Wong Chung Ki and Another v. The Chief Executive and Another

CACV000001/2000

CACV 1/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1 OF 2000

(ON APPEAL FROM HCAL NO. 151 OF 1999)

______________

______________

Coram: Godfrey V-P, Rogers JA and Keith JA in Court

Date of Hearing: 20 June 2000

Date of Judgment: 20 June 2000

_______________

J U D G M E N T

_______________

Keith JA (giving the first judgment at the invitation of Godfrey V-P):

Introduction

1. Hong Kong's two municipal councils were abolished at the beginning of this year. Their functions were transferred to other bodies. Those bodies were not elected bodies. That was believed by the Applicants to be contrary to various provisions in the International Covenant on Civil and Political Rights ("the ICCPR"), the Basic Law and the Bill of Rights. Accordingly, an application for leave to apply for judicial review of the decisions which resulted in local government in Hong Kong being in the hands of non-elected bodies was lodged. That application was dismissed, and one of the Applicants now appeals to the Court of Appeal.

The relevant facts

2. The Urban Council and the Regional Council used to be Hong Kong's two municipal councils. The Urban Council's functions covered Hong Kong Island and Kowloon, and the Regional Council's functions covered the New Territories. The two councils provided a wide range of municipal services, including environmental public health, recreational amenities and various cultural services. As a result of reforms introduced in 1994, both councils consisted only of elected members returned on a geographical basis by universal and equal adult suffrage. Both councils ceased to exist when sovereignty over Hong Kong was resumed by the People's Republic of China on 1 July 1997.

3. The two municipal councils were replaced by the Provisional Urban Council and the Provisional Regional Council. The abolition of the previous municipal councils and the creation of these provisional municipal councils were effected by amendments to the Urban Council Ordinance (Cap. 101) and the Regional Council Ordinance (Cap. 385). These Ordinances were renamed the Provisional Urban Council Ordinance and the Provisional Regional Council Ordinance.

4. The membership of the provisional municipal councils was provided for by section 6(1) of the Ordinances as amended. They were to consist of not more than 50 members each, who were to be "appointed by the Chief Executive for the term set out in their appointment but not later than 31 December 1999". Thus, whereas members of the previous municipal councils were all elected by universal suffrage, members of the provisional municipal councils were all appointed. However, the persons appointed by the Chief Executive included all the persons who had been elected to the previous councils, and who were still in office on 30 June 1997.

5. In due course, the Government decided that municipal councils should be dispensed with, that the two provisional municipal councils should be abolished, and that their functions should be transferred to other bodies. Those bodies were not elected bodies. Its proposals were contained in the Provision of Municipal Services (Reorganisation) Bill ("the Bill"), which was passed by the Legislative Council on 2 December 1999. Although passed by the Legislative Council, the Bill would only have the force of law once it had been assented to by the Chief Executive and once it had come into operation. Clause 1(2) of the Bill provided that it would come into operation on a date to be appointed by the Secretary for Constitutional Affairs. The Constitutional Affairs Bureau had stated the target appointed date to be 1 January 2000.

The application for leave to apply for judicial review

6. The short interval between the date on which the Legislative Council passed the Bill (2 December 1999) and the date on which it was likely to come into operation as an Ordinance (1 January 2000) meant that any application for leave to apply for judicial review had to be made quickly. In the event, the application was filed in court on 6 December 1999. The Applicants were members of the provisional municipal councils. The 1st Applicant had been elected a member of the Urban Council in 1995, and had been appointed to serve on the Provisional Urban Council. The 2nd Applicant had been elected a member of the Regional Council in 1995, and had been appointed to serve on the Provisional Regional Council. Their application sought an order of prohibition restraining the Chief Executive from giving his assent to the Bill. However, if he had already given his assent, it sought an order of certiorari quashing his decision to give his assent to the Bill.

7. Three grounds were advanced for asserting that the Chief Executive should not assent, or should not have assented, to the Bill. First, the transfer of the provisional municipal councils' functions to non-elected bodies was said to contravene the ICCPR as applied to Hong Kong by the Bill of Rights. Secondly, the abolition of municipal councils was said to contravene Arts. 97 and 98 of the Basic Law. Thirdly, the Bill would result in no functional constituencies for the provisional municipal councils after 31 December 1999, and the absence of these functional constituencies for the first six months of 2000 was said to be inconsistent with the combined effect of (a) Annex II of the Basic Law and (b) the decision of the National People's Congress adopted on 4 April 1990 on the Method for the Formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region.

8. The Notice of Application had requested an oral hearing of the application. The hearing took place before Stock J. The Respondents, namely the Chief Executive and the Secretary for Constitutional Affairs, were represented. Stock J dismissed the application on 23 December 1999. Within a couple of weeks, a Notice of Appeal was lodged on behalf of the Applicants. However, the 1st Applicant has abandoned her appeal and it has accordingly been dismissed. The appeal is being pursued, therefore, only by the 2nd Applicant in relation to the abolition of the Provisional Regional Council and the transfer of its functions. For convenience, I shall refer to her as the Applicant. To complete the history, after the dismissal of the application, the Bill acquired the force of law. It became the Provision of Municipal Services (Reorganisation) Ordinance (Cap. 552) ("the new Ordinance"), and came into operation, as expected, on 1 January 2000.

Non-elected bodies

9. The provision which the transfer of the functions of the Provisional Regional Council to non-elected bodies is said to contravene is Art. 25 of the ICCPR, as applied to Hong Kong by Art. 21 of the Bill of Rights. Art. 25 of the ICCPR provides (so far as is material):

"Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions, .... to take part in the conduct of public affairs, directly or through freely chosen representatives ...."

The language of Art. 21 of the Bill of Rights is identical, save that the words "permanent resident" replace the word "citizen".

10. The Applicant's case is that the phrase "the conduct of public affairs" includes local government, i.e. the formulation and implementation of policies relating to local services of the kind provided by the municipal councils. It is not contended that Hong Kong permanent residents should be entitled to participate directly in local government. What is contended is that, if Hong Kong permanent residents are to be able to participate indirectly in local government, they can only do so through freely chosen representatives, i.e. persons who have been elected by an electoral process which renders them accountable to their constituents. That right to participate through elected representatives in local government has been removed, so it is said, by the transfer of the Provisional Regional Council's functions to non-elected bodies. Art. 25 does not mandate a particular form of local government, but what it does, so it is said, is to mandate a form of local government which enables Hong Kong permanent residents to participate in it. The removal of that right by the transfer of the functions of local government to non-elected bodies does not amount, so it is said, to a reasonable restriction of the rights protected by Art. 25.

11. Stock J did not find it necessary to consider this argument. He thought that the argument was not engaged because, even before the abolition of the provisional municipal councils and the transfer of their functions to non-elected bodies, members of the provisional municipal councils were not elected. They were appointed by the Chief Executive. True, he appointed all the persons who had been elected to the previous municipal councils and who were still in office on 30 June 1997, but the fact remains that they were appointed, not elected. Stock J rhetorically asked:

".... 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'."

12. I see the force of this view, which was persuasively canvassed, as one would expect, by Stock J in his impressive ex tempore judgment. But in my opinion there is room for an alternative view. Local government had, between 1 July 1997 and 31 December 1999, been in the hands of non-elected members of the provisional municipal councils. The fact that the functions of the provisional municipal councils were transferred with effect from 1 January 2000 to non-elected bodies merely perpetuated, albeit in a different form, the lack of participation in local government which, on the Applicant's primary case, Hong Kong permanent residents should be enjoying. In other words, even though local government has been in the hands of non-elected members and bodies since 1 July 1997, so that the new Ordinance was not itself responsible for the initial transfer of the functions of local government to non-elected bodies, it is nevertheless the case that local government is now in the hands of non-elected bodies. If that is contrary to Art. 25, it is no less contrary to Art. 25 simply because the new Ordinance is perpetuating an alleged infringement of Art. 25 which has been taking place since 1 July 1997.

13. Stock J referred to the decision of the Standing Committee of the National People's Congress (made on 23 February 1997 in anticipation of Art. 160 of the Basic Law taking effect when the Basic Law itself took effect on 1 July 1997) declaring the provisions "relating to election" in the Urban Council Ordinance and the Regional Council Ordinance to be in contravention of the Basic Law. Stock J said:

"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."

It may be that the abolition of the provisional municipal councils did not remove the right to participate in local government through elected representatives, because that right had been removed with effect from 1 July 1997. But the critical question is whether the current form of local government in Hong Kong amounts to a denial of the rights protected by Art. 25, whatever may have been the position in the intervening years between 1 July 1997 and 31 December 1999.

14. As I have said, the arguability of that question was understandably not addressed by Stock J. But since I have reached the conclusion that there is room for an alternative view to the narrow one which he took, it is necessary for me to consider it now. The Respondents contend that election to those bodies responsible for local government in Hong Kong would be contrary to the interpretation of the Basic Law implicit in the decision of the Standing Committee of the National People's Congress of 23 February 1997 that the provisions "relating to election" in the Urban Council Ordinance and the Regional Council Ordinance were in contravention of the Basic Law. The decision did not state why those provisions contravened the Basic Law, but presumably the Standing Committee of the National People's Congress had in mind Arts. 97 and 98 of the Basic Law, which deal with District Organisations, and which provide that "the method for their formation shall be prescribed by law". The Standing Committee of the National People's Congress could not have regarded the statutory provisions by which members of the municipal councils had been elected prior to 30 June 1997 as constituting a method of formation "prescribed by law".

15. It goes without saying that I do not in any way question the declaration of the Standing Committee of the National People's Congress that the provisions "relating to election" in the Urban Council Ordinance and the Regional Council Ordinance were in contravention of the Basic Law. But it may be, as Rogers JA pointed out in the course of argument, that the Standing Committee of the National People's Congress was not saying that elections had no part to play in deciding who should be responsible for local government in Hong Kong. It may simply have been saying that the particular form of elections by which members of the municipal councils were to be elected prior to 30 June 1997 contravened the Basic Law. Because it is arguable that the decision of the Standing Committee of the National People's Congress of 23 February 1997 should be interpreted in that way, it is arguable that some form of election to the bodies responsible for local government in Hong Kong would not be inconsistent with the decision of the Standing Committee of the National People's Congress or Arts. 97 and 98 of the Basic Law.

16. If, then, by enacting the new Ordinance, the Legislative Council was exercising its powers under Arts. 97 and 98 of the Basic Law to prescribe laws for the formation of district organisations, would the absence of elections to the bodies to which the new Ordinance assigns the functions of local government in Hong Kong contravene Art. 25 of the ICCPR as applied to Hong Kong? That question raises, in my opinion, questions of some constitutional difficulty, in particular (a) the extent to which the Legislative Council's powers to legislate in a particular area pursuant to a provision in the Basic Law are circumscribed by provisions in the ICCPR as applied to Hong Kong by Art. 39 of the Basic Law, (b) the true content of the right of Hong Kong permanent residents to participate in the conduct of public affairs, and (c) the extent to which that right has been met by the provisions of the District Councils Ordinance (Cap. 547). In my view, these are important questions which cannot be disposed of in a summary way. It follows that the Applicant has raised a case which, in my opinion, is sufficiently arguable to justify the application for judicial review proceeding to a full hearing.

Miscellaneous matters

17. Leave. The test which Stock J applied was the one which judges at first instance have been obliged to adopt since R. v. The Director of Immigration ex p. Ho Ming Sai (1993) 3 HKPLR 157 at pp. 161 and 170. Kempster JA and Godfrey J (as they then were) said that the test was, to use the words of Kempster JA:

".... whether the material before [the judge] disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the relief sought."

That test was based on what Lord Diplock had said in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617 at p. 644A:

"If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief."

In Ho Ming Sai, the majority of the court accepted that statement. Their approach may have been different if they had had cited to them a case decided by the English Court of Appeal six months earlier - R. v. Legal Aid Board ex p. Hughes (1992) 24 HLR 698. At pp. 702-703, Lord Donaldson MR said:

"Lord Diplock may well have been right in 1981 to have said [what he did] ... However, things have moved on since then. This was an ex parte application. In such a case leave is or should now only be granted if prima facie there is already an arguable case for granting the relief claimed. This is not necessarily to be determined on 'a quick perusal of the material', although clearly any in-depth examination is inappropriate. Furthermore, a 'prima facie arguable' case is not established merely by the disclosure of 'what might on further consideration turn out to be an arguable case' (my emphasis). It is only when there is clearly an arguable case that leave should be granted ex parte. Equally, it is only when prima facie there is clearly no arguable case that leave should be refused ex parte. Usually ex parte applications fall into one or other of these categories, but not always. There is also a small 'I really need to know a bit more about it' category and in such cases the appropriate course is to adjourn the application for an inter partes hearing .... This is quite different from a substantive hearing in that the respondent need only summarise its answer sufficiently to enable the judge to decide whether there is or is not an arguable case."

18. That there is a difference between the two approaches is in my opinion undeniable. Upon the Hughes test, the court grants leave only if it thinks that the applicant has an arguable case. Under the Ho Ming Sai test, the court grants leave if it thinks that the court at the subsequent hearing may think that the applicant has an arguable case. The Ho Ming Sai test is appropriate if the rationale for obtaining leave is only to weed out those cases which are obviously hopeless, in which case the court would not investigate the case in any depth at all. On the other hand, the Hughes test is appropriate if it was intended that only those cases which are genuinely arguable should go to a full hearing, in which case the arguability of the case would have to be considered in a meaningful way.

19. The issue as to which is the correct test will have to be addressed at some stage, but I do not think that this is the appropriate case in which to do so, because in my view on either test the Applicant should be granted leave. However, it may be that the test should be a flexible one so that, for example, if the issue in the case is, say, one of statutory construction, the applicant has to show that his construction is arguable, whereas if the issue in the case is, say, one of procedural unfairness, the applicant only has to show that once the facts are investigated, he may then have an arguable case that the decision challenged should be quashed. It is sufficient for me to state that I do not regard the present case as a relatively straightforward one involving simply the construction of Art. 25 of the ICCPR, as Mr Benjamin Yu SC for the Respondents contended.

20. The decision challenged. The target of an application for judicial review is usually a decision of an administrative body or a judgment or order of a lower court. The decision challenged in the present case is the Chief Executive's decision to assent to the Bill. I do not say that that was not an appropriate target when the application for leave to apply for judicial review was filed, but it is not an appropriate target now that the new Ordinance has come into operation. The Applicant's real target now are those provisions of the new Ordinance which provided for the functions of the Provisional Regional Council to be carried out by non-elected bodies and which are said to contravene Art. 25 of the ICCPR. It is not, I think, necessary to reflect that in any order which the court makes for leave to apply for judicial review, so long as everyone appreciates that it is those provisions which are the Applicant's true target.

21. The grounds on which relief is sought. Since I have concluded that the Applicant should have leave to apply for judicial review in the light of the first of the three grounds advanced on her behalf, it has not been necessary for me to address the arguability of the other grounds. I therefore do not comment on Stock J's view that the other grounds were not arguable either. In my view, since the first of the three grounds will have to be considered at a full hearing, the Applicant should not be denied the opportunity to have the other two grounds addressed as well, though the argument relating to the absence of functional constituencies will have become academic by then.

22. The relief sought. It is right to record that now that the new Ordinance has come into operation, the only relief which the Applicant seeks is a declaration that the relevant provisions of the new Ordinance are inconsistent with the rights protected by Art. 25 of the ICCPR. If such a declaration was made, it would then be for the Government to introduce measures which would not be inconsistent with those rights.

Conclusion

23. For the reasons which I have endeavoured to give, I would allow the 2nd Applicant's appeal, I would set aside the order of the judge in relation to the 2nd Applicant's application, and I would grant the 2nd Applicant leave to apply for judicial review.

Rogers JA:

24. The application for judicial review, in my view, raises arguable questions as to the meaning, effect and application of Article 25 of the International Covenant on Civil and Political Rights. The Covenant is enshrined in the Bill of Rights and applied by Article 39 of the Basic Law. The specific question is whether sub-paragraph (a) of Article 25, in referring to the citizen's right to take part in the conduct of public affairs, directly or through freely chosen representatives, has been satisfied by the current arrangements. The specific matters are, for example, in relation to public health and hygiene, cultural and arts development, and sports and recreation activities. It is said that the provisions of Article 25 are not satisfied by the current statutory provisions, particularly the District Councils Ordinance.

25. In my view, these matters should be examined fully and I, too, would allow this appeal.

Godfrey V-P:

26. I, too, would allow this appeal; but since we are differing from the judge below, I will express my own reasons in a few words.

27. As I view the matter, the constitutional arrangements in force in Hong Kong before 1 July 1997 have nothing to do with the substance of the present application, which relates to the arrangements in relation to local government since put in place, after the resumption of the exercise of sovereignty over Hong Kong by the People's Republic of China, by the legislature of the Hong Kong Special Administrative Region ("HKSAR") pursuant to the provisions of the Basic Law of the HKSAR.

28. Those arrangements provide for the establishment of "District Organizations". In this connection, section 5 in Chapter IV of the Basic Law, comprising Articles 97 and 98, provides as follows :-

"Article 97

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.

Article 98

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

29. The issue (as refined in argument) is whether the provisions of the District Councils Ordinance, Cap. 547 ("DCO") passed by the legislature of the HKSAR to give effect to these Articles, operate in defeasance or infringement of the rights of permanent residents of the HKSAR under Article 25 of the International Covenant on Civil and Political Rights ("ICCPR").

30. Section 61 of the DCO reads as follows :-

"61. Functions of a District Council

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."

31. Article 25 of the ICCPR (as applied to the HKSAR) reads as follows :-

"25. Right to participate in public life

Every [permanent resident] shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions :

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

(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) to have access, on general terms of equality, to public service in Hong Kong."

32. What we have to decide today is the question whether the issue to which I have referred ought to be allowed to proceed to a substantive hearing. I am satisfied, despite the able and sustained argument of Mr Benjamin Yu SC for the respondent, that it should. I say nothing about the merits of that argument. This court's function today is to act as a filter. We have to decide only whether the court should allow the applicant's proceedings to continue.

33. Some cases, even arguable cases, can properly be dismissed at this "threshold" stage : see, for example, Mass Energy Ltd v. Birmingham City Council [1993] Env. L.R. at p.298, cited to us by Mr Benjamin Yu. But this case is very different from that case. As to the "threshold" test itself, I would refer to the Supreme Court Practice, 1999, Vol. 1 where, at paragraph 53/14/21, the editors state as follows :-

"The purpose of the requirement of leave is:

(a) to eliminate frivolous, vexatious or hopeless applications for judicial review without the need for a substantive inter partes judicial review hearing; and

(b) to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further investigation at a full inter partes hearing."

34. I would also refer to Atkin's Court Forms, 2nd edition, Vol. 23(2), 1998 Issue, where the editors refer to the "threshold" test at p.177 as follows :-

"The threshold test is whether or not there is a point for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such argument as is necessary on the law. Leave should only be refused on the other hand if there is no prima facie arguable case at all."

35. Of course, there is room for flexibility in the application of guidelines such as these. One hopes that judges at first instance will use their common sense in applying such guidelines. I appreciate that there may be room for debate as to exactly where the threshold lies. In some future case, it may be appropriate for this court to revisit its own decisions on the point. For the moment, however, I venture to suggest that judges at first instance should regard themselves as bound by what has been said in this court about the point. In any case, I consider that the applicant has succeeded in crossing the threshold here and, as I have already said, I too would allow this appeal.

36. The costs here and below will be costs in the cause.

Representation:

Mr Philip Dykes SC and Mr Johannes Chan, instructed by Messrs Ho, Tse, Wai & Partners, for the 2nd Applicant.

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