular, they advise the Government on matters affecting the well-being of the people, the provision and use of public facilities and services, on the adequacy and priorities of Government programmes, and on the use of public funds in their respective districts. They also reflect local views to the relevant Government bureaux and departments.

It is the Administration’s practice to consult the District Council of a district on matters which are likely to affect the livelihood, living environment or well-being of residents within the district. The Government has regularly and frequently consulted the District Councils on both district issues (such as the impact of the Government’s 1998 squatters policy, allocation of secondary school places for primary 6 pupils, the noise problem of the Tsuen Wan MTR Depot)  and territory-wide issues (such as the implementation of the Government’s policy of having one social worker for each secondary school, tourism development, labour rights and protection).’” [emphasis added]

(c)  In the Home Affairs Bureau’s Consultation Document entitled “Review of the Role, Functions and Composition of District Councils” released on 27 April 2006 and provided to the Legislative Council, the following is stated:

“Existing Role and Functions of DCs

1.14 While the role and functions of DCs have mainly been advisory, the Government sees the DCs as its key partners on district matters. Departments have been consulting DCs on major local matters as well as territory-wide issues that are likely to affect the livelihood, living environment or well-being of the residents in the district. Departments in general strive to develop a close working relationship with the DCs.

Existing Involvement of DCs in District Management

2.2  DCs play a pivotal role in the District Administration Scheme. They monitor the provision and delivery of district services, and advise the Government on matters relating to the local community. They are also consulted on territory-wide issues…” [emphasis added]

(d)  In the Controlling Officer’s Report on the Estimates for the 2020-21 Budget in respect of “Head 63 - Home Affairs Department”, there is a budgetary provision for consultation with District Council on “territory-wide” issues:

“3 The Department is responsible for the policy and implementation of District Administration Scheme. Through its 18 district offices, it advises bureaux and departments in mapping out strategy for consultation with District Councils (DCs)  on both district and territory-wide issues …”

Figures for “DC consultations” in respect of “territory-wide issues” for 2018 (Actual), 2019 (Actual)  and 2020 (Estimate)  are also given.

(9)  On the other hand, the mere fact that a territory-wide policy or practice of the Government or a Government department is being applied to a District cannot be used as a springboard by the District Council of that District to start debating and proffering advice to the Government or Government department on the merits of the policy or practice, or whether and if so how it should or may be improved or modified, although I can see no reason why it would be beyond the ambit of its functions to discuss the actual application of the policy or practice in the District.

(10)  It is, I consider, neither helpful to seek to paraphrase the provisions of s 61(a)(i), (ii), (iii)  and (iv), nor possible to seek to formulate a simple test for determining whether any given item on an agenda for a meeting of a District Council is compatible with the functions of that Council as stipulated in s 61(a).  It is necessary, in each case, to consider the true nature of the matter proposed to be discussed, and ask whether it may properly be said to fall within one or more of the specific functions of a District Council under s 61(a)(i), (ii), (iii)  or (iv).

(11)  Lastly, I do not consider that the chairman of a District Council is the final arbiter of this question.  If, notwithstanding the chairman’s view, upon a proper analysis, a matter falls outside the ambit of a District Council’s advisory functions under s 61(a), the secretary is not, I consider, legally bound to act as if it were compatible with the functions of that Council as stipulated in s 61(a).

(iii)  Item 10 on the Agenda

39.In this case, Item 10 is worded as a “Request for Information on Cases Involving Mentally Incapacitated Persons Handled by the Southern Police Division”.  On the face of it, this item would be concerned with matters “affecting the well-being of people in the District” or “the provision and use of … services within the District” within the meaning of s 61(a)(i)  and (ii)  respectively.

40.It is, however, necessary to look more closely into what were the actual matters intended to be discussed under Item 10.  As earlier noted, in Miss Yuen’s letter to the Chairman dated 14 June 2020, she intended to raise the following queries for “the government department” (presumably a reference to the Police):

“1. Are there any guidelines for frontline police officers to identify MIPs as early as possible and communicate effectively with them?

2. How many MIP-related cases were handled in the Southern District between 2019 and 2020?

3. How does the police guarantee that MIPs’ rights are protected after arrest?” (hereinafter referred to as the “1^st, 2^nd and 3^rd Issues” respectively, and the “3 Issues” collectively)

41.In my view:

(1)  Whether it is within the Council’s statutory functions to discuss the 1^st Issue at the Meeting depends on the purpose for which the Council sought the information referred to in that issue.  If the Council sought details of the relevant guidelines as a step towards ascertaining whether they were properly followed or applied in the MIP Case (subject to the question of whether it was proper or appropriate to do so at that time bearing in mind that the MIP Case was then still sub judice)  or in some other relevant cases which had occurred in the Southern District, I do not consider such discussion would fall outside the ambit of the Council’s functions under s 61(a).  On the other hand, if the true intent or purpose of seeking the information was to enable the Council to discuss generally on whether the guidelines were appropriate or adequate, or how they could be improved, such discussion would, I believe, be outside the Council’s functions under s 61(a).

(2)  Issue 2 raises a straightforward statistical question concerning the number of MIP-related cases that were handled (by the Police)  in the Southern District between 2019 and 2020, and seems to me to clearly fall within the Council’s functions under s 61(a).

(3)  Issue 3 raises a general question concerning how arrested MIPs’ rights are “guaranteed” by the Police, which I consider would prima facie fall outside the ambit of the Council’s functions under s 61(a).

42.The problem, or difficulty, in this case is that neither the Secretary nor the Chairman made any attempt to clarify the scope of the matters intended to be discussed under Item 10, or agree on the scope of the permissible discussion, at the Meeting.  On the basis that the proposed discussion under Item 10 was intended to relate to the 3 Issues only, I am of this view that some aspects of the proposed discussion would be within, while some aspects would be, or would likely be, outside, the functions of the Council under s 61(a).  I shall come back to this matter later when I consider the question of what, if any, relief should be granted in this application.

GROUND (2): IRRATIONALITY

43.This ground can be dealt with briefly.  Whether the Secretary was, or was not, under a duty to circulate papers, and keep, record, prepare and upload the minutes and audio recording of the proceedings of the Meeting of the Council in respect of Item 10 is a question of law.  Either she was and failed to carry out her legal duty, or she was under no such duty. In my view, the real issue in this case is legality, not reasonableness.

CONCLUSION AND DISPOSITION

44.While there were aspects of the intended discussion under Item 10 which would fall within the advisory functions of the Council under s 61(3), there were other aspects which would, or would likely, fall outside those functions.  It is not justifiable to grant a declaration in the general form sought by the Applicant (see §20 above).  It is questionable whether it would serve any useful or practical purpose for the court to exercise its declaration to grant any declaratory relief in this application, taking into account that the present judgment has already set out this court’s views on the various issues raised in this application, and the situation in the present case will unlikely recur in the future.  My provisional view is to make no substantive order on this application for judicial review.  Since I have not heard submissions from counsel on the issue of relief, I would give liberty to the parties to file and exchange submissions on relief (limited to 5 pages)  within 21 days from the date of this judgment.  The question of relief shall be dealt with on paper.

45.In relation to the question of costs, I have in substance upheld part and rejected part of the Applicant’s complaint.  The fair order to make, I consider, is that there be no order as to costs of these proceedings (including all previously reserved costs).  I so order.

Mr Nigel Kat, SC and Mr Azan Marwah and Mr Josh Baker, instructed by Ho, Tse, Wai & Partners, for the Applicant

Mr Benjamin Yu, SC and Mr Anthony Chan, instructed by Department of Justice and Ms Jess Chan, Senior Government Counsel, for the Respondent

[1]  See Section A, §§6-8, of the Affirmation of Yam Howard.

[2]  See §2 of the Skeleton Submissions of the Applicant.

[3]  See §§2-11 of the Skeleton Submissions for the Respondent dated 12 July 2021.