Leung Lai Kwok Yvonne v. The Chief Secretary for Administration and Others
Read the full judgment text of HCAL 31/2015 on BabelCite. This High Court CFI judgment was delivered on 5 June 2015.
1. This is the applicant’s leave application to apply for judicial review.
Cited by 5 cases · Cites 4 cases
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HCAL 31/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 31 OF 2015 _______________
________________________ JUDGMENT A. INTRODUCTION 1.This is the applicant’s leave application to apply for judicial review. 2.She seeks to challenge in the proposed judicial review the decisions (collectively “the Decisions”) of the proposed respondents (a) to commence public consultation on the method of selecting the Chief Executive of Hong Kong (“the CE”) in the form of the consultation document (“the Consultation Document”) issued on 7 January 2015, (b) in issuing the Consultation Document itself, and (c) in issuing the Consultation Report and Proposals on the “Method for Selecting the Chief Executive by Universal Suffrage” dated 22 April 2015 (“the Consultation Report and Proposals”). 3.As will be explained further below, the primary challenge is premised on the contentions that the proposed respondents had misdirected themselves on the law in making the Decisions, in that they had wrongly regarded the decision (“the 831 Decision”) made by the National People’s Congress Standing Committee (“NPCSC”) on 31 August 2014 in setting out the framework for the political reform in Hong Kong in the election for the CE in 2017 to be legally binding in Hong Kong. 4.By way of proposed amendments to the Form 86,[1] the applicant further adds to the grounds of challenge in saying that the Consultation Report and the Proposals failed to take into account the electoral rights of the applicant (and the public) as enshrined in the Basic Law and Bill of Rights (“BOR”), and in any event constituted disproportionate interference of those rights. 5.The applicant seeks the relief of:
6.The leave application is opposed by the proposed respondents represented by Mr Benjamin Yu SC, leading Mr Abraham Chan and Ms Eva Sit. 7.As this is the leave application, what the court has to consider is whether the proposed judicial review is reasonably arguable with a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paragraphs 14 - 17, per Li CJ. 8.Before I examine this arguability of the proposed judicial review, it is useful to first set out some relevant background leading to this leave application. B. BACKGROUND B1. Relevant provisions in the Basic Law on the election of the CE 9.Article 45 of the Basic Law (“BL 45”) provides for the election of the CE in Hong Kong. It states as follows:
10.Thus, under BL 45, the specific method for selecting the CE is prescribed in Annex I (“Annex I”). Articles 1 ‑ 6 of Annex I provide for the method of selection for the CE by way of an Election Committee and set out the framework of the composition of the Election Committee. Article 7 then provides as follows:
11.In other words, Article 7 of Annex I provides the constitutional mechanism for amending the method for selecting the CE as set out in Annex I after 2007. 12.In the exercise of its power to interpret the Basic Law under Article 158, the NPCSC made an interpretation of Article 7 of Annex I on 6 April 2004 (“the 2004 Interpretation”). 13.Relevant for the present purposes, the 2004 Interpretation sets out the procedure in invoking the amendment process of the method for selecting the CE after 2007 as follows:
14.Its original Chinese text is as follows:
15.Thus, when the 2004 Interpretation is read together with Article 7 of Annex I, the procedure of invoking any amendments to Annex I in relation to the method of selecting the CE after 2007 will involve the following five steps (“the 5-step process”):
16.In October 2013, the CE announced the setting up of the Task Force on Constitutional Development, to be led by the 1st putative respondent, with the 2nd and 3rd putative respondents as members. The Task Force would be responsible for conducting the consultation exercise in respect of the methods for selecting the CE in 2017 and for forming the LegCo in 2016. 17.In July 2014, after a first round consultation exercise conducted by the Task Force, the CE (pursuant to the 1st step) made a report to the NPCSC suggesting that amendment should be made to the method for selecting the CE in order to attain the aim of universal suffrage. 18.After studying the report, the NPCSC made the 831 Decision, which states effectively the following:
19.Thereafter, the putative respondents at various occasions had made statements to the effect that the 831 Decision had been made strictly in accordance with the Basic Law and constitutional process, and is legally effective. 20.On 7 January 2015, the Task Force published the Consultation Document and made the Consultation Decision to commence a two-month 2nd public consultation (“the 2nd consultation”) on the basis of the Consultation Document. 21.The 2nd consultation ended on 7 March 2015. 22.On 22 April 2015, the 3rd putative respondent published the Consultation Report and Proposals, setting out the views the Government had received from the public consultation, and her package of proposals for the method of selecting the CE in 2017. In Chapter Four, it sets out the proposals (“the Proposals”) put forward by the Government for the method of selecting the CE. It also includes in its Annex VIII the “Draft Motion to be put by the HKSAR Government to the [LegCo] Concerning the Amendment to the Method for the Selection of the [CE]” (“the Draft Motion”). The Draft Motion asks for the endorsement by two-thirds majority of all the members of the LegCo to endorse the draft amendments to be made to Annex I (which are in line with the Proposals) appended to the Motion. 23.As set out in the Consultation Document and the Consultation Report and Proposal, they were proceeded on the basis that the entire 831 Decision set out a legally and constitutionally binding framework on the constitutional reform for selecting the CE. Further, in the Consultation Report and Proposals, it was also expressly stated that the Government would not further process or analyse any suggestions that are considered not consistent with or not in conformity with the 831 Decision. 24.As mentioned above, the Government has formulated the Draft Motion to be put to the LegCo. The Draft Motion for the amendments has already been submitted to the Subcommittee formed under the House Committee of the LegCo for scrutiny. In all likelihood, the Motion will be formally tabled before the LegCo by the end of the 2014/2015 legislative year, which is likely to be sometime towards the later part of June this year. Whether the LegCo will endorse the motion remains to be seen. C. THE PROPOSED JUDICIAL REVIEW C1. The proposed grounds of judicial review 25.The applicant in her draft Amended Form 86 intends to raise four grounds of judicial review:
26.Having set out in summary the applicant’s proposed grounds of judicial review, I now turn to the question of whether leave should be granted for the applicant to apply for judicial review under them. C2. Whether leave should be granted C2.1 Grounds 1 and 2 27.The 1st and 2nd grounds can be conveniently considered together as they are both primarily premised on the arguments that the consultation process was tainted by the proposed respondent’s error law made in relation to the binding effect of the entire 831 Decision in Hong Kong. 28.The arguments of Mr Anson Wong SC (leading Mr Ernest Ng and Mr Martin Kok) for the applicant made in support of these two grounds can be summarised as follows:
29.I accept Mr Yu’s submissions that leave should not be granted to apply for judicial review on these grounds. I will explain why. 30.First, it must be noted that the applicant has at least impliedly accepted[4] (and I think rightly so) that the 831 Decision, being a decision of the NPCSC, is not subject to review by the court in Hong Kong, as the court simply has no jurisdiction to do so. She has also accepted that the 2004 Interpretation and Article 7 of Annex I prescribe that the NPCSC has the ultimate authority to approve or not approve at step 5 any proposed electoral reform amendments to be made to Annex I.[5] 31.In the premises, there is no question that the applicant can challenge the 831 Decision itself by way of the intended judicial review. As such, the applicant’s substantive attack under these grounds can only be that the 2nd consultation was tainted by the alleged error of law, and as such, the consultation itself and the subsequent Consultation Report and Proposals are also similarly tainted and thus should be quashed. 32.However, in order to succeed and obtain the substantive reliefs of quashing the Decisions under these grounds, it has to be shown that the alleged error of law (even assuming, without deciding, that there is one) would result in any material effect on the consultation itself. In relation to this, Mr Wong has submitted, when asked by the court at the hearing, that the effect of the alleged error of law is that it had effectively excluded the 2nd consultation from receiving views and options on proposals to amend the method for selecting the CE which are regarded as outside the scope of the Further Statement. As a result, the error has also excluded these potential views and options from being contained in the Consultation Report and Proposals. The exclusion of these potential views and options from the 2nd consultation and the Consultation Report and Proposals has rendered them to be defective and unfair, and thus as a matter of public law, any decisions made in relation to and resulting from them should be quashed. 33.These contentions are in my view not reasonably arguable. As submitted by Mr Yu, even if there is (although Mr Yu contends there is not) the mistake of law as contended by the applicant, any views or options which can be regarded as outside the scope of the Further Statement can only amount to non-viable options for the purpose of formulating the proposals in amending the method for selecting the CE. This is so as (leaving aside the question as to whether the entire 831 Decision is legally binding in Hong Kong) the NPCSC has in any event through the Further Statement stated expressly the framework within which any proposed amendments to the method may be accepted by it. Since (as accepted by the applicant) the NPCSC has the ultimate authority to disapprove any amendments (even if endorsed by the LegCo and consented to by the CE) at step 5, any such potential views and options would therefore not be viable ones for the purpose of formulating the proposal for amending methods for the final approval by the NPCSC, as any proposed amendments incorporating them would be eventually rejected by the NPCSC at the last step. In this respect, as a matter of law, there is no duty on the authority or decision maker to consult non-viable options: R (an application of Enfield Borough Council) v Secretary of State for Health [2009] EWHC 743, at paragraph 17; De Smith’s Judicial Review (7th edn), paragraph 7-054. In the premises, the consultation would not have been rendered defective or unfair even if the 2nd consultation, by reason of the alleged error of law, had excluded these views and options (which are non-viable options). The court would not quash any decisions relating to or resulting from that consultation. 34.Mr Wong nevertheless contends that the applicant does not have to show that the error of law will necessarily alter the decision upon remission, and she is only required to demonstrate a relevant error of law such that the actual making of the decision would be “affected”. In support, he relies on R v Hull University Visitor, ex parte Page[1993] AC 682, at 702C-D. 35.With respect to Mr Wong, I do not think his submissions assist him. Even in his own submissions, he still has to demonstrate that the error of law would have “affected” the decision. But as I explained above, in the present case, the alleged error of law would not have materially affected the Decisions. 36.Hull University, supra, which is not a case about consultation process, does not take Mr Wong’s argument any further. Lord Browne-Wilkinson also said at 702D that an error of law shown has to be a “relevant error of law”, which is “an error in the actual making of decision which affected the decision itself” (emphasis added). The question is therefore still whether the error of law identified has affected the relevant decision. 37.For this reason alone, I do not think Grounds 1 and 2 are reasonably arguable with a realistic process of success. Leave should not be granted for the applicant to apply for judicial review on these grounds. 38.Second, and in any event, I would also reject leave on the basis (as submitted by the proposed respondents) that the intended application for judicial review based on these grounds is pre-mature and thus it is not reasonably arguable that the court will entertain the judicial review and grant relief. 39.As mentioned above, the legislature process for incorporating the proposals has already begun. The Draft Motion for the amendments has already been submitted to the Subcommittee formed under the House Committee of the LegCo for scrutiny. The motion itself would most likely be debated and voted in the LegCo later in June. It is only if the LegCo endorses the motion by two-thirds majority that the five step process will move on to the next stage. At present, it is not known at all whether the LegCo will endorse the motion. 40.In this respect, the law is clear that, to underline the concept of separation of power and the distinct and different role of the legislature and the judiciary, the court should, in general and as far as possible, avoid interfering in the legislative process and entertaining a pre-enactment challenge. This is particularly so as it is simply unclear whether the objected provision would become law: Leung Kwok Hung v President of the Legislative Council (No 2) [2015] 1 HKC 195, paragraphs 27 - 29; 張德榮訴政制及內地事務局局長 (unreported, HCAL 45/2011, 11 July 2011), per Lam J (as the learned VP then was) at paragraphs 13 - 16; Bahamas District of Methodist Church v Symonette [2000] 5 LRC 196 (PC), at paragraphs 26, 31 - 32, 37. 41.Thus, it is only in exceptional cases that the court may exercise its discretion to entertain a pre-enactment challenge. One such instance is if the consequences of the provision may be immediate and irreversible and give rise to substantial damage or prejudice. The court has consistently applied this strict approach: 張德榮, at paragraphs 16 ‑ 18; Bahamas, paragraphs 31 and 37; TVB v Communications Authority [2013] 5 HKC 593, at paragraph 24. 42.As submitted by Mr Yu, the rationale for the strict approach as applied in a legislative context is that:
43.The strict approach is not limited to situations where there is already a bill tabled before the legislature; it also applies to the case of pre‑enactment consultation which may or may not result in an enactment: 2005 Robert Julien Family Delaware Dynasty Trust v Canada (Minister of National Revenue) [2007] FCJ No 1372, per Gibson J at paragraphs 26 ‑ 28, referring to Treaty Seven First Nations v Canada (Attorney General) [2003] FCJ No 464. 44.In relation to this, it has also been said that the executive act in formulating and introducing a bill constitutes part of the legislative process, with which the court will not generally interfere: Re Canada Assistance Plan [1991] 2 SCR 525 at paragraphs 61 and 63, per Sopinka J for the Supreme Court of Canada. 45.Applying these principles, in my view, the Decisions under challenge are not final decisions, as the Draft Motion is being considered but yet to be endorsed by the LegCo. In the event that the LegCo rejects the motion, none of the Proposals arising out of the 2nd consultation will become law in Hong Kong. The intended judicial review application is thus pre-mature. 46.Mr Wong however argues that the court should entertain the application now as the Decisions have immediate and irreversible consequence and would result in severe prejudice. This is so as once the motion is voted in the LegCo and passed or even rejected, step 3 is completed and cannot be reversed, and so is the entire 5-step process. On the other hand, if the applicant can successfully challenge the Decisions now, it means that the Administration has to restart the process after step 2, as the entire process has not been completed. Moreover, if the motion is passed, the process will move on to steps 4 and 5 which, Mr Wong submits, could be completed very quickly leaving no room for the applicant to then challenge it before it becomes part of the Basic Law under Annex I upon the completion of step 5. 47.With respect to Mr Wong, I cannot accept these submissions. 48.It is the applicant’s own case[6] that, given the alleged error of law which tainted the Decisions and the 2nd consultation, the error will also permeate through the entire process and similarly taint steps 3, 4 and 5. In that premises, in her own case, the applicant should still be able to challenge and seek to quash the passed motion and/or stage 3 itself (whether or not the motion is passed). It is therefore not open to Mr Wong to now say that there would be irreversible consequence if the intended judicial review is not entertained now. 49.Insofar as Mr Wong’s submission that steps 4 and 5 may be completed within so short a time that there would not be enough time for the applicant to challenge the passed motion is concerned, this is simply an assertion made the first time in court. One therefore cannot assume that those steps would be completed in such a short period of time that it would become impossible for the applicant to lodge any applications (including any urgent applications) within reasonable time to challenge the passed motion together with, if any, any interim relief. This is particularly so when it is the proposed respondents’ own submissions before the court that this proposed judicial review application is premature as “there will be ample time for the Applicant to challenge the amendments after the endorsement by LegCo”.[7] I therefore also cannot accept Mr Wong’s said contention. 50.Finally, Mr Wong also argues that the motion asked to be endorsed by the LegCo is not a bill and the LegCo is not asked to pass a bill to enact a local legislation. If the motion is passed, the final amendments to Annex I are to be made by the NPCSC but not the LegCo. He therefore submits that the principles relating to pre-enactment challenge are not applicable. 51.I find this distinction not of real substance in the present context. The underlying rationale as to why the court is slow to interfere by way of judicial review interlocutory steps or decisions leading to substantive decision as set out in paragraph 42 above and the principles summarised at paragraph 25 of TVB, supra, are still equally applicable in the present circumstances. In this regard, I would further refer to my observations at paragraphs 57 and 58 below. 52.In any event, even purely for the sake of argument, and taking Mr Wong’s said distinction to the highest, all it means is that the substantive decision within the local jurisdiction that should be subject to challenge is still the “decision” of the LegCo made at step 3 after debate and/or the CE’s decision at step 4. 53.In the premises, there is nothing to justify the court to entertain this premature challenge at this stage. It is therefore not reasonably arguable that the court will eventually grant relief under the proposed judicial review. Leave should also be refused on this basis alone. C2.2 Grounds 3 and 4 54.Grounds 3 and 4 can also be conveniently considered together, as they are premised on the related arguments that the Proposals infringe the Relevant Rights of the applicant and/or Hong Kong permanent residents. 55.The applicant’s contentions under these grounds can be summarised as follows:
56.I will also refuse to grant leave to these grounds on the basis that the proposed judicial review premised on these grounds is also clearly premature for the same reasons I have canvassed above. 57.Moreover, I would add that there is a further reason as to why the court should not entertain a challenge based on Grounds 3 and 4 at this pre-enactment stage. The question of whether the Proposals in not adopting the NOTA Option amount to unjustified or disproportionate restriction of the Relevant Rights (even if they are applicable in this context) is one concerning election. As said by Ma CJ in Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735, at paragraph 45, this is a context which also involves political and policy considerations and it is in these areas that the legislature is involved. Thus, in determining a question of whether certain legislative restriction is an appropriate or justified one vis-à-vis an alleged constitutional right concerning election, the court (in recognising the principle of separation of power) would accord a due margin of appreciation to the legislature. 58.In the premises, and in the present case, the court should only look at this question when the relevant motion has been properly debated in the LegCo and if passed. This is particularly so as the members of the LegCo are fully aware of the existence of the suggestion of the NOTA Option and the other views and options that go outside the 831 Decisions:
59.I will therefore also refuse to grant leave to the applicant to apply for judicial review on these two grounds. D. CONCLUSION 60.For these reasons, I would refuse the leave application. 61.I would like to further stress one point. Although I have come to this conclusion partly on the basis of assuming some of the arguments raised about the existence of an error of law itself (under Grounds 1 and 2) and that the Relevant Rights are engaged in the context of CE election (under Grounds 3 and 4) are arguable, this judgment should not be read as if I have decided that those contentions are reasonably arguable. It must be noted that the proposed respondents have raised some strong submissions as to why those contentions are not reasonably arguable. It is only that I do not find it necessary to decide on those arguments given that I could dispose of the leave application on the other bases as I have set out above. 62.Finally, I would also make an order nisi that there be no order as to costs in this leave application. Unless any of the parties applies to vary it by summons, the order shall become absolute 14 days from today. 63.It remains for me to thank counsel’s helpful assistance.
Mr Anson Wong SC, Mr Ernest CY Ng & Mr Martin Kok, instructed by Ho Tse Wai, Philip Li & Partners, for the applicant Mr Benjamin Yu SC, Mr Abraham Chan and Ms Eva Sit, instructed by Department of Justice, for the 1st to 3rd putative respondents and the putative interested party [1] In the draft Amended Form 86 dated 13 May 2015. [2] International Covenant on Civil and Political Rights [3] In support of this, Mr Wong relies on the analyses and propositions made by Professor Albert Chen as to when a NPCSC decision can be argued not to be biding in Hong Kong under the Basic Law in “The Court of Final Appeal’s Ruling in the ‘Illegal Migrant’ Children Case: Congressional Supremacy and Judicial Review, in Johannes Chan et al (eds), Hong Kong’s Constitutional Debate: Conflict over Interpretation (Hong Kong University Press, 2000), pp 73 - 96 at 89. [4] See paragraph 82 of the draft Amended Form 86. [5] See paragraphs 99 and 116 of the draft Amended Form 86. [6] See paragraph 132 of the Draft Amended Form 86 which says “Similarly, the Proposed Respondents’ mistake of law would also prevent the LegCo, the CE, and the NPCSC from properly gauging or assessing the public opinion of the Hong Kong community, which would impede the fulfilment of their duties under Steps Three, Four and Five respectively. In short, the entire amendment process would be tainted by the Proposed Respondents’ error of law.” [7] See in particular paragraph 40 of the proposed respondents’ skeleton submissions. See also generally paragraphs 31 - 46. [8] Domesticalising Article 25 of the ICCPR into part of Hong Kong law. [9] The applicant relies on Dr Chan Sze Lai Jacqueline v Dental Council of Hong Kong [2014] 1 HKLRD 77 at paragraphs 64 - 88 to support the submissions that the decision maker should take into account these rights as relevant considerations. [10] Section 13 of the HKBORO provides: “Article 21 does not require the establishment of an elected Executive or Legislative Council in Hong Kong. [11] See paragraph 49C of the draft Form 86. | |||||||||||||||||||||||||||||||||
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