Kwok Cheuk Kin v. The Chief Executive of the Hong Kong Special Administrative Region and Another

HCAL 103/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 103 OF 2014

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JUDGMENT

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A.   INTRODUCTION

1.The applicant seeks leave to apply for judicial review of:

(1)   The Report on the Public Consultation on the Methods for Selecting the Chief Executive (“the CE”) in 2017 and for Forming the Legislative Council (“LegCo”) in 2016, dated 15 July 2014 (“the Consultation Report”).

(2)   The Report by the CE to the Standing Committee of National People’s Congress (“NPCSC”) on whether there is a need to amend the methods for selecting the CE in 2017 and for forming LegCo in 2016, dated 15 July 2014 (“the CE Report”).

2.For convenience, I will refer the Consultation Report and the CE Report together as “the Reports”. 

3.The reliefs sought by the applicant are (i) a declaration that the Reports are unlawful and (ii) certiorari to quash the Reports.

4.This is the hearing of the leave application, which is opposed by the CE and the Government as putative respondents (represented by Mr Benjamin Yu SC, together with Mr Abraham Chan and Ms Eva Sit).

5.The Public Consultation, the Consultation Report and the CE Report are related to the constitutional process invoked to effect amendments to be made to, amongst others, Annex I of the Basic Law regarding the method for selecting the CE in Hong Kong in 2017.  I will say more about this later in this judgment.

6.The principal grounds made in support of the proposed judicial review are that the Public Consultation was tainted by certain alleged unfairness in the process.  As the Reports were based on the result of the Public Consultation, they were therefore similarly tainted by the unfairness and unlawful. Alternatively, it is said that the various findings and conclusion made in the Report are in any event Wednesbury unreasonable.

7.Before I deal with the leave application, it is useful to set out briefly the relevant background to put the matters and the proposed grounds of challenge in context.

B.   BACKGROUND

8.Article 45 of the Basic Law (“BL 45”) provides for the election of the CE in Hong Kong.  Under BL 45, the specific method for selecting the CE is prescribed in Annex I (“Annex I”) of the Basic Law.  Articles 1 ‑ 6 of Annex I provide the selection method of the CE by way of an Election Committee and set out the framework of the composition of the Election Committee.

9.Article 7 of Annex I further provides the constitutional mechanism for amending the method for selecting the CE as set out in Annex I after 2007.

10.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”).

11.It is common ground that, 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 for selecting the CE after 2007 will involve the following five steps (“the 5-step process”):

(1)  Step 1 – The CE will make a report to the NPCSC as to whether there is a need to make an amendment.

(2)  Step 2 – The NPCSC will then make a determination in light of the actual situation in Hong Kong and in accordance with BL 45 and the principle of gradual and orderly progress.

(3)  Step 3 – The bill on the amendments to the method for selecting the CE shall be introduced by the Government into the LegCo to be endorsed by two-thirds majority of all the members of the LegCo.

(4)  Step 4 – The CE should consent to the amendments made by the LegCo for selecting the CE.

(5)  Step 5 – The CE should report the amendments to the NPCSC for approval.

12.As mentioned above, the Government conducted the Public Consultation for the purpose of Step 1.  She published the Consultation Report based on the views collected in the Public Consultation on 15 July 2014. It must however be noted that neither the Public Consultation nor the Consultation Report is part of Step 1.  On the same day, this time as part of Step 1, the CE published the CE Report which was based on the Consultation Report.  In the CE Report, the CE recommended that amendments should be made to Annex I in relation to the CE election method for 2017 in order to attain the aim of universal suffrage.  At the same time, he did not recommend any amendments to be made in relation to the method for electing Members to the LegCo.  The CE submitted the CE Report to the NPCSC.

13.The NPCSC after considering the CE Report made a decision (“the 831 Decision”) on 31 August 2014 as Step 2.  The 831 Decision states the following:

(1)  At Paragraph I: “Starting from 2017, the selection of the CE of the Hong Kong Special Administrative Region may be implemented by the method of universal suffrage”.

(2)  At Paragraph II: “When the selection of the CE of the Hong Kong Special Administrative Region is implemented by the method of universal suffrage:

(a)  A broadly representative nominating committee shall be formed.  The provisions for the number of members, composition and formation method of the nominating committee shall be made in accordance with the number of members, composition and formation method of the Election Committee for the Fourth CE.

(b) The nominating committee shall nominate two to three candidates for the office of CE in accordance with democratic procedures.  Each candidate must have the endorsement of more than half of all the members of the nominating committee.

…”

14.On 25 August 2014 (ie, just about 6 days before the NPCSC was to make the 831 Decision under Step 2), the applicant took out this leave application seeking leave to judicially review the Reports.  The applicant’s solicitors by letters dated 26 and 27 August 2014 asked for an urgent determination of the leave application before 31 August 2014 as they noted that the NPCSC was going to make a decision based on the CE Report by that day.

15.This court refused to deal with the leave application on an urgent basis within such a short time frame as requested.  The court explained its reasons in a letter dated 28 August 2014 as follows:

“1. Leaving aside the fact that the court is engaged for a hearing until Friday (29 August 2014), it also does not consider that there is an urgency to hear the leave application on either Friday or Saturday as submitted by the applicant:

(1) There is no suggestion (nor are there any materials to support any such suggestion) that the process now taking place at the NPCSC meeting (which would end on 31 August 2014 (Sunday) as indicated in the applicant’s solicitors’ letter dated 26 August 2014) would be adjourned or suspended by reason of a determination of this leave application. There is thus no justification to require the application to be dealt with urgently before 31 August 2014.

(2) The Consultation Report and CE Report were published on 15 July 2014. The leave application was only filed on 25 August, ie, 6 weeks later. The Form 86 is 183 pages long, with voluminous exhibits. Further, no copies of the many authorities referred to in the Form 86 are provided to the court. Coupled with the observation at (1) above, there are no justifications for the court not to have sufficient time to enable it to properly consider the leave application in the usual way.

2.     The court therefore refuses the applicant’s request to determine the leave application on an urgent basis.”

C.      THIS LEAVE APPLICATION

C1.    Proposed grounds of judicial review

16.The applicant raises a number of grounds in the Form 86.  They are (as summarised in the applicant’s skeleton) as follows:

(1)  The process unfairness ground:  The applicant complains that the process of the Public Consultation was unfair because:

(a)  the Government had already formed a pre-determined view on the material issue;

(b)  the Public Consultation proceeded on mistaken or false legal premises;

(c)  the Government did not provide sufficient information on certain material issues so as to allow those consulted to give intelligent consideration and an intelligent response; and

(d)  the Government was or was perceived to be selective and biased in its conduct of the Public Consultation.   

(2)  The legitimate expectation ground: It is said that the applicant, as a Hong Kong permanent resident, had a legitimate expectation that the Government would truthfully and faithfully summarise, consolidate and reflect the views of the public in the Reports.  But because of the above process unfairness, this legitimate expectation was breached, as the Reports failed to so truthfully and faithfully reflect the public’s views.

(3)  The breach of duty ground:  Under Articles 45 and 68 of the Basic Law, the Government has the duty to reflect to the NPCSC accurately the “actual situation” in Hong Kong.  Also because of the above process unfairness ground, the Government has breached this duty.

(4)  The Wednesbury unreasonableness ground: The putative respondents’ decision to make the findings in the Reports was not based on materials that would support those findings as a matter of fact.  This is underlined by the fact that the reasons given by the Government officials to support those findings are inconsistent themselves.  The findings in the Reports are therefore Wednesbury unreasonable.

17.Insofar as the process unfairness, the legitimate expectation and the breach of duty grounds are concerned, they are all premised principally on the applicant’s complaint that the Public Consultation process was unfair.  In the applicant’s case, the unfairness arises in gist as follows:

(1)  There are findings and conclusion in the Consultation Report  (see Chapters Three and Five) to say that, based on an analysis of the views collected in the Public Consultation, the community generally agreed that it was a natural requirement (“the Requirement”) for the CE to be a person who “loves the country and loves Hong Kong”.  However, in the consultation document, the public was never asked to give an opinion on this issue (ie, whether the CE was required to have such quality).  This conclusion and finding on the other hand is consistent with the Government’s and the Central Government’s repeated stance made to the public before the Public Consultation.  The consultation process was thus unfair in that, while it did not seek to consult the public’s views on this crucial issue, this pre-determined view of the authorities was then presented as a view of the public in the Reports.

(2)  The Public Consultation proceeded on the following mistaken or false legal premises:

(a)  There is a requirement under or derived from or reflected in the Basic Law that the CE (or a CE candidate) must be a person who “loves the Country and loves Hong Kong”;

(b)  The 2007 NPCSC Decision[1] requires the future Nomination Committee (“the NC”) to “maintain, on the one hand, the basic components of the four sectors which compose the EC, while at the same time enabling the actual formation and size of the NC to be further discussed, with appropriate room for adjustment” (“the Four Sectors Requirement”) (see consultation document, para 3.13 at footnote 3); and

(c)  The phrase “nomination by a broadly representative nominating committee in accordance with democratic procedures” in BL45 means the so-called “organizational nomination” or “collective nomination” (see consultation document, para 3.20).

It is the applicant’s case that none of these requirements are stated in or could be derived from the Basic Law, which is the only constitutional and legal document prescribing any requirements for the CE (or CE candidates) and the method for selecting the CE.  These premises are therefore mistaken ones.

(3)  The consultation was also unfair as the Government had failed to provide sufficient information to the public on certain material issues to enable them to give intelligent considerations and responses.  These “material issues” are said to be (a) the relevance of Articles 25, 26 and 39 of the Basic Law and Articles 1, 21 and 22 of the Hong Kong Bill of Rights (“BOR”)[2], (b) the definition of the Requirement, and (c) the significance of a limit on the number of CE candidates and its relevance to the so called “block vote system” in the NC.  The applicant says the Government has either failed to refer to the importance of these matters in the consultation document at all (such as the rights under the various Articles, and the Requirement and its meaning) or failed to highlight the significance of it (such as the block vote system).  This failure had rendered (says the applicant) the public not in a position to fairly consider the matters and give their views.

(4)  The applicant complains that during the consultation process, the Government had selectively given more chances and time to meet the pro-government organisations than that given to the pan-democratic organisations to collect their views.  The applicant relies on, among others, the alternative report (“the Alternative Report”) on the 2017 CE election and LegCo election prepared by 23 pan-democratic LegCo members to support his case: it is the applicant’s position that a lot of the organisations which had expressed their views as recorded in the Alternative Report did not find their ways to the Public Consultation and the subsequent Consultation Report.

(5)  The putative respondents in compiling the Reports have failed to properly and “conscientiously” take into account all the public opinions received by them.  The applicant seeks to demonstrate this by looking at different polls’ opinions and say the result of these polls are clearly inconsistent with various conclusion and findings made in the Reports.

18.For the Wednebury unreasonableness ground, Mr Lee SC (together with Mr Ken Lee) for the applicant essentially submits that the findings in the Reports were not based on materials that would support those findings. 

C2.    Analysis                                  

19.In my view, leave should not be granted to the applicant to apply for judicial review.  My reasons are as follows.

20.It is well established that, save in exceptional circumstances, the court will not by way of judicial review entertain challenges of intermediate decisions which are not of final and substantive nature.  Moreover, the court will also not decide questions that have become or been rendered academic.  See Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at para 20 per Ma CJHC (as the learned CJ then was); Financial Secretary v Wong (2003) 6 HKCFAR 476 at para 14 per Bohkary PJ and paras 89, 93-94 per Litton NPJ; TVB v Communications Authority [2013] 5 HKC 593 at para 22.

21.In respect of public law challenges based on questions that have been rendered academic, A Cheung J (as the learned CJHC then was) observed in Sukmander Singh v Permanent Secretary for Security (unreported, HCAL 23/2009, 28 September 2009)at para 11 as follows:

“The court does not sit in its public law function to decide academic questions or questions that have, since the commencement of proceedings, lost their real significance (emphasis added).”

22.The learned editors of De Smith’s Judicial Review (7^th ed) also have this to say at para 3-026 in respect of a “tiered-process”:

“A decision may be part of a two-tier process, so that an initial determination is superseded by a later one, with the effect that the first decision may no longer be challenged.” (emphasis added)

23.In the present case, as submitted by Mr Yu SC for the proposed respondents, with the making of the 831 Decision, matters have progressed past Steps 1 and 2 of the 5-Step Process.   As such, it has become academic as to whether the applicant’s complaints against the Reports can be made out. This can be tested this way:

(1)   The 831 Decision has superseded or overtaken the Reports. 

(2)   The 831 Decision, being one made by the NPCSC, is not subject to any review by the courts in Hong Kong.

(3)   Thus, even if the applicant succeeds on his grounds in this judicial review, there are no suggestions whatsoever that the granting of the reliefs sought, ie, declaring that the Reports are unlawful, would invalidate the 831 Decision.  It would continue to subsist.

(4)   As a result, the challenge is clearly academic in the sense that it targets a consultation and report process for a decision that (a) has now been made, and (b) the validity of which is wholly outside the scope of a judicial review including these proceedings.  In relation to this, I would also refer to my decision in Leung Lai Kwok Yvonne v The Chief Secretary for Administration and Others (unreported, HCAL 31/2015, 5 June 2015) where I have refused to give leave to apply for judicial review based on, among others, a challenge that at least part of the 831 Decision is not legally binding in Hong Kong.

24.In response, Mr Lee contends on a number of bases as to why the present judicial review is not academic or why there are exceptional circumstances to justify the court entertaining it.

25.First, Mr Lee submits that the applicant in fact took out the leave application before the 831 Decision was made (see above).  Thus, if his leave application is refused on the basis that the 831 Decision has now been made thereby rendering the proposed judicial review academic, it would not only be unfair to the applicant but also infringe his right to access to court.

26.With respect, I am unable to accept these submissions: 

(1)  As mentioned above, the court refused to entertain the leave application on an urgent basis as requested by the applicant on the basis that (a) the applicant himself had delayed in making the application and thereby “created” an urgent situation which had rendered it unfair and impracticable for the court to properly consider the leave application within such a short period of time, and (b) the applicant failed to show anything to suggest that even if the court were able to deal with the leave application just before 31 August 2014, the NPCSC would somehow delay making the decision on 31 August 2014.   In the premises, it lies ill in the mouth of the applicant to now say that it would be unfair and thus infringe his right to access to court in not allowing him to proceed with the judicial review.

(2)  In any event, there is still no answer now to the question that, even if the court were to grant leave before 31 August 2014, there was nothing to show that the NPCSC would defer making its decision on 31 August 2014.  In other words, even if leave were then granted before 31 August 2014, the NPCSC would still have made the 831 Decision rendering the judicial review application academic:  It is common ground that, before making the 831 Decision, the NPCSC was aware of the Alternative Report as the same was presented to the NPCSC by the pan-democratic members of the LegCo. This report at its paragraph 2 pointed out that the CE Report was biased and misleading, and contained the other views which the applicant says the CE Report had failed to include as a result of the process unfairness.  At the same time, the fact is that the NPCSC still proceeded to make the 831 Decision when it was also clearly apprised of those other views contained in the Alternative Report and the complaint that the CE Report was biased and misleading.  This underscores the clear academic nature of the proposed judicial review.  The refusal to grant leave on this basis in accordance with well established principles involves no question of infringing the applicant’s right to access to court.       

27.Second, Mr Lee says even if the various questions raised in the judicial review vis-à-vis the Reports have somehow been overtaken by the 831 Decision as contended by the putative respondents, it is still useful and necessary for the court to entertain the application since the determination of these grounds would give useful guidance on the future conduct of public consultation.

28.I also cannot agree with this contention. 

29.The legal principles governing fairness in the conduct of public consultation relied on by the applicant (as set out in the Form 86 and skeleton) are well established and not in any material controversy.  Moreover, questions of fairness are usually highly contextual.  At the same time, the complaints raised in this intended judicial review as summarised above are clearly highly fact-sensitive. The determination of those questions in the present case involves applying those principles to the particular facts of the present case.  It therefore cannot be said that the determination of this judicial review would provide such material or significant general guidance on the conduct of future public consultation, as the facts that would arise in another public consultation (even in the context of political reforms in Hong Kong) are likely to be very different.  

30.In support of this contention, Mr Lee further relies on the authority of Ho Chun Yan Albert v Leung Chun Ying (No 1) [2012] 5 HKLRD 149.  In that case, Mr Ho sought to by way of an election petition challenge the election of Mr C Y Leung as the CE in the 2012 election.  By the time of the hearing, Mr Leung had already assumed the office of CE.  One of the arguments raised by leading counsel (Mr Mok SC) for Mr Leung was that the challenge was “futile” as only the Central Peoples’ Government had the power to remove a CE, the court did not.  Lam JA (as the learned VP then was) rejected this argument and said these at paragraphs 13-16, 21 and 23:

“13. Mr Wong SC (appearing together with Mr Pao for the Secretary for Justice) did not support Mr Mok's contention. Though Mr Wong accepted that the Court has no jurisdiction to remove a Chief Executive even if it were to determine that he was not duly elected, counsel submitted that this does not mean the court has no jurisdiction to entertain the election petition after the assumption of office of the respondent. It only means that relief granted by the court would not have the effect of removing the respondent from the office. It does not mean that the determination of the court would have no utility. Mr Wong contended that a determination may serve the following purposes:

(a) If the court shall determine that the respondent was duly elected, he would be vindicated;

(b) If the court shall determine that the respondent was not duly elected, it would then be up to the CPG to decide, taking other factors into account, including political considerations which are not relevant for the determination of the legal merits of petition, what course should be taken. In the process, the CPG would take account of the court's judgment in the election petition.

14. In my judgment, Mr Wong is correct in his analysis. The absence of jurisdiction to remove a Chief Executive does not mean that the court has no jurisdiction to entertain an election petition after his assumption of office… The court's duty in the hearing of an election petition is clearly set out in Section 37 of the CEEO: to make a determination whether a returned candidate is duly elected. Political consequences following from such a determination is not a matter for the court.

15. I do not agree with Mr Mok's submission that the purpose of an election is spent once an appointment of the Chief Executive had taken effect upon his assumption of office. Apart from selecting a candidate for the appointment by the CPG, the election also serves the important function of providing a local mandate for the holder of the office of Chief Executive. It is a manifestation of the following prescription in Article 45 of the Basic Law:

‘The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.’

16. This is an important feature in the constitutional framework for ‘One Country Two Systems’. Such a mandate could only be achieved if the Chief Executive is duly elected locally.

…

21. … the decision of the CPG in relation to the removal of a Chief Executive does not simply depend on the legal analysis on whether he is duly elected. Once he has assumed office, with his team of principal officials appointed, and with his policies in various areas implemented, the CPG would have to assess the overall situation and the potential impact on Hong Kong before such an important decision can be made. It is very much a political decision. No doubt the CPG would have regard to the determination of the court and the reasons given by the court for the determination. But the CPG can legitimately take account of other matters which have taken place since the election which are invariably political in nature. Thus, the parameters for the CPG's decision are quite different from those for the court in an election petition.

…

23. Viewed thus, there is no conflict between the court's exercise of its jurisdiction in the determination of an election petition and the power of the CPG in the ultimate decision as to the removal of a Chief Executive. There is also no conflict between the court's determination (even if it were a determination against due election) and the initial appointment of the Chief Executive by the CPG… ” (Mr Lee’s emphasis)

31.Mr Lee submits that the present situation is analogous to that case and says the fact that the court cannot review the 831 Decision does not therefore render the proposed challenge of the Reports wholly futile or academic.   Mr Lee says if the court eventually declares the Reports to be unlawful as contended, it is then for the NPCSC to decide what to do as a political decision.

32.With respect, I do not think this case assists Mr Lee.  In that case, Lam JA was dealing with the context where the relevant Ordinance specifically provided the court with the power to hear an election petition after the election of the CE notwithstanding the fact that the only power to remove a CE lies with the Central Government.  It is in that context that the court was saying why there was no conflict between the court’s exercise of power under the relevant statutory provision and the Central Government’s sole power to appoint and remove the CE.   This has no equivalent application in the present case, where the court is considering the trite principles governing judicial review in dealing with academic questions.  In relation to Mr Lee’s submission that it is for the NPCSC to make a political decision based on the determination of this proposed judicial review, I further repeat my observations at paragraph 26(2) above.

33.For these reasons, I do not accept Mr Lee’s contentions that the proposed judicial review still serves some useful purposes and is thus not academic.  I also do not accept there are any exceptional circumstances to justify a departure from the general rule not to entertain academic judicial review challenges.

D.   CONCLUSION

34.I would dismiss this leave application on the basis that the proposed judicial review is academic in nature.

35.I further order on nisi basis that there be no order as to costs in this leave application.  The applicant’s own costs shall be taxed in accordance with legal aid regulations.  Unless any of the parties applies to vary it by summons, this order shall become absolute 14 days from today. 

36.Finally, I would also like to thank counsel for their assistance in this matter.

Mr Martin Lee SC and Mr Ken TC Lee, instructed by Ho Tse Wai, Philip Li & Partners, assigned by Director of Legal Aid, for the applicant

Mr Benjamin Yu SC, Mr Abraham Chan and Ms Eva Sit, instructed by Department of Justice, for the putative respondents