UNIVERSITY OF HONG KONG
DEPARTMENT OF LAW
Constitutional Law (LLB) (2022-2023)
TUTORIAL WORKSHEET 2
This Worksheet consists of Sections A and B. Please note that the readings for the two
sections are different.
SECTION A
Preparation required
Please read the Basic Law, Readings 3(1) (particularly on the concept of ‘autonomy’),
3(1) (Supplement), 3(2) (including President Xi’s speeches at the 20 th and 25th
anniversaries of the HKSAR) and 3(11) (the “co-location case”), and the
‘Explanations’ on the NPC Decision on National Security in the HKSAR (2020) and
the NPC Decision on Electoral Reform (2021) (included in the readings on ‘Hong
Kong’s Constitutional History’).
Questions for discussion
Please be prepared to discuss the following questions. Other related or follow-up
questions may also be discussed at the tutorial.
1. How are the concepts of “sovereignty” and “autonomy” expressed in the Basic
Law?
Albert Chen: The concept of autonomy refers to a particular form of distribution
of governmental power within a sovereign state. The more extensive the kinds of
affairs over which they are self-governing, the higher is the degree of autonomy.
Sovereignty: preamble, BL1, 13, 14, 17, 18, 19, 45, 158 and 159
Autonomy: BL 2, 12, 17, 18, 45, 158 and 159
2. It is said that the Hong Kong Special Administrative Region (HKSAR) enjoys a
high degree of autonomy under the Basic Law. Is this true or to what extent is this
true?
Albert Chen:
a. Method by which the local government is to be formed: Local government
truly represent and govern in the interests of the people of the region. CY
1
Leung’s universal suffrage proposal, change of LegCo election method in
2020
b. Division of powers in the legislative, executive and judicial spheres between
the central government and the local government: the line between CPG and
HKSAR Government rational and reasonable in theory and practicable in
reality?
c. Mechanisms for rectification of errors and resolution of disputes: Conflicts of
opinion, how are they to be resolved? BL158, NPCSC interpretations and
decisions
3. Examine the following documents: (a) the White Paper (2014) (particularly the
relevant parts specified in the note on the Moodle page on ‘Preparation for the 3rd
lecture’), (b) President Xi’s speeches on 1 July 2017 and 1 July 2022, (c) the
explanatory speech on the NPC Decision on National Security in the HKSAR
(2020), and (d) the explanatory speech on the NPC Decision on Electoral Reform
in the HKSAR (2021).
Is there any change in the Central Authorities’ policy on “One Country, Two
Systems” (OCTS) after the “Anti-Extradition Law Movement” of 2019? If there is
a change, discuss both the continuity (if any) and the change in the OCTS policy.
White Paper: Judges and Judicial officers are part of the administrators and they
have to be patriotic. It caused widespread criticism about this proposition
undermines judicial independence. Silent march of the legal profession.
President Xi’s speech on 1 July 2017 also mentioned that one country being the
root of two systems. The importance of maintaining OCTS, the importance of
sovereignty and patriots ruling HK.
President Xi speech on 1 July 2022 puts emphasis on NSL, the central
government's overall jurisdiction while securing the SARs' high degree of
autonomy.
In the NSL explanatory speech and the Electoral Reform speech, the NPCSC
referred to the anti-extradition law movement, and NPCSC contended that there’re
destabilizing elements jumped on to take into their hands the power to administer
the HKSAR. Thus, NPCSC stated that it is important to take necessary steps to
improve the electoral system and remove existing institutional deficiencies and
risks to ensure the administration of Hong Kong by Hong Kong people with
patriots as the main body.
2
4. Examine the Court of Appeal’s judgment in the “co-location case” of Kwok
Cheuk-kin [2021] HKCA 871. What is the Court of Appeal’s view on the legal
status and legal force in the HKSAR of (a) the PRC Constitution, and (b) the
“decisions” of the NPCSC on matters relating to the HKSAR?
(a) Colocation CA ¶66
(b) Colocation CA ¶¶66-72
SECTION B
Preparation required
Please read the relevant parts of Reading 2, Readings 3(3), 3(5), and 3(8) relating to
the cases covered in the questions below. In the course of your reading, try to identify
and study more intensively those passages in the readings which relate directly to the
questions below.
Questions for discussion
Please be prepared to discuss the following questions. In addition to these questions,
please also be prepared to discuss the material facts of each case, the legal issues
raised by them, and the reasoning of the court in reaching the decision on the legal
issues.
1. What was decided by the Court of Appeal in Ma Wai Kwan which the Court
of Final Appeal wanted to overrule in Ng Ka Ling?
Ng Ka Ling ¶66
2. To what extent did the Court of Final Appeal (CFA) modify the position it
originally adopted in Ng Ka Ling when it made the “clarification” in Ng Ka
Ling v Director of Immigration (No. 2)?
Ng Ka Ling ¶¶59-66
Ng Ka Ling No. 2 ¶6
3. In Ng Ka Ling, should the CFA have referred any provision of the Basic Law
to the NPC Standing Committee for interpretation? It depends on the
viability of predominant provision test, see Congo ¶¶395-405
4. When the litigants in the first “oath-taking case” of Chief Executive of the
HKSAR v President of the Legislative Council and Leung Chung Hang
(HCAL 185/2016, 15 Nov 2016; CACV 224/2016, 30 Nov 2016; FAMV
7/2017, 25 Aug 2017) applied for leave to appeal to the CFA, what were the
parties’ arguments, and how did the CFA deal with them?
3
(1) the issue of the applicability of the non-intervention principle: Whilst the
President of LegCo ruled the first oath taking invalid, the President made a
decision to allow Yau and Leung to retake the oath. Yau Leung argued that the
non-intervention principle applies in this case because he LegCo has exclusive
control over the conduct of its own affairs extends to the matter of oath-taking
by legislators withing the LegCo as required by the provisions of the ODO.
Yau Leung CFA ¶¶21 and 22
(2) the proper construction of section 21 of the Ordinance: Yau Leung argue that
section 21 of the Ordinance should not be construed as requiring a member of
Legco who declines or neglects to take the Legco oath to vacate his office
automatically by operation of law. Yau Leung CFA ¶¶28-29
(3) the ambit and effect of the Interpretation:
Yau Leung sought to argue that whether the Interpretation is binding. Even if
the Interpretation is binding, whether it has a retrospective effect and whether
it is for the local courts to decide the meaning of in accordance with law as
stated in BL 104.
Yau Leung CFA ¶36
5. In the light of the Court of Final Appeal’s decision in HKSAR v Lai Chee Ying
[2021] HKCFA 3, discuss whether or to what extent the HKSAR National
Security Law is subject to constitutional review by a HKSAR court as regards
its compatibility with the Basic Law. Lai Chee Ying ¶¶33-37
September 2022
