Re Wong Chung Ki and Another

HCAL000151/1999

HCAL151/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST NO.151 OF 1999

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Coram : Hon Stock J in Court

Date of Hearing : 23 December 1999

Date of Judgment : 23 December 1999

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J U D G M E N T

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1. This is an application for leave to apply for judicial review. The first applicant is a member of the Provisional Urban Council, and the second applicant is a member of the Provisional Regional Council. They have been councillors since 1995, first of the Urban and Regional Councils, and then of the Provisional Council which were established with effect from 1 July 1999.

2. The decisions which it is sought to impugn in these proceedings are :-

1. The decision of the Chief Executive to assent to the Provision of Municipal Services (Reorganisation) Ordinance 1999 which I shall refer to as the "Reorganisation Ordinance"; and

2. The decision of the Secretary for Constitutional Affairs to bring that Ordinance into effect on 1 January 2000.

3. The relief sought is a declaration that the Reorganisation Ordinance is inconsistent with art.25 of the International Covenant on Civil and Political Rights ("ICCPR"), and with arts.97 and 98 of the Basic Law; an order of certiorari to quash the decision of the Chief Executive to give assent to the Bill; alternatively to those two forms of relief, a declaration that the abolition of the Provisional Council is inconsistent with the decision of the National People's Congress on the Methods of Formation for the First Government and First Legislative Council of the Hong Kong Special Administrative Region, a decision which is incorporated into the Basic Law by virtue of art.68 of the Basic Law.

4. The application for leave is opposed, and I agreed to hear the putative respondents in answer to the application.

5. The applicants' case runs broadly as follows : that the two Provisional Councils were established as successors to the Urban and Regional Councils in order, as did their predecessors, to provide municipal services in Hong Kong. It is said in the grounds of the application that both bodies, that is both Provisional Councils, "comprise largely elected members". The Reorganisation Ordinance when enacted will abolish these Councils by repealing the Provisional Urban Council Ordinance and the Provisional Regional Council Ordinance. Those two councils are entrusted to exercise powers and perform duties under ordinances providing for matters of public health, waste disposal, and liquor licensing; and to provide facilities for recreation, entertainment and cultural activities.

6. The Hong Kong Government, after a period of consultation, has decided that a reorganisation for the provision of these facilities was desirable, and it is proposed under the Reorganisation Ordinance to transfer the functions of the two Councils to other bodies, including government departments. So, for example, I am told, food safety and environmental hygiene responsibilities are to be transferred to a new bureau known as the Environmental and Food Bureau. There is to be an Arts Development Council with members appointed by the Government, and some functions are to be transferred to the newly created District Councils.

7. The grounds advanced in support of the application are as follows.

8. Article 25 of the ICCPR provides in so far as is relevant :

"Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions :

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) ... "

It is said by the applicants that the conduct of public affairs is a broad concept that includes participation in policy formulation at local levels in such matters as health, culture, sports and recreation. It is then said in the application :

"The two municipal councils comprise largely of elected members returned by geographical constituency election on universal and equal adult suffrage."

In this way, Hong Kong permanent residents are said to partake at present, at least until 1 January 2000, in the conduct of public affairs. To that extent, at least, the requirements of art.25 of the ICCPR - to which, as I should have already stated, effect is given by art.21 of the Hong Kong Bill of Rights Ordinance, and should be given, it is said, by art.39 of the Basic Law - to that extent, it is said that the requirements of art.25 are thus far fulfilled. But the right thus enjoyed will, it is argued, be taken away by the repeal of the two Ordinances, by the abolition, in other words, of those elected councils. Hong Kong residents will no longer have a right to participate in such public affairs. In so far, say the applicants, that the abolition is said to be a restriction of the right to take part in public affairs, it is an unreasonable and disproportionate restriction. It is conceded by the applicants that art.25 does not mandate a particular form of government, but rather that there must be some effective opportunity to enjoy the rights which that article seeks to protect.

9. There is, in my judgment, a fundamental flaw in this ground of challenge. It is that neither council has an elected membership by virtue of the Ordinances which are to be repealed.

10. Section 6(1) of the Provisional Urban Council Ordinance provides as follows :

"(1) The Council consists of not more than 50 members appointed by the Chief Executive for the term set out in their appointment but not later than 31 December 1999."

Section 6 of the Provisional Regional Council Ordinance has the same provision.

11. Now it is said that, even though the Ordinances which came into effect on 1 July 1997 made provision for appointed and not elected membership, that is to ignore reality, because those who were appointed were in fact those who had previously been elected; and that what the new Ordinance does (i.e. the Reorganisation Ordinance), is to entrench, as it were, non-representation to remove such connection as there was with public participation. But the point is this, in my opinion : does the new Ordinance take away a right which in law was there before its enactment? And to that question there can, in my judgment, be but one answer, and the answer is 'no'. The lack of such a right in law is emphasised when we examine the decision of the Standing Committee of the National People's Congress made under art.160 of the Basic Law and adopted on 23 February 1997. Annex I stipulated which ordinances were not in accordance with the Basic Law and were therefore not to be adopted as laws of Hong Kong; and Annex II stipulated which provisions in ordinances contravened the Basic Law and were not to be adopted, and, in so far as is relevant to this case, included in those contravening provisions are "provisions relating to election in the Urban Council Ordinance and provisions relating to election in the Regional Council Ordinance". (Emphasis added) Whatever was the position before 1 July 1997, the abolition of the Councils now does not remove a right of participation through an elected body, and that is because that right disappeared in July 1997. That abolition cannot therefore be said to be contrary to art.25 of the ICCPR. A complaint that there is, or may be, no form of direct public participation in the conduct of municipal governmental affairs - though I do not adjudge to what extent the new District Councils may provide such participation - such a complaint is a matter quite different from a complaint that an existing right has been removed.

12. I move to the second ground. It is said that the abolition of the Councils contravenes arts.97 and 98 of the Basic Law. Those articles provide as follows :

"Article 97

District organizations which are not the organs of political power maybe established in the Hong Kong Special Administrative Region, to be consulted by the government of the Region on district administration and other refers, or to be responsible for providing services in such fields as cultural, recreation and environmental sanitation.

Article 98

The powers and functions of the district organizations and the method for their formation shall be prescribed by law."

13. Now neither article requires the establishment of district organisations, nor mandates the form of district organisations. They are empowering provisions and that can be discerned from the permissive word 'may' and its contrast with words of obligation to be implied in many other articles of the Basic Law. For example, the Basic Law requires the establishment of the Legislative Council. Section 3 of the Basic Law makes that self-evident. And I agree with the contentions of Mr Yu, SC, who appears for the putative respondents, as those contentions are reflected in his skeleton argument, that even if art.97 is mandatory in intention, it does not require the establishment of district organisations which are responsible for providing municipal services; the article's requirements would be fulfilled if such an organisation were established as an organ for consultation by the government of the Region on district administration and other affairs. I note in this regard that there are now established District Councils which are largely elected and are consultative bodies. I would add that art.25 of the ICCPR cannot, in my judgment, impose a construction on art.97 for which the applicants contend.

14. Under this head of argument, the applicants rely on the Interpretation of the Standing Committee of the National People's Congress of 26 June 1999. They rely on it because they say that that Interpretation stipulated that there shall, in discovering the intention of the Basic Law, be taken into consideration decisions of the Preparatory Committee, and in this regard they refer me to a decision of the Preparatory Committee of 1 February 1997. That was a decision entitled "Decision of the Preparatory Committee for the Hong Kong Special Administrative Region of the National People's Congress on the Establishment of Provisional Municipal Organisations of the Hong Kong Special Administrative Region". The Decision contains the following passages :

"Pursuant to that Decision, before the formation of the first Municipal Organizations of the Hong Kong Special Administrative Region, the Preparatory Committee for Hong Kong Special Administrative Region of the National People's Congress resolves that :

1. ....

2. The Preparatory Committee ... hand over its 'Proposal on the establishment of Provisional Municipal Organizations of the Hong Kong Special Administrative Region' to the First Chief Executive so that he can make reference to that Proposal in organizing the Provisional Municipal Organizations."

And there is there set out in the Annex such proposals, which include the following proposal :

"2. Terms of the Provisional Regional Organizations

- the terms of the Provisional Municipal Organizations will expire upon the formation of the first Municipal Organizations. The time of formation of the first Municipal Organization shall be decided by Government of the Hong Kong Special Administrative Region."

15. So it is said that the Preparatory Committee envisaged the existence of the First Regional and First Urban Councils once the lives of the Provisional Councils had expired. From that I am invited to read into arts.97 and 98 the intention that the Provisional Councils would be replaced by the Urban and Regional Councils, and would not be abolished. There was, in other words, it is said, by virtue of arts.97 and 98, as evidenced by the intention expressed in the Preparatory Committee's decision, a requirement for the Councils.

16. In my judgment, the Preparatory Committee was doing no more than making proposals to the Chief Executive on the establishment of these organisations and assumed, rather than required, that after the term of office of the Provisional Councils, they would be replaced by similar Councils. The Preparatory Committee was not, in my judgment, purporting to interpret either art.97 or art.98.

17. Furthermore, there is no reference in the Interpretation of 26 June 1999 to this Decision of the Preparatory Committee, and there has been no interpretation by the Standing Committee of either art.97 or art.98. What is more, and what is central, is that in interpreting the two articles, I apply common law cannons of construction; and nothing in the application of those cannons could, in my judgment, lead me to the interpretation for which the applicants contend.

18. It follows that I find that there is no argument open to the applicants that the enactment of the Reorganisation Ordinance is inconsistent with the plain or legal meaning of arts.97 or 98 of the Basic Law.

19. The alternative argument of the applicants is that the abolition of the Councils will mean that there will be two members of the Legislative Council purporting to fill functional constituency seats, who will, however, have no constituency to represent.

20. Article 68(3) of the Basic Law provides that :

" The specific method for forming the Legislative Council and its procedures for voting on bills and motions are prescribed in Annex II : 'Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures."

Annex II to the Basic Law requires that the Legislative Council shall be composed of 60 members and that "in the first term the Legislative Council shall be formed in accordance with the 'Decision of the National People's Congress on the method for the formation of the First Government, and the First Legislative Council of the Hong Kong Special Administrative Region'".

21. According to the decision of the National People's Congress, there is a requirement that 30 members must be returned by functional constituencies. The First Legislative Council was formed in 1998 and its term, which is two years, expires in June 2000. The Provisional Regional Council and Provisional Urban Council constitute two of the functional constituencies. Each returns one member to the Legislative Council. It follows, say the applicants, that between 1 January 2000 when the Reorganisation Ordinance comes into effect, two of the functional constituencies will disappear. But it is implicit in the election system, according to this argument, that the functional constituencies shall remain unchanged during the term of the Legislative Council. The right to elect a member for the whole term of office is a right which is said to be protected by art.25 of the ICCPR.

22. The point is, I think, superficially attractive, but there are two points made against it, each of which I believe is unassailable. First, the Decision of the National People's Congress requires no more than that 30 members be returned by functional constituencies and that has happened; and secondly, and more significantly in my judgment, the term of office of the applicants as members of the Provisional Urban Council and the Provisional Regional Council were to expire in any event on 31 December 1999. That is so by reason of the express terms of section 6 of the Provisional Urban Council Ordinance and section 6 of the Provisional Regional Council Ordinance. There can, therefore, in any event, be no representation of constituents as members of these two councils after 31 December 1999. That is a product of the provision of the two Ordinances. The Reorganisation Ordinance does not, in other words, take away anything that is not already taken away by section 6 of the two Ordinances. There is a lacuna, it would seem, but that is a result of the gap created by section 6 of each of the two Municipal Ordinances and the fact that the term for the present Legislative Council expires in June 2000. It is not the result of enactment of the Reorganisation Ordinance. There is, therefore, nothing, in my judgment, in this ground.

23. In considering whether to grant leave, I should ask myself whether the material before me discloses matters which, upon further consideration, might demonstrate an arguable case for the grant of the relief claimed (see Ho Ming Sai v. Director of Immigration [1994] 1 HKLR 21).

24. For the reasons I have provided, I am satisfied that that threshold is not crossed by the applicants, and that there is indeed no case demonstrated fit for consideration. Accordingly, leave to apply for judicial review of the decisions under challenge is refused.

[Submissions on Costs]

25. The putative respondents make an application for costs of this application. I have jurisdiction to make such an order, even though they have not formally been made respondents. Mr Chan asks me to say that there should be no order as to costs on the basis that the matters raised are matters of general public interest which have rightly been canvassed before the court and that the applicants have no private interest in the outcome of the case.

26. The normal order in such an event would be that costs should follow the event, and the kind of order which Mr Chan invites me to make, on the footing which he invites me to make it, is one which should be made only in exceptional circumstances. One of the factors to which a court should have regard, in my judgment, is the apparent strength of the case. Given my judgment that the low threshold for leave has not been crossed, I take the view, in all the circumstances, that the normal order should follow. I shall order that the applicants pay to the respondent its costs of and occasioned by the application, to be taxed if not agreed.

Representation:

Mr Johannes Chan, instructed by Messrs Ho, Tse, Wai & Partners, for the Applicants

Mr Benjamin Yu, instructed by the Department of Justice, for the Putative Respondents

Remarks:
On appeal by the 2nd Applicant to the Court of Appeal: Appeal allowed. 2nd Applicant is granted leave to apply for judicial review. Please refer to CACV000001/2000.