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The Chief Executive Of The Hksar And Another v Yau Wai Ching And Others

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date15 November 2016
Year2016
Judgement NumberHCMP2819/2016
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCAL185A/2016 CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL

HCAL 185/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 185 OF 2016

_______________

BETWEEN
CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION 1st Applicant
SECRETARY FOR JUSTICE 2nd Applicant

and
THE PRESIDENT OF THE LEGISLATIVE COUNCIL Respondent

and
SIXTUS LEUNG CHUNG HANG 1st Interested Party
YAU WAI CHING 2nd Interested Party

_______________

AND
HCMP 2819/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 2819 OF 2016

_______________

BETWEEN
THE CHIEF EXECUTIVE OF THE HKSAR 1st Plaintiff
SECRETARY FOR JUSTICE 2nd Plaintiff

and
YAU WAI CHING 1st Defendant
SIXTUS LEUNG CHUNG HANG 2nd Defendant
PRESIDENT OF THE LEGISLATIVE COUNCIL 3rd Defendant
_______________
(heard together)

Before: Hon Au J in Court

Date of Hearing: 3 November 2016

Date of Judgment: 15 November 2016

_______________

J U D G M E N T

_______________

A. INTRODUCTION

1. A member of the Legislative Council (“LegCo”) is constitutionally mandated under Article 104 (“BL104”) of the Basic Law (“BL”), upon assuming office, to take an oath to swear to uphold the BL and to swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.

2. For the purpose of BL104, a LegCo member is required under section 19 of the Oaths and Declarations Ordinance (Cap 11) (“ODO”) to take the Legislative Council Oath (“LegCo Oath”)in the form as prescribed under section 16(d) and Schedule 2 thereof. Part IV of Schedule 2 prescribes the form of the LegCo Oath as follows:

“THE LEGISLATIVE COUNCIL OATH

I swear that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity.

(name of person making the oath)” (emphasis added)

3. Section 21 of the ODO further provides that if a LegCo member “declines or neglects” to take the LegCo Oath “when requested” to do so, he “shall” (meaning he must) vacate the office if he has already entered on it, or he “shall” be disqualified from entering on the office if he has not.

4. In the present cases, Mr Leung and Ms Yau were elected in their respective constituencies in the general election held in September this year to be a LegCo member. As mandated under BL104 and section 19 of the ODO, they were asked to take the LegCo Oath before the Clerk to the LegCo (“the Clerk”) at the first meeting of the LegCo on 12 October 2016.

5. There is no dispute that they purported to take the LegCo Oath before the Clerk on that occasion in the following way and manner:

(1) Each of them used the term “Hong Kong nation” right at the outset of oath-taking:

(a) Mr Leung declared in open public that he shall keep guard over the interest of the Hong Kong nation;

(b) Ms Yau declared in open public that she will be faithful and bear true allegiance to the Hong Kong nation.

(2) The Clerk interrupted each of them and said he could not administer their respective oath-taking as that was not taken in compliance with the LegCo Oath.

(3) Each of them then purported to take the oath again.

(4) In doing so, each of them mis-pronounced the word “China” consecutively for three times, as “Geen-na” or “Sheen-na” (“支那”).

(5) Further, Ms Yau mis-pronounced “People’s Republic of China” as “the People’s Refucking of Sheen-na” consecutively for three times.

(6) Each of them also intentionally unfolded and displayed a blue banner bearing the words “HONG KONG IS NOT CHINA”.

(7) Mr Leung adopted a contrast in the tone of his voice between his initial words before the interjection by the Clerk and his subsequent words after such interjection (which shows a dismissive and not serious attitude). He further crossed the index and middle fingers of his right hand over the Bible in seeking to take the oath again after the initial interjection by the Clerk.

(8) Ms Yau emphasized “Hong Kong” with a distinctly loud tone of voice but adopted a lower voice and hurried manner for the rest of the oath.

6. Moreover, Mr Leung said to the press immediately after the LegCo meeting on 12 October 2016 as follows:

“今日我哋 [referring to himself and Ms Yau] 成個誓詞嗰個部份我哋有，我自己啦，我有3 part係做咗啦，呀，有個手勢啦，有一個係呀披肩咁樣嘅野啦，亦都有一個說法，咁而3樣野係一個組合嚟嘅”.

7. In light of the above undisputed way and manner in which Mr Leung and Ms Yau purported to take the oath, on 18 October 2016, the President of the LegCo (“the President”) decided (on legal advice) that the oath purported to be taken by each of them on that day is invalid. However, the President then further decided (also on legal advice) to allow each of them to re-take the LegCo Oath at the next LegCo meeting if they made a written request to do so. I would call this second part of the decision for convenience as “the President’s Decision”.

8. Mr Leung and Ms Yau later on that day did make a written request to re-take the oath.

9. The Chief Executive of the HKSAR (“the CE”) and the Secretary for Justice (“the SJ”) (collectively, “the applicants”) however contend that Mr Leung and Ms Yau already declined or neglected to take the LegCo Oath on 12 October 2016. As a result, under section 21 of the ODO, as a matter of law, they must be regarded as having vacated their office of a LegCo member or alternatively be disqualified from entering on it. On the same basis, the CE and the SJ also say that the President misdirected himself on the law in making the President’s Decision as there is no question that Mr Leung and Ms Yau could re-take the oath again after they have so vacated the office or having been disqualified from entering on it.

10. Thus, on the same day of the President’s Decision (ie, 18 October 2016), the CE and the SJ commenced the present action under HCMP 2819/2016 against Ms Yau, Mr Leung and the President; and this judicial review against the President (joining Mr Leung and Ms Yau as interested parties).[1]

11. In HCMP 2819/2016, the applicants seek against Ms Yau and Mr Leung (respectively as the 1st and 2nd defendants) the principal reliefs of (a) a declaration that the oaths taken by them on 12 October 2016 contravened BL104 and the relevant provisions of the ODO, and are invalid and void as the LegCo Oath as required under the law; (b) a declaration that they are disqualified from assuming or entering on the office of a LegCo member, or have vacated that office, and are not entitled to act as a LegCo member; and (c) injunctions to restrain them from acting or claiming to be entitled to act as a LegCo member.

12. In the judicial review, the applicants seek against the President the principal reliefs of (a) a declaration that the President has no power to re-administer or allow for re-administration of any oaths to be taken by Mr Leung and Ms Yau as they are disqualified from assuming or entering on the office of a LegCo member or have already vacated it; (b) a declaration that the office of member of the LegCo previously occupied by each of Mr Leung and Ms Yau is now vacant; (c) an order of certiorari to quash the President’s Decision; and (d) an injunction to restrain the President from administering or allowing to be administered the making of oaths of Mr Leung and Ms Yau under section 19 of the ODO.

13. It is important to note that, notwithstanding the CE and the SJ’s above forefront contentions made in these applications, Mr Leung and Ms Yau have not put forward any positive case by way of submissions (primary or alternative) or evidence that the oaths they purported to take on 12 October 2016 complied with BL104 or the requirements under the ODO. They also have not put forward any positive arguments by way of submissions or evidence that they did not “decline or neglect” to take the LegCo Oath when requested to do so on that day.

14. Instead, Mr Leung and Ms Yau oppose these applications on two principal grounds. They are that (a) matters concerning the oath taking by a LegCo member and the validity thereof are “internal business” of the LegCo and, under the non-intervention principle in common law, the court should and could not intervene in these matters or any decisions made by the President or the Clerk relating to them; and (b) the words spoken in relation to the “oaths” taken by Mr Leung and Ms Yau are protected by the immunity provided under BL77 and sections 3 and 4 of the Legislative Council (Powers and Privileges) Ordinance (Cap 382) (“LCPPO”), and they are therefore immune from suit, including the present ones. Mr Leung and Ms Yau have also raised some other ancillary arguments in aid of the above principal grounds, including an objection that the CE has no locus to bring these proceedings. I would elaborate on all these grounds and arguments in greater detail later.

15. Insofar as the President is concerned, his only objection to these proceedings is that he should not be joined as a party. It is submitted that he has not made any substantive...

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