Ng King Luen v. Rita Fan

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

AL NO. 39 OF 1997

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Date of Judgment: 12 June 1997 at 2.30 pm

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JUDGMENT

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1. I gave judgment last September in a case where the civil servants were challenging the Government over the restriction imposed on them to serve on the selection committee and I said this, "One of the unusual features of the transfer which this case has highlighted is the establishment of the Provisional Legislature. There is no doubt that it will be established once the Chief Executive is known. The Hong Kong Government and the British Government consider it unnecessary and conflicts with the basic law. China disagrees. This appears to be the major source of concern likely to affect Hong Kong in the next few months. It is not my function to say whether this Provisional Legislature is or is not necessary or is or is not legal". I at least prophesied some of the problems that were going to arise. In Hong Kong, we have an elected Legislative Council which acts in accordance with a variety of ordinances which govern their duties and persons who are permitted to serve on them. What has happened because of the political impasse between the British and Hong Kong Government on the one side and the People's Republic of China on the other is that the current Legco will cease at midnight on June the 30th. It was therefore thought right by the People's Republic of China that there should be put into place a Provisional Legislature which will operate from July 1st up until the moment when a council elected in accordance with basic law comes into being.

2. However, the establishment of this Provisional Legislature has already taken place. It sits at the moment in China in Shenzhen. It has a president, a lady by the name of Mrs Rita FAN who is a well-known Hong Kong politician. It has a number of members who are addressed as "honourable" as though they were Legco members. It has meetings, minutes and has been passing bills.

3. What this applicant is seeking to do is in some way to involve the court in the political conflict that is taking place between the British Hong Kong side and the Chinese side. Courts are not concerned with political matters. They are solely concerned with issues of law. This application is made in the format of what is called a judicial review. This is an important provision because it enables citizens to come to court to challenge decisions of inferior tribunals or inferior courts where they have suffered injustice, and I have presided over a large number of these applications, some involving immigration matters, some involving matters as far as buildings are concerned or land, the variety of functions of Government where a citizen says, "I have not had a fair hearing" or "I have had an unlawful hearing" or "An official has acted beyond his powers and deprived me of something to which I am lawfully entitled". In those cases the courts listen to the arguments that are placed before them and try to come to a fair decision.

4. This is a challenge to a body of persons currently meeting in China. The applicant Mr NG King-luen is 74. He is obviously a very honourable man. He takes his civic obligations, he says, seriously. He has voted in the elections and he is a secretary of the 'Tung Heung Wui', a society for Hong Kong residents who come from a particular county of China. He is put forward here as the applicant. It may well be he was specifically chosen because he qualified for Legal Aid and therefore the public are funding this application.

5. One of the important provisions of judicial review is that if someone is being challenged, that person must have sufficient interest to bring it to court. Generally speaking, it is a person who is adversely affected by a particular decision. So, for example, a Vietnamese illegal immigrant who considers he has been wrongfully detained brings his case to court or Hong Kong citizens who think they have been wrongly treated or unfairly treated bring their complaints to court.

6. However, this matter, which is said to raise important constitutional matters, if that were the position, should have been brought by the Attorney General of Hong Kong. The Attorney General is the legal spokesman for the Hong Kong Government. If he thought that the Provisional Legislature was acting contrary to the law, I am sure that he would have brought proceedings here, but he has chosen not to do so. What it appears to me is that this applicant is seeking to utilise the court to promote his own particular political interest.

7. I am not satisfied he does have sufficient interest to bring an application for judicial review, but even if I assume in his favour that he does, I can find nothing unlawful which the Provisional Legislature has done. They have been sitting in China. My jurisdiction does not go to China. I cannot stop people doing anything in China, whether they are attending a football match or having a political meeting. My jurisdiction is only over what takes place in Hong Kong.

8. In my judgment, there is nothing unlawful in having a group of persons calling themselves whatever name they choose sitting in China passing what are said to be bills. I accept that it has all the hallmarks of another; in other words an alternative Legco. It is a formal meeting. It has formal proceedings albeit some of their proceedings may be dealt with more quickly than Legco in Hong Kong. It has a president. I cannot find that that is in any way unlawful.

9. To utilise judicial review, one has to identify some decision of an inferior tribunal or some Government body which can be said to be unlawful. In this application when I look at the notice of the application, it says, "Judgment, order, decision or other proceeding in respect of which relief is sought" and what is said is "The usurpation by Mrs Rita FAN and others of the offices of Legislative Councillors of deliberating upon and passing bills, contrary to the provisions of two articles of the Letters Patent". For anyone who acted contrary to the Letters Patent I am sure the Attorney General would have come to court within a few hours.

10. I cannot find that Mrs Rita FAN has usurped anything. She has carried out what she considers her duties and, as I said before, the court should not get involved in the conflict between the British/Hong Kong side and the Chinese side over this particular body.

11. I accept that there may well be problems in the future - and I put it no higher than that - as to the legality of certain amendments to our ordinances which may be passed after July the 1st, for example, the Public Order Amendment Bill which was passed by the Provisional Legislature. The arrangments for public processions for persons to give notices prior to July the 1st. That of course is impossible because this would not become law until July the 1st and that has been recognised by a recent alteration to that order so that the Commissioner of Police is given power himself either to object or not to object under new arrangements.

12. Essentially, the judiciary here is being utilised so that it would become involved in this political conflict and it would have to promote in one way or another the political interests of Mr Martin LEE's client, the democratic party, or those who operate the Provisional Legislature. That is wrong because that would involve and threaten the independence of the judiciary. Whatever personal views one has about these matters, judges must stand back from this type of political conflict. A judge's duty is only to be concerned with those who break the law, either in criminal matters or break the law in civil matters.

13. I do not consider that what the Provisional Legislature has done should in any way be supervised by this court. Judicial review essentially is a power of the High Court to supervise officials, Government officers, a variety of persons who act contrary to the law. In my judgment it would be wholly wrong for a judge here to seek to supervise this Provisional Legco operating as it does in China. It is not necessary to decide, but I do not think that it would be doing anything unlawful if it were to meet in Hong Kong, but presumably it has deliberately decided to meet outside Hong Kong to prevent any potential conflict with the law.

14. My role here on granting leave, as Mr Martin LEE, Q.C., so eloquently, as he always does, has set out, is whether or not there has been shown the existence of matters which might demonstrate on further consideration an arguable case. In my judgment, there is no arguable case here. This application is doomed to failure. I have no jurisdiction over Mrs Rita FAN or any of her Legco members. I have no power to order them to do anything or to refrain from doing anything.

15. If in the future this applicant, or any other citizen of Hong Kong considers that a law is unlawful matter and they are prosecuted for an unlawful law, they can raise the matter in court. Then the judge would consider whether or not that law is indeed a lawful one. I recognise the depth of feeling which this sort of conflict brings about. It is similar to the depth of feeling that people have of different political persuasions. One person thinks a party is marvellous, another thinks it is dreadful, but that is political life, and judges must not get involved in that sort of situation.

16. The conclusion therefore I have come to is that this application is bound to fail. It has no chance of success at all and I would be wrong to permit further public expense and further judicial time being spent on it. The application is refused

Representation:

Mr Martin LEE, Q.C., and Mr Johannes CHAN, instructed by Ho Tse Wai & partners (DLA) for the Applicant.