Leung Kwok Hung v. The President of the Legislative Council of the Hong Kong Special Administrative Region

CACV 123/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2012

(ON APPEAL FROM HCAL 64/2012)

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BETWEEN

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JUDGMENT
(ON LEAVE TO APPEAL ON MERITS)

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Hon Cheung CJHC:

1.On 1 February 2013, we dismissed the applicant’s appeal from the refusal of Lam J (as Lam JA then was) to grant leave to apply for judicial review and the judge’s consequential order of costs against the applicant.

2.The applicant now seeks leave to appeal to the Court of Final Appeal from this court’s decision on merits.  The parties have agreed that the application shall be dealt with by written submissions only.

3.The applicant contends that the intended appeal raises the following questions of great general or public importance or which otherwise ought to be submitted to the Court of Final Appeal for decision:

“Questions relating to Article 73(1) of the Basic Law

1. Does Article 73(1) of the Basic Law confer on individual members of the Legislative Council (“the LegCo”) a right to speak in accordance with the Rules of Procedure of the Legislative Council (“the RoP”) when the LegCo is exercising its powers and functions to enact, amend or repeal laws?

2. Is there a constitutional requirement under the Basic Law for the LegCo, including its President, to comply with the RoP when the LegCo is exercising its powers and functions to enact, amend or repeal laws?

3. Was the decision of the President of the LegCo on 17 May 2012 (“the Decision”)to close the debate of the committee of the whole Council on the amendments to the Legislative Council (Amendment) Bill 2012 (“the Bill”), purportedly pursuant to Article 72(1) of the Basic Law and Rule 92 of the RoP, in violation of Article 73(1) of the Basic Law?

Question relating to Article 75(2) of the Basic Law

4.      In making the Decision purportedly pursuant to Article 72(1) of the Basic Law and Rule 92 of the RoP, did the President of the LegCo violate Article 75(2) of the Basic Law, which confers the power to make or amend the RoP on the LegCo and not on its President alone?”

4.Having considered the respective submissions of the parties, I am not convinced that any of these questions are reasonably arguable in the applicant’s favour.  Some of the supporting arguments simply repeat, in substance, those submissions already rejected by this court for reasons given in its judgment.  There are some new arguments, such as the one based on the Joint Declaration and another one based on the impartiality of the President.  I am not persuaded that these new arguments, whether when considered alone or together with the other arguments run by the applicant, make the questions posed by the applicant reasonably arguable.

5.Given my view on the arguability of the questions raised by the applicant, the jurisdictional question of whether the applicant enjoys a right to apply for leave to appeal to the Court of Final Appeal from a Court of Appeal judgment affirming a refusal of leave to apply for judicial review is academic.  Admittedly, the authorities on this point do not speak with one voice.  Whatever we say here is bound to be obiter in nature and will not, in any event, finally resolve the question.  It should best be left to the Court of Final Appeal for determination in an appropriate case.

6.I would dismiss the application for leave to appeal with costs (to both the putative respondent and the Secretary for Justice).

Hon Kwan JA:

7.I agree.

Hon Poon J:

8.I agree.

Hon Cheung CJHC:

9.The court makes the order indicated in paragraph 6 above.

Mr Martin Lee SC, Mr Hectar Pun and Mr Carter Chim, instructed by Lam and Lai, for the applicant

Mr Anthony Chan, instructed by Lo & Lo, for the putative respondent

Mr Jin Pao, instructed by the Department of Justice, for the Secretary for Justice