UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW

Constitutional Law (LLB) (2024-2025)

TUTORIAL WORKSHEET 3

This Worksheet consists of Sections A and B.

SECTION A

Preparation required

In this part of the tutorial, we will continue to explore issues of

interpretation of the Basic Law and constitutional jurisdiction of the Hong
Kong courts – issues which we started to explore in Section B of Tutorial
Worksheet 2.

Please read the relevant materials on the topics of “Autonomy and

Central-SAR Relationship” and “Constitutional Interpretation and
Jurisdiction”. 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

1. Construct a timeline of the Hong Kong courts’ positions on

whether they have powers to review NPC and NPCSC acts for
compatibility with the Basic Law and to disapply those that they
consider to be incompatible with the Basic Law.

- 1997 Ma Wai Kwan p.24: Regional courts had no jurisdiction to query the validity
of any legislation or acts passed by the Sovereign. There was no legal basis to do
so. Therefore the HKSAR courts could not challenge the validity of the NPC
Decisions or Resolutions or the reasons behind them which set up the Preparatory
Committee as such decisions and resolutions were acts of the Sovereign. HKSAR
courts could not examine those decisions and resolutions to see if they were
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 consistent with the Basic Law or other policies, nor could they examine why the
Preparatory Committee set up the Provisional Legislative Council in exercising the
authority and powers conferred on it by the NPC to carry out the Sovereign’s
decisions and resolutions
- However, there was no authority which prohibited the courts from examining whether
such legislation or imperial act existed (opposed to validated), what its scope was
and whether what was done in Hong Kong was done pursuant to such legislation or
imperial act. In the context of the present case the HKSAR courts had power to
examine: (i) whether there was any NPC decision or resolution setting up or
authorising the setting up of the Preparatory Committee; (ii) whether there was any
Preparatory Committee decision or resolution setting up the Provisional Legislative
Council and (iii) whether the Preparatory Committee had in fact set up the
Provisional Legislative Council and whether this Provisional Legislative Council was
in fact the body which was set up pursuant to the decisions or resolutions of the NPC
and the Preparatory Committee. Once the courts were satisfied with these, they could
go no further
- 1999 Ng Ka Ling no.1 p. 40: (The courts of HKSAR) undoubtedly have the
jurisdiction to examine whether legislation enacted by the legislature of the
HKSAR or acts of the executive authorities of the HKSAR were consistent
with the Basic Law and, if found to be inconsistent, to hold them to be invalid.
…did have the jurisdiction, subject to the provisions of the Basic Law, to
examine whether any legislative acts of the NPC or its Standing Committee
were consistent with the Basic Law and the duty to declare such acts to be
invalid if found to be inconsistent. Such jurisdiction of the HKSAR courts was
derived from the Sovereign.
- Ng Ka Ling No.2: the Court accepts that it cannot question, the authority of the
National People’s Congress or the Standing Committee to do any act which is
in accordance with the provisions of the Basic Law and the procedure therein.
Is Ng Ka Ling No.1 right not to follow Ma Wai Kwan?
Art 160 showed no theme of continuity since it is a new era?
CFA: since you made this law, you shall follow this law
After the judgment, the government: many mainlanders would come to HK and HK could not
bear such burden (initiated the request to interpretation): may not be because of wanting to
increase the legitimacy of its reasoning as CFA do not need to go so far to make such
conclusion (not a part to come to the conclusion in Ng Ka Ling)
1999 Lau Kong Young
 Para 62: NPCSC has power to make interpretation under BL 158(1) + interpretation is
binding on courts in HKSAR.
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 Ng Ka Ling: CFA: can review the acts in NPCSC if contrary to BL? (the court would
be more careful after this to take into account of the central government’s view)
-
- Ng Kung Siu (1999):
- About localized national flag: ban burning of national flag -> P tried to argue it is
disproportionate to restrict his freedom of expression (destroying the national flag can
be an expression)+ application of mainland law-> failed
- Court: no need to see HK national flag ordinance as equivalent. HKNFO is simply a
local legislation

- reviewing ordinances legislated to apply the PRC Law on the National Flag=>
did not arouse controversy as the court held that it did not contravene BL
(decided whether ordinances Section 7 of the National Flag and National
Emblem Ordinance (116 of 1997) and s 7 of the Regional Flag and Regional
Emblem Ordinance (117 of 1997) were justified restrictions on the right to
freedom of expression and therefore, did not contravene the Basic Law. These
provisions were necessary for the protection of public order (ordre public).
The legitimate societal interests in the protection of the national flag and the
legitimate community interests in the protection of the regional flag were
interests which were within the concept of public order (ordre public). The
two provisions amounted to a limited restriction of freedom of expression and
were proportionate to the aims sought to be achieved and did not go beyond
what was proportionate.
- Avoided to rule on whether to apply acts of NPCSC: not necessary to rule on
this issue (maybe because of Ng Ka Ling)
- 2015: Leung Lai Kwok Yvonne [2015] HKCFI 929
- – Indicated in obiter that Hong Kong courts have no jurisdiction to challenge the
st
NPCSC’s August 31 decision

- – “First, it must be noted that the applicant has at least impliedly accepted (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.” (at [30], emphasis added)

- Leung and Yau

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 th
- –Issue: does the NPCSC’s 5 interpretation constitute an amendment of the BL

- Leung: Interpretation amounts to an ‘amendment’ of BL without complying with

procedure under BL159, and it goes beyond art 104 and is therefore not binding

- Yau: interpretation is made under local law but not under BL 158, date of
commencement is the date of promulgtion

- – CA 2016: this question must be determined by Mainland law because the

exercise of interpretation of the Basic Law under PRC law is one
conducted under a different system of law to the common law
system in force in the HKSAR, and includes legislative interpretation
which can clarify or supplement laws

- – CFA 2017: not grant leave to hear the issue; affirms that NPCSC interpretations
bind HK courts (Ng Ka Ling: we cannot review legislature made by NPCSC if
within BL; but (implied: can review if not comply with BL); now it may not be
consistent as if the decision is not in line with BL, binding of such interpretations can
bypass the such review by the courts)

- Kwok Cheuk Kin: Co-location: CFI: mainland has no jurisdiction; CA Para 66:
reason why the court thinks NPCSC decision is binding (in effect, but not expressly):
NPCSC has the ultimate authority and power to decide if a subject matter lying at the
interface of the 2 systems confirms with Constitution and BL
- But Court did not say so expressly: no jurisdiction to assess whether NPCSC co-
location decision was valid under HK law (why did not the court take the easy
way out to say that the decision was binding?)

- Lai Chee Ying (2021) [37]: about bail (no presumption of innocence on the
issue of bail)
- reiterated Ng Ka Ling (No 2), legislative acts by NPC or NPCSC leading to the
promulgation of the NSL as a law of the HKSAR, done in accordance with the
provisions of the Basic Law and the procedure therein, are not subject to review on
the basis of any alleged incompatibility as between the NSL and the Basic Law or the
ICCPR as applied to Hong Kong.
- – Reasserts the “Clarificatory Statement”, which has been sidelined by courts in
recent years

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 - – But understood the Statement as saying that if NPC/NPCSC acts complied with the
vires requirements of the BL, then they cannot be reviewed for compatibility with
other BL provisions. For the first time, CFA suggested that its review power over
Mainland acts (if any at all) is restricted to vires review.

- – In assessing whether the NSL met the vires conditions of the BL, the CFA either
gave full weight to what the NPC/NPCSC said in its explanations ([9]-[29]) or not
gave a binding ruling because this point was not in dispute ([32])

2024 HKSAR v Ng Ngoi Yee Margaret CFA [2024] HKCFA 24 (judgment in relation to the
“818” protest)

 Understood 2021 Lai Chee Ying case as saying that “legislative acts of the NPCSC
are not subject to review on the basis of any alleged incompatibility with the Basic
Law or the ICCPR as applied to Hong Kong.” [33] (Lai Chee Ying: we can
challenge NPCSC acts as long as we follow procedure; but Margaret Ng takes such
interpretation here)
 Ruled out even vires review?

2. What is the “arguability test” for seeking an interpretation of the

Basic Law from the NPCSC?
Congo [398

Cora Chan: Threshold test: The majority diverged with Bokhary P.J. on whether
reference must be sought, but they seemed to have agreed that there is only a need to
interpret (as opposed to merely apply) an excluded provision if such provision is
reasonably capable of bearing two or more different meanings (loaded definition of
interpretation) ; if the meaning of the provision is clear, there is no need to interpret,
only a need to apply it. In other words, according to this line of jurisprudence,
arguability is a requirement of the necessity condition.

(understanding: need to have good arguments if the court does not need to reference
to NPCSC => argue whether if such provision is capable of 2 or more meanings=>
falls into necessity (whether provisions needed to render judgment ))

Ng Ka Ling No.1 p.54: Arguability as threshold: The arguability test is the test

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 for determining whether the arguments are arguable for the court to NOT
make reference to the NPCSC under art 158 (then consider classification
and necessary conditions)

Vallejos: the court intimated that the arguability test is a standard of

review for assessing whether the necessity and classification
conditions are met rather than a separate enquiry: [103]“Underlying
any consideration by the Court whether or not to refer under art 158
is the requirement of arguability ... [This] factor is implicit in Article
158(3) ...”.

Cora: Should not be implemented in HK law, no need to reference to the higher court
Hk law adopted interpretation approach, may not be same as civil law
EU law ruled sth on precedents, should implement in our systems as a whole
Arguability test: court: if there are arguments among majority and minority=> it is
arguable, need to seek interpretation

3. What is the “predominant test” for seeking an interpretation of the

Basic Law from the NPCSC? What is the court’s rationale for
developing this test? Should the CFA continue to adopt this test in
determining whether to seek an interpretation of the Basic Law
from the NPCSC?

If two provisions involved, provision A being an excluded provision and provision B

being a non- excluded provision, CFA should only seek reference when provision A is the
predominant provision to be interpreted (Ng Ka Ling)

Ng Ka Ling No. 1 p.55: As a matter of substance, what predominantly is the provision

that has to be interpreted in the adjudication of the case ? If the answer is an excluded
provision, the Court is obliged to refer. If the answer is a provision which is not an
excluded provision, then no reference has to be made, although an excluded provision is
arguably relevant to the construction of the non-excluded provision even to the extent of
qualifying it.

p.55 Rationale:
Art 158 requires a reference to NPCSC of the interpretation of the relevant excluded
provisions only. The Article does not require a reference of the question of interpretation
involved generally when a number of provisions (including an excluded provision) may be
relevant to provide the solution of that question.

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Why don’t just throw everything to NPCSC (can be of marginal relevance)? (can also include
other, according to BL 158 (3) first half. Maybe minor in effect also)=> read cora’s article
(Cora Chan 2014: excluded matters are drawn to widely=> then the integrity of the common
law system will be tarnished.=> Bokhary’s judgment in Congo: harm OCTS, sth should be
under HK to decide)
st
Lau Kong Yung p.41: Predominant test not overruled but was doubted by NPCSC in 1

Interpretation; subsequent courts (Lau Kong Yung) said they may revisit test in future

The Preamble to the Interpretation expressed the view that before judgment the Court had not
sought an interpretation of the relevant provisions of the Standing Committee “in compliance
with the requirement of Article 158(3)”.

Should continue such approach

 BL only requires a reference to NPCSC for excluded provisions, if relevant

provisions considered, it is more than necessary to reach the aim, which is to govern
the affairs which are the CPG’s responsibility or concerning the relationship
between the Central Authorities and HK
 BL 158 “However, if the courts of the Region, in adjudicating cases, need to interpret
the provisions of this Law concerning affairs which are the responsibility of the
Central People's Government, or concerning the relationship between the Central
Authorities and the Region, and if such interpretation will affect the judgments on
the cases, the courts of the Region shall, before making their final judgments which
are not appealable, seek an interpretation of the NPCSC”=> Aim of BL158 is stated
expressly

 While independent judicial power is vested in HKSAR courts according to BL19, the
courts only have no jurisdiction power over acts of states such as defence and
foreign affairs=> a violation of BL if affairs more than those out of stated (foreign
affairs, defence and affairs which are the CPG’s responsibility or concerning the
relationship between the Central Authorities and HK) are governed by NPCSC

 Even if the relevant provisions ultimately may be so important that affected the
outcome of the case and NPCSC think there is a need to interpret BL, it can initiate
by the reason of such relevant provision fall in to the affairs which are CPG’s
responsibility or concerning the relationship between the Central Authorities and
HK

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SECTION B

Preparation required

In this part of the tutorial, we will study the political system of the
HKSAR. Please read the relevant parts of the reading materials (on
Moodle) for Topic 4 (the political system). 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

Question 1

In Cheng Kar Shun v Li Fung Ying [2009] 4 HKC 204 (Reading 4(2)(2)),
Cheung J (as he then was) said (at para. 220 of his judgment):

“ ... the courts of the Hong Kong Special Administrative Region do not,
as a rule, interfere with the internal working of the legislature.
Exceptionally, where questions of whether the Legislative Council, in
going about its business, has acted in contravention of the provisions of
the Basic Law arise, the courts do have jurisdiction to intervene. But the
jurisdiction must be exercised with great restraint, having regard to the
different constitutional roles assigned under the Basic Law to different
arms of the government.”

The above principle has also been applied in the case of Leung Kwok
Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR
689 (Reading 4(2)(3)). Explain the rationale behind this principle.

Leung Kwok Hung:

Appellant’s argument:

- art 73(1) => Legco has a right to participate in the legislative processes of LegCo and makes
compliance with the provisions of the BL and the Rules a condition of the validity of
legislation enacted by LegCo.

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 - Art73(1)"The Legislative Council of the Hong Kong Special Administrative Region shall
exercise the following powers and functions;(1) To enact, amend or repeal laws in accordance
with the provisions of this Law and legal procedures"

- rule 92 conferred no power on the President to close the debate and that, accordingly, non-
compliance with the Rules vitiated the amendments which were subsequently enacted because
art 73(1) stipulates that laws be made "in accordance with the provisions of this Law and legal
procedures".

Rationale for non-intervention principle: (Leung Kwok Heung [27]-[32])

- Legco function: (1) make law (2) To examine and approve budgets introduced by the
government; (3)To approve taxation and public expenditure; (4)To receive and debate
the policy addresses of the Chief Executive; (5)To raise questions on the work of the
government; (6)To debate any issue concerning public interests;"
- The important responsibilities of LegCo, notably its law-making function, require that
it should be left to manage and resolve its own internal affairs, free from intervention
by the courts and from the possible disruption, delays and uncertainties which could
result from such intervention. (doctrine of separation of power)

- Reduce/ eliminate the prospect of pre-enactment challenge to proceedings in LegCo

and the validity of laws made by LegCo based on irregularity in its proceedings,
unless irregularity amounts to non-compliance with a requirement on which the
validity of a law depends.

- Presumption of the principle: the courts will lean against an interpretation of a

constitutional provision that makes compliance with procedural regularity in the law-
making processes of a legislature a condition of the validity of an enacted law.

Is there any inconsistency between this principle and the court’s decision
in the “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)
(Reading 3(5)(2))?

Consistent:

- In Leung Kwok Hung, the context was the appropriateness of court intervention in the
legislative process where the President of Legco had made a decision in relation to

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 the length of debate on a bill which had been the subject of attempts to filibuster it.;
the rationale is to prevent law-making function to be interfered by other authorities or
court; but decisions to decide on whether a LegCo member has taken an oath does not
deal with law-making or any important responsibilities of LegCo
- Rationale only reduces/ eliminates pre-enactment challenges APART from the
irregularities NOT in accordance of BL or legal procedures; Leung Chung Hang:
unwillingness to take oath is not in accordance with BL104=> falls outside the scope
of non-intervention principle

- When falls outside the scope, the court is duty bound to consider whether Leung and
Yau took the oath when BL 104 imposes a constitutional requirement
on a member of Legco validly to take the Legco oath (in any case,
overrides non-intervention principle in common law)

Inconsistent:

- appointment of LegCo is may affect future law-making: rationale of scope of duty of

LegCo are to represent the citizens which voted, Leung and Yau are voted by the
citizens and they will exercise such duties in the future=> disqualifying them may
interfere future law-making and other functions of LegCo (Rebuttal: a narrow
meaning of ‘internal affairs’ has to be considered, only those directly dealing with
law making functions, taxation etc, instead of including decisions on oath taking
which indirectly deals with law-making in the future: if so, potentially all affairs can
be classified as ‘internal affairs’ and the courts will not be able to check and balance
the legislature)

Question 2

Mr Zhao Xiaoming, then Director of the Liaison Office of the Central

People's Government in Hong Kong, gave a speech on “Understand the
Features of Hong Kong Political System Correctly” at a symposium held
on 12 September 2015 to mark the 25th anniversary of the making of the
Basic Law of the HKSAR. He said (in translation):

“... Hong Kong does not have a political system with separation of three
powers. ... One should not simplistically believe that so long as executive,
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legislative and judicial organs are separately established and there exist
checks and balances among them, then a political system practising
separation of three powers exists. ...

Given the nature and features of this regional political system, and given
the existence of the central authority’s power besides those of the
executive, legislature and judiciary of the HKSAR, the political system of
the usual separation of powers among three branches, which is often
established on the basis of a full mode of power of a sovereign state, is at
most only of referencing and consulting value to the HKSAR, but not
completely applicable to the HKSAR. ...

Because of his status as ‘Dual-Heads’ and his ‘Dual- Responsibilities’,

the Chief Executive has a special legal status that transcends the
executive, legislature and judiciary. The Chief Executive lies at the heart
of the operation of powers of the HKSAR, and serves the function of a
nexus below the Central Government and above the three powers of the
HKSAR. ...”

Do you agree with Mr Zhang’s views on the political system of the Hong
Kong Special Administrative Region? To what extent are the cases of Yau
Kwong Man v Secretary for Security, HCAL 1595/2001 (Reading 4(3)),
and Leung Kwok Hung v President of Legislative Council [2007] 1
HKLRD 387 (Reading 4(2)(1)) relevant to the debate about whether the
HKSAR system of government is or ought to be “executive-led”? Is it
correct to describe the political system of the HKSAR as a system of
“executive-led” government?
CPG: HK should follow the pre-1997 political model=> executive-led; but HK courts
may have different views on the separation of power

Why did government not say forget about separation of power? Is it playing with
words by saying separation of power but executive-led?
- Show respect to BL
- Courts can uphold common law approach to this constitutional framework; so
courts did not say: NPCSC decisions must bind in HK
Agree
Points against
- unconstitutional to say that there is no separation of powers:
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 BL art 2 :The National People's Congress authorizes the Hong Kong Special
Administrative Region to exercise a high degree of autonomy and enjoy executive,
legislative and independent judicial power, including that of final adjudication, in
accordance with the provisions of this Law.
BL art 73: LegCo examine and approve budgets introduced by the government,
receive and debate the policy addresses of the Chief Executive, raise questions on the
work of the government, may pass a motion of impeachment to CPG if CE was in
serious breach of law or dereliction of duty and refused to resign=> Checks and
balance=> separation of power
BL art 85: The courts of the Hong Kong Special Administrative Region shall exercise
judicial power independently, free from any interference.

Points for
- many interpretations for separation of power (in BL2), the US aims to have
separation of power but the judges are nominated by the president, the UK aims to
have separation of power but legislature higher than judiciary (free from its
overruling); same for HK
art 48: CE can appoint or remove judges, sign bills or budgets passed by LegCo; art
49: may return bill to LegCo if he finds the bill not compatible with interest of HK;
art 50: if CE refuses to sign a bill passed the second time, he may dissolve LegCo
(must consult ExCo)=> ultimate power to appoint members in other branches or
making bills lies in the CE=> CE above the 3 powers
- art 73: LegCo powers are merely checks and balance (only referential value in
separation of powers) on work of executive, but did not indicate that it has an equal
status as the executive branch: no ultimate power in forcing the CE to resign (can
only pass a motion of impeachment)
- art 85: independent judicial power only in adjudicating cases, but not in terms of
balance with executive power (power to appoint judges is vested in CE according to
BL104)
- Ultimately, BL complements together to uphold national unity and territorial integrity
and ‘maintaining the prosperity and stability of HK’
- No in-depth discussion in cases regarding origin and applicability of ‘separation of
power’ in HK in cases

Cases relevant to the debate, to a large extent correct to describe HK as an executive led
government
Leung Kwok Hung: para 66 (enshrines separation of power), 67 (separation of power while
executive led, not contradiction)
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Rule 57(6) of the Rules A of Procedure provides that a committee stage amendment which
has a charging effect may only be proposed by the Chief Executive; a designated public
officer; or a member of LegCo if the Chief Executive consented to in writing =>
constitutional with BL
Insofar as r.57(6) diminished the powers and functions of legislators, it was a diminishment of
long-standing and found in other common law and civil law jurisdictions. It was founded on
the separation of powers, the particular constitutional principle being that no charge on public
funds could be incurred except on the initiative of the Executive and the administration.

- [9] In the United Kingdom, Parliament is supreme. The courts are confined to
interpreting and applying what Parliament has enacted. Parliament has exclusive
control over the conduct of its own affairs. The courts will not permit any challenge
to the manner in which Parliament goes about its business. If there are irregularities
that is a matter for Parliament to resolve, not the courts.=> many interpretations for
‘separation of powers’
- Hartmann J acknowledged that HKSAR has an executive-led government, while the
term ‘separation of power’ was used, Hartmann J highlighted that BL ‘makes it
evident that the executive, the administration and the legislature are each to perform
their constitutionally designated roles in a co-ordinated and co-operative manner for
the good governance of HK: [84]As for the position in Hong Kong prior to the
change of sovereignty, the principle of English constitutional law that there could be
no charge on public funds unless ti was at the initiative of the Crown, was integral to
the laws and procedures regulating our Legislative Council. => executive-led

Yau Kwong Man:

- S67C of CPO (cap 221) empowered the Chief Executive to determine the minimum
term within such indeterminate sentences that offenders in the position of the
applicants must serve in order to address the retributive and deterrent elements of
their offences.
- The applicants sought judicial review of the validity of s 67C contending that it was
inconsistent with BL 80 and art 14(1) of the ICCPR. (They also sought judicial review
of the validity of s 12(2) of (Cap 524) and contended that it was inconsistent with art 9(4) of
the ICCPR and art 8 of the Basic Law .)
- Court: separation of powers implicit in BL=> In terms of art 80 of the Basic Law,
judicial power was vested in those appointed to hold judicial office; what the
legislature could not do was to place judicial power in the hands of the executive.
(determining min term of sentences is placing judicial power in his hands)

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Not to put judicial power in the hands of the government is the separation of power, but did
not rebut that the system of separate powers is executive-led=> CE should be above the 3
powers but not in adjudicating sentences, his ultimate power in judicial branch should be only
limited to appointment of judges (to be consistent with BL80)=> still executive led while
allowing separation of powers

Question 3

Article 48(4) of the Basic Law empowers the Chief Executive “to issue
executive orders”. In the light of the courts’ decisions in Association of
Expatriate Civil Servants of Hong Kong v Chief Executive [1998] 1
HKLRD 615 (Reading 4(4)(a)) and Leung Kwok Hung v Chief Executive,
HCAL 107/2005 (Reading 4(4)(b)), explain the scope of this power and
its limits.

Association of Expatriate Civil Servants of Hong Kong v Chief Executive

A argued that

- under the previous system which existed prior to 1 July 1997, the procedures by which public
servants were appointed and dismissed had been established by the legislature or with
legislative approval, and that system could not be replaced solely by an executive order.
- the procedures did not amount to “legal” procedures of the kind contemplated by art.48(7)
which it G was argued required legislative approval. A claimed that the word “legal” in
art.48(7) meant “prescribed by law”, and that “prescribed by law” meant that legislative
approval was required.

- Basic Law did not permit orders made by the Chief Executive under art.48(4) to have
retrospective effect. Alternatively, if the instruments were regarded as subordinate legislation,
they were unlawful as such legislation could not be H retrospective unless authorised by the
enabling legislation.

Held:

- Whilst there were undoubtedly constitutional differences between Hong Kong’s previous
system and the current system, the maintenance of the previous system did not require the
current system to have legislative approval

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- Chapter IV of the Basic Law concerned Hong Kong’s political structure, of which s.6
related to public servants. Thus the power conferred on the Chief Executive by
art.48(7) had to be construed in the light of the provisions in s.6, specifically art.103.

- the procedures laid down by the executive order maintained Hong Kong’s previous
system of recruitment and discipline in the public service and were therefore lawfully
established, it followed that those procedures fell within the phrase “legal
procedures” in art.48(7). => (1) Scope: executive orders can be made to appoint or
remove holders of public office (this is in accordance with legal procedures, no
need to be done by legislature)

- The Chief Executive had little alternative but to make the instruments retrospective.
They could reasonably be regarded as an important policy decision requiring
consultation B with the Executive Council. => (2) scope: can make retrospective
order through consulting ExCo

Leung Kwok Hung v Chief Executive

It is the applicants' case that the Executive Order, while it does not proclaim itself to be a
form of legislation, seeks nevertheless to fill a legislative vacuum and thereby take the
place of legislation. As such, it purports, by authorising and regulating covert
surveillance, including the interception of private communications, to have legislative
effect.

the Executive Order does not constitute a body of "legal procedures' for the purposes of
art.30.

- CE: on a proper construction of BL30 , the phrase 'in accordance with legal
procedures', being broad in its language, includes procedures that are legally
established under a statutory or other legal power, duty or function and is not to be
equated with the phrases 'in accordance with law' or 'prescribed by law'.
- [145]: the requirement that the right to freely and privately communicate with others
'shall be protected by law' must be read as being complemented by the provision that
any limitation of the right must be 'in accordance with legal procedures'. Those legal
procedures, therefore, are not distinct from but are part and parcel of the protection of
the right which must be provided by law.=> (3) limits of powers of executive order:
cannot infringe the right of privacy (which is protected by Bl30), the legal
procedures to inspect communication must be prescribed by law, but not
executive order

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Question 4

In the case of Kwok Wing-hang v Chief Executive in Council [2019]

HKCFI 2820 (CFI), [2020] HKCA 192 (CA), [2020] HKCFA 42
(Reading 4(5)), the Court of First Instance (CFI) held that the Emergency
Regulations Ordinance (ERO) was at least partially unconstitutional. On
appeal to the Court of Appeal (CA), the ruling of the CFI on this point
was reversed, and the CA affirmed the constitutionality of the ERO. The
CA’s decision on this point was upheld on appeal to the Court of Final
Appeal (CFA).

Why was there a difference in opinion between the CFI (on the one hand)
and the CA and CFA (on the other hand) regarding the constitutionality
of the ERO? Which opinion do you think is more persuasive?

[Note: For the purpose of this question, you need not consider or discuss
the legal issues concerning whether the Prohibition on Face Covering
Regulation or any part thereof is invalid because it imposes excessive
restrictions on rights and fails to satisfy the “proportionality test”.]

CFI: the ERO was incompatible with the Basic Law, having regard in particular to
arts.2, 8, 17(2), 18, 48, 56, 62(5), 66 and 73(1) thereof.

- BL2: legislative power is to be exercised “in accordance with” the provisions of the
Basic Law.
- BL8: the laws previously enforced should continue to be enforced
- BL17(2): laws enacted must be reported to NPCSC
- BL18: National laws shall not be applied in the Hong Kong Special Administrative
Region except for those listed in Annex III to this Law.
- BL 48: powers of CE
- BL56: CE shall consult the Executive Council before making important policy
decisions, introducing bills to the Legislative Council, making subordinate
legislation, or dissolving the Legislative Council.
- BL62 (5): government shall draft and introduce bills, motions and subordinate
legislation
- BL66: LegCo shall be the legislature of HK

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 - BL73(1): LegCo shall enact, amend or repeal laws in accordance with the provisions
of this Law and legal procedures.

Held by CFI:

- BL shows that the LegCo is constituted as the legislature of HK. It is given not only
the power but also the function to enact, amend and repeal laws “in accordance with”
the Basic Law and “legal procedures” (art.73(1)).
- the existence of the power for the LegCo by statute to authorise subordinate
legislation to be made is necessarily implied, because the BL expressly includes as
part of the powers and functions of the Executive the making of subordinate
legislation.

- the Executive is not vested with any general legislative power or the general power to
enact, amend or repeal laws, but only the power to sign or refuse to sign bills and the
power to make subordinate legislation.

- For considering the constitutionality of ERO, the court has to consider substance
rather than labels

- The ERO, once invoked, by arming the Chief Executive in Council with general
legislative power, created in Hong Kong a separate source of laws that were primary
legislation and it was not under scrutiny; LegCo would be left in a diminished role

- ERO so wide in scope (1. ERO directly legislated by CE, not leaving to another body
to devise the detailed legal norm, 2. ERO has a wide scope 3. the powers may be
invoked on any occasion which the CEIC “may consider to be an occasion of
emergency or public danger”, neither of which is defined in the statute. 4. no time
limit on the validity and force of the regulations made under the ERO, 5. punishment
up to life imprisonment, control by LegCo so precarious=> CE legislating whatever
he likes in emergency (backdoor of legislative power) not compatible with BL

Held by CA:
- Pre-1997 LegCo could delegate its legislative powers to the Governor to make
subordinate legislation and BL resembles pre-1997 law
- LegCo could under the common law delegate its legislative powers to the Chief
Executive to make subordinate legislation under emergency (not defined in ERO)=>
speedy and flexible enough for the governor to legislate effectively [100]
- CE must be bona fide in legislation in emergency, certain requirements in

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 ‘emergency’=> CE cannot legislate whatever he likes in an emergency
- Under the theme of continuity, the Basic Law contemplated that the ERO under
which the Chief Executive of the HKSAR had the power to make emergency
regulations was one of the integral options for tackling emergency and public danger.
- ERO could only be evoked when emergency (can be objectively gauged by the
prevailing circumstances); and the decision is reviewable under Wednesbury
unreasonableness. (Negative vetting can be the safeguard: LegCo is not overridden
here as it can exercise the negative vetting power)
- There was nothing in the Basic Law or anywhere else to indicate that as a matter of
Hong Kong common law the LegCo could not delegate to the CE the power
prescribed by s 2(2)(g) of the ERO in emergency or danger
- . If the ERO were held to be unconstitutional, it would leave a significant lacuna in
the law for dealing with emergency and public danger generally. CE would be
deprived of the power to respond swiftly, flexibly and sufficiently by making the
necessary emergency regulations even though the circumstances clearly warranted it
and it was in the public interest to do so.

Held by CFA:

- LegCo can confer power to someone to make subordinate legislation (though not
primary legislation) subject matter required the delegation of wide and flexible
legislative power

CFI para 97
- Focus on BL itself

CFA para 88-93: Rejected CFI’s theme of continuity

CFA para 29-30

CFA para 37-75

- Para 42: 5 features of an emergency situation. Point e stated that “If a sudden
emergency arises, it may be essential to give executive wide and flexible
legislative process whether or not the legislative is sitting.”
- Para 75: rejection of continuity theme （no need to deal with this issue as no
impermissible delegation argument）
- Para 57, 61: LegCo can invalidate the subsidiary law by negative vetting.
- Para 66: Long overdue -> subjective to challenge in court. But no power to set

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 time limit.
-

- The power of the Chief Executive in Council to make emergency regulations were
controlled and restrained by the internal requirements of the ERO, by the courts, by
LegCo, and by the Basic Law of the HKSAR=> no impermissible delegation
a. power to make emergency regulations could only be invoked if and when there
existed an occasion which the CEIC considered to be one of emergency or public
danger + required good faith

b. discretion accorded to the CEIC in determining whether an “emergency” or “public

danger” existed was fully consistent with the very nature of the ERO.

c. exercise of such power was subject to the court’s control on the bases that the
conclusion was not Wednesbury unreasonable

d. LegCo retained full control of any regulations made under the ERO by virtue of its
power, whether by negative vetting, by virtue of art.73(1) of the Basic Law or
otherwise, to amend or repeal the regulations

- To the extent that it concerned the ERO, the prescribed by law requirement was
directed at actual restrictions on the rights and freedoms enjoyed by Hong Kong
residents, not at empowering legislation which merely authorised the making of
subsidiary legislation which, if and when made, might seek to restrict fundamental
rights

Difference
- CFI focuses on LegCo power given by BL and wide scope of ERO
- CA focuses on theme of continuity and delegation of power
- CFA focuses on the restraints on the CE to say that there is no impermissible
delegation

CFA is more persuasive

- No definition of ‘emergency’ in ERO (just some common examples listed in [89] of
CA judgment)=> the flexibility for CE to legislate immediately will be too high when
he shall not be a primary source of law (such power not given by BL48) (But it is
hard to foresee what is emergency, so it is reasonable to leave some flexibility
here)

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 - CFI did not consider flexibility of CE when considering impermissible delegation of
power, only considered BL text; CFA analysed in details where there was no
impermissible delegation
- CE is not vested with law-making power and LegCo will not be in diminished role=>
only under emergency (which is reviewable by the LegCo even there are some
problems, but if CE cannot make subordinate legislation under emergency, flexibility
to deal with the emergency might be lost)
- Even if ERO is wide in scope, it can be reviewed by LegCo

Trust the government or not trust government that much?

- CFA: more trusting in the government; CFI less trusting
- Courts generally more preferential to the executive arm (Ng Ka Ling: can see
the consequences if not trust government)
Albert Chen: now it may not be emergency, but the emergency order was still in
force=> can challenge why is it still in force

Research essay
- Judgment will be the starting point
- Journal articles on this case
- Tutorial questions in previous tutorials; restraints on NPCSC interpretation
- Read the Cora Chan’s journal 2014

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