Lo Hom Chau v. The Secretary for Justice

CACV 2/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2 OF 2010

(ON APPEAL FROM HCAL NO. 32 OF 2009)

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BETWEEN

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AND

CACV  3/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3 OF 2010

(ON APPEAL FROM HCAL NO. 55 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Fok JA in Court

Date of Hearing: 21 October 2011

Date of Judgment: 21 October 2011

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J U D G M E N T

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Hon Stock VP:

1.On 7 December 2010, we handed down judgment in these two cases which addressed the constitutionality of corporate votes for functional constituency elections to the Legislative Council. By that judgment we dismissed the applicants’ appeals from a decision of Cheung J, as he then was, dated 10 December 2009.

2.By notices of motion, each dated 3 January 2011, the applicants seek leave to appeal to the Court of Final Appeal on the ground that their appeals raise questions of great general public importance or otherwise ought to be submitted to the Court of Final Appeal, pursuant to the provisions of section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484.

3.The questions posed for our consideration as apposite for appeal are these:

(i)  Whether Article 26 of the Basic Law confers the right to vote and to stand for election on HKSAR Permanent Residents only;

(ii)  If the answer to (i) is in the affirmative, whether it is permissible under Article 26 of the Basic Law for persons other than HKSAR Permanent Residents (including corporations owned and controlled by non-HKSAR Permanent Residents) to be allowed to vote and stand for election;

(iii)  If the answer to (ii) is in the negative, what is the basis for corporations to vote in Functional Constituencies Elections; and

(iv)  Whether sections 25 and 26 of the Legislative Council Ordinance, Cap. 542 to the extent that they provide for voting by corporations in elections for the Legislative Council, are inconsistent with Articles 26 and 39 of the Basic Law and Article 21 of the Hong Kong Bill of Rights provided in section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 and are unconstitutional.

4.We held in our judgment that article 26 was not to be construed in isolation and that in full context, including other articles of the Basic Law, the Annexes, the 1990 Explanation of the Basic Law and the history of legislative constitutional development in Hong Kong, sections 25 and 26 of the Legislative Council Ordinance Cap. 542, to the extent that they provided for voting by corporations in elections for the Legislative Council, were not inconsistent with the Basic Law.

5.I do not think that the contrary to be reasonably arguable and for this reason alone I would refuse leave.

6.In the argument before us there is much concentration upon paragraphs 93 to 102 of my judgment in which I postulated a possible interpretation of article 26 by saying that it might be read as preserving for permanent residents an inalienable right to vote, rather than as excluding in all circumstances the possibility of conferring the right upon anyone else.

7.The way in which the argument, certainly in its written form, has been presented is as if that was the ratio decidendi of the judgment.

8.It is unfortunate that the written argument has made no recognition of two perfectly clear comments made by me: the first in paragraph 93, that I was postulating merely “an alternative and tenable view” of article 26 from that analysed by Cheung J; and the second at paragraph 103, in which I made clear it was not necessary for the purpose of the appeals to determine the validity of the judge’s analysis as against “the alternative view which I have postulated as a possibility” (emphasis added).

9.That possibility was expressed merely as that, a possible view and a reading of the judgment as a whole should make it perfectly clear that the decision at which I arrived on the questions that fell for our determination was based, not upon that aside, but upon a detailed analysis of article 26 “as part of a mosaic which includes arts. 45, 68 and Annexes I and II of the Basic Law the effect of which is that in the early years of Hong Kong’s new constitutional dispensation, there is room for participation through election in public affairs by all permanent residents but for a simultaneous continuation beyond 1997 of corporate participation in such affairs by or through major organisations and associations at elections.”: para 105.

10.For these reasons, I would in each case refuse leave.

Hon Hartmann JA:

11.I agree.

Hon Fok JA:

12.I also agree.

Hon Stock VP:

13.Accordingly, leave is refused.

Mr Mike Lui, instructed by Department of Justice, for the Respondent

Ms Gladys Li, SC & Ms Jocelyn Leung, instructed by Messrs JCC Cheung & Co., for the Applicant (in CACV 2/2010)

Mr Hectar Pun & Mr Newman Lam, instructed by Messrs JCC Cheung & Co., for the Applicant (in CACV 3/2010)

Please refer to FAMV39/2011 for the relevant appeal(s) to the Court of Final Appeal.