HCAL185A/2016 CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL

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:

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:

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

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 1^st and 2^nd 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 decision as to whether Mr Leung and Ms Yau have declined or neglected to take the LegCo Oath, and the President’s Decision is only a procedural decision in nature. There are thus no extant substantive decisions that are amenable to judicial review. The judicial review should therefore not be brought against him. Further, in relation to HCMP 2819/2016, it is said that there are no suggestions that the President would not abide by the ruling of this court if it decides to grant the reliefs as sought against Mr Leung and Ms Yau. In that case, there is also no basis for the CE and the SJ to join the President in this action.

16. Before I deal with all these grounds of opposition, it is important for me to first look at the relevant constitutional and statutory frameworks and their proper meanings which provide for the legal context mandating a LegCo member to take the LegCo Oath and as to when he would be disqualified in failing to do so.

17. The BL is the written mini-constitution for Hong Kong. BL104 provides as follows:

18. It is thus a constitutional requirement under BL104 that LegCo members (as well as the CE, principal officials, Executive Council members and judges of the Hong Kong Special Administrative Region) are mandatorily required to take an oath when assuming office.

19. On 7 November 2016, the Standing Committee of the National People’s Congress of the People’s Republic of China (“NPCSC”) in the exercise of its power under BL158(1) pronounced an interpretation (“the Interpretation”) of the meaning of BL104. The Interpretation is as follows:

20. Although the courts in Hong Kong are authorised by BL158(2) and (3) to interpret provisions of the BL in adjudicating cases, the NPCSC has the final power of interpretation of the BL as provided under BL158(1) and (3) and Article 67(4) of the Constitution of the People’s Republic of China. An interpretation made by the NPCSC is binding on all the courts of Hong Kong, and the courts are under a duty to follow it. This has been well recognised by the Court of Final Appeal in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, where Li CJ said at pp 222G and H as follows:

21. In the premises, the Interpretation is binding on this court. In this judgment, unless otherwise stated, whenever I refer to the meaning of BL104, it is a reference to the meaning as set out in the Interpretation.

22. Hence, essentially for the present purposes, under BL104, a LegCo member when assuming office must take the LegCo Oath as prescribed under the ODO (being the laws of the Hong Kong Special Administrative Region).[2] He shall take it solemnly and sincerely and in compliance with the LegCo Oath both in substance and in form. If he intentionally declines or fails to so take the LegCo Oath, whether in form or in substance, the oath taken is invalid and he shall be disqualified from assuming the office.

23. On the other hand, as submitted by Mr Yu SC for the CE and the SJ, independent of the Interpretation, the laws of Hong Kong as set out in the relevant provisions ODO, when properly construed, indeed carry effectively the same meanings and legal effects as these essential meanings of BL104. This is what I would turn to next.

25. Section 21 of the ODO further provides for the legal consequence of non-compliance by a person who is requested to take an oath as required under the ODO as follows:

26. The construction of the meaning of these provisions of the ODO is for this court, and under common law the court should adopt a purposive construction, read in their proper context of the whole statue.[3]

27. In this respect, as rightly submitted by Mr Yu, on a proper purposive construction of sections 16, 19 and 21 of the ODO, they have the following meanings and legal effects in relation to the taking of the LegCo Oath by a LegCo member.

28. First, the relevant provisions in the ODO are to reflect and underline the constitutional requirements in BL104. If a LegCo member swears his oath in a manner or form that is inconsistent with the requirements set out in the ODO, his oath offends the constitutional requirements under BL104: Leung Kwok Hung, supra, at paragraph 22, per Hartmann J.

29. Second, a LegCo member has to take the LegCo Oath “as soon as possible” after the commencement of his term of office, and that must be done before he assumes his office. This is borne out by the plain and express words of BL104 and section 16 of the ODO, and supported by Leung Kwok Hung, supra, at paragraph 22.

30. Third, a LegCo member must take the oath in the same form, manner and substance as the LegCo Oath as expressly prescribed under section 19 and Schedule 2 of the ODO. It is not any oath that may be devised by a LegCo member provided that the “oath” meets the two obligations set out in BL104: Leung Kwok Hung, supra, at paragraphs 24 - 27. A fortiori, if the “oath” taken does not even meet any of the two obligations set out in BL104, it is not a valid oath.

31. Fourth, an oath is a solemn declaration. In its original form it was invariably a promise to one’s deity. The ODO does not allow for any real difference in the form and substance of the oath itself as to how a person wishes to take it. Hence, a LegCo member who seeks to alter the form, manner or substance of the oath when taking it will offend BL104 and therefore be unlawful and of no effect: Leung Kwok Hung, supra, paragraphs 36 - 40.

32. An oath must be taken solemnly and sincerely is consistent with the trite position under common law that taking an oath is a form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. Similarly an affirmation in lieu of oath binds a person to live by what he undertakes. In particular, an oath of allegiance or loyalty means that a person promises and binds himself to bear true allegiance to a particular sovereign and government and to support its constitution.[4] The obvious purpose is to ensure the person concerned (such as a member of legislature) makes a commitment to live by the constitutional process; he has to owe allegiance to the constitution, and he has to uphold the sovereignty and integrity for the country. It is not a mere formality or empty form of words. The purpose of prescribing the form is to induce a sense of subordination to the constitution in men of all faiths. It has to be followed “in letter and spirit”. See: Haridasan Palayil v The Speaker, Kerala Legislative Assembly AIR 2003 Ker 328, 2003 (3) KLT 119 at paragraphs 21, 24, 30 and 31; AG v Bradlaugh (1885) 14 QBD 667 at 696 - 698, per Brett MR, at 707 - 709, per Cotton LJ, and at 716 - 717, per Lindley LJ.

33. In the premises, the fundamental and essential question to be answered in determining the validity of the taking of an oath is whether it can be seen objectively that the person taking the oath faithfully and truthfully commits and binds himself or herself to uphold and abide by the obligations set out in the oath.

34. Fifth, read together with the above provisions and context, section 21 of the ODO when properly construed means that if a LegCo member “declines or neglects” to take the LegCo Oath whether in form or in substance when he is requested to do so, he “shall” (thus must)vacate his office if he has entered upon it, or must be disqualified from entering upon his office if he has not done so. In other words, under the clear and express words of section 21 of the ODO, once it is shown that a LegCo member declines or neglects to take the LegCo Oath when requested to do so, he can no longer continue to be qualified as a LegCo member and act as such; in which case, there is no question that he could seek to take the oath again.

36. The above proper meanings and effects of the relevant ODO provisions are reached by application of common law principles of construction and supported by authorities, independent of the Interpretation. They are in any event not disputed or challenged in any material way by counsel for the President, Mr Leung and Ms Yau whether by way of primary or any alternative submissions.

C. WHETHER MR LEUNG AND MS YAU DECLINED TO TAKE THE LEGCO OATH WHEN REQUESTED TO DO SO OR AS REQUIRED UNDER BL104

37. As mentioned above, Mr Leung and Ms Yau in these proceedings have not put forward any positive arguments that they did not decline or neglect to take the LegCo Oath when requested to do so on 12 October 2016.

38. The applicants submit that objectively viewed at, it must be clear and beyond debate that Mr Leung and Ms Yau have declined to take the LegCo Oath when requested to do so. I agree with the applicants as that is incapable of dispute in light of the following.

39. The objective and undisputed evidence shows that Mr Leung and Ms Yau had been duly requested to take the LegCo Oath at the first meeting of the LegCo on 12 October 2016. They had also been reminded repeatedly that they must take the oath in accordance with the form as prescribed by the ODO.[7]

40. Further, objectively viewed against the undisputed acts and manner in how Mr Leung and Ms Yau purported to take the oath on 12 October 2016 as summarised in paragraphs 5 and 6 above, they must be regarded as having manifested an intentional refusal (and thus their “decline”) to take the LegCo Oath, whether in form or in substance. My reasons are these.

41. It is plain that, in referring to “Hong Kong nation” when they first sought to take the oath, and later in mis-pronouncing the words “Republic” and “China”, they did not take the oath in the same form of the LegCo Oath as prescribed by law, and they did that intentionally. Mr Leung and Ms Yau have not suggested otherwise.

42. Further, as submitted by Mr Yu, they also did not objectively intend to take the LegCo Oath in substance as they did not seriously, faithfully and truthfully intend to abide by a declaration to pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and to uphold the BL. It is so as in adopting the way and manner they purported to take oath, they expressed the position that they did not recognise the fundamental constitutional model of “one country, two systems”, which underpins and underlines the BL, and under which the Hong Kong Special Administrative Region was established.

43. As recognised by the Court of Final Appeal in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at 28G-H, the purpose of the BL is to establish the Hong Kong Special Administrative Region being an inalienable part of the People’s Republic of China under the principle of “one country, two systems” in accordance with China’s basic policies regarding Hong Kong as set out and elaborated in the Joint Declaration. The Court of Final Appeal also recognises the fundamental importance of the “one country” in this model as observed by Li CJ in HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442, at 460C-E as follows:

44. Indeed, as emphasized by Mr Yu, the theme and policy of “one country, two systems” runs throughout the BL, as reflected in particular in the following articles:

45. Bearing the above in mind, again as rightly submitted by Mr Yu, the manner and way in which Mr Leung and Ms Yau purported to take the LegCo Oath on 12 October 2016 demonstrate objectively and clearly their intention not to recognise this fundamental constitutional model of “one country, two systems” and the importance under this model of the “one country”:

46. In the circumstances, as submitted by the applicants, Mr Leung and Ms Yau and each of them manifestly refused (and thus declined) to solemnly, sincerely and truly bind themselves to uphold the BL or bear true allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China. Alternatively, at the least, they must have wilfully omitted (and hence neglected) to do so.

47. Section 21 of the ODO should therefore apply and operate to disqualify Mr Leung and Ms Yau from continuing to be a LegCo member, and the court should proceed to declare as such.

48. However, Mr Pun SC and Mr Dykes SC respectively raise a number of grounds for Mr Leung and Ms Yau to submit that the court should not and cannot intervene in these matters. I will now look at these grounds in turn.

D1. The court should not intervene in these cases under the non-intervention principle

49. Under this ground, Mr Pun argues that the taking of the LegCo Oath by LegCo members and the President’s Decision to allow Mr Leung and Ms Yau to take the oath again belong to the “internal business” of the LegCo. In the premises, under the established non-intervention principle, the court should and could not intervene in them. In support of these submissions, Mr Pun relies heavily and principally on the authority of Bradlaugh v Gosset (1884) 12 QBD 271.

51. The non-intervention principle has its origin in common law and is premised on the doctrine of separation of powers in England, where there is no written constitution, and where there is supremacy of the Parliament. However, the scope of this principle as applied in a different jurisdiction must be understood in and limited to the proper context of that jurisdiction, in particular where there is a written constitution.[14] Thus, in present day Hong Kong, where there is the written constitution of the BL and where the BL is supreme instead of the legislature, the court does have jurisdiction under the BL to determine, by declaratory relief, questions such as whether the internal Rules of Procedure enacted by the LegCo (which would be regarded as “the internal matters” of the Parliament under the non-intervention principle in the UK) are consistent with the BL. This has been explained by A Cheung J (as the learned CJHC then was) in Cheng Kar Shun v Li Fung Yung [2011] 2 HKLRD 555 at paragraph 217 as follows:

52. In this respect, the scope of the non-intervention principle as applied in Hong Kong in the context of BL has recently been authoritatively explained by the Court of Final Appeal in Leung Kwok Hung v The President of the Legislative Council (No 1) (2014) 17 HKCFAR 689 (“Leung Kwok Hung CFA”), where the Court said theseat paragraphs 28 - 32 and 39:

53. Distilled from these principles as laid down by the Court of Final Appeal are the following ones which are particularly relevant for the present purposes:

54. Bearing these principles in mind, it is clear to me that the non-intervention principle as applied in Hong Kong does not prohibit the court from determining the matters under challenge in these proceedings.

55. The constitutional requirement to take the oath under BL104 is of fundamental importance. All the most important public officials under the executive, legislative and judicial branches of the Hong Kong Special Administrative Region must take the oath as prescribed and in accordance with the laws set out in BL104 and the ODO before each of them can assume his or her office. As I have explained above, an intentional failure to do so would result in his or her disqualification from assuming the office. In the premises, given that BL104 (incorporating the ODO) has identified and provided for the legal parameters under which the oath-taking requirement is to be complied with, under the principle of non-intervention as explained in Leung Kwok Hung CFA, the court must still“take it under its cognizance in order to determine whether”that act of the oath-taking is valid and compliant with BL104 (together with the ODO).

56. In the same vein, the court must also have the jurisdiction to determine whether the Clerk or the President has the power under BL104 (and the ODO) to make a decision (such as the President’s Decision in the present case) to allow a LegCo member to take the LegCo Oath again if and when it is challenged that the member has already been disqualified in law from doing so under BL104 and the ODO.

57. When considered in the above context, the oath-taking by a LegCo member as mandated by BL104 and a decision made by the Clerk or the President relevant to that act also cannot be properly regarded as the “internal business” of the LegCo for the purpose of the non-intervention principle.

58. In respect, it must also be remembered that BL104 mandates constitutionally not just LegCo members but also the CE, principal officials, Executive Council members and judges of the Hong Kong Special Administrative Region to take the oath before each of them can assume the office. Further, section 21 of the ODO also provides the same consequence for non-compliance of the oath-taking for all these categories of persons, and not just the LegCo members. As such, it does not make sense that somehow only LegCo members (but not all the others) would be excluded from the courts’ jurisdiction to determine whether an oath is taken in compliance with the constitutional requirement implemented through the provisions of the ODO.

59. The authority of Bradlaugh v Gossett relied on by Mr Pun does not assist him.

60. In Gossett, Mr Bradlaugh was returned by election as a member of the House of Commons (ie, the Parliament). Under the Parliamentary Oaths Act 1866, he had to take a parliamentary oath in the House before the Speaker as prescribed by that Act. However, in light of the disruptive conducts he had had before in the House, the House passed a resolution “that the Serjeant-at-Arms do exclude Mr Bradlaugh from the House until he shall engage not further to disturb the proceedings of the House”. In other words, under the resolution, he could not enter the House to take the oath unless he had stopped any acts disturbing the proceedings of the House. Mr Bradlaugh applied to the court for an injunction to restrain the Serjeant-at-Arms from carrying out the resolution. In support of the application, Mr Bradlaugh argued that he had a legal right conferred by the Act to take the oath before the Speaker, and the resolution deprived him of that right. The court therefore should intervene and grant the injunction to protect his legal right provided by the Act.

61. However, the court (Coleridge CJ, Mathew J and Stephen J) refused to grant the injunction on the basis that the resolution was a matter relating to the internal management of the House, and thus the court had no power to intervene whether that resolution was valid or invalid in law.

62. Mr Pun submits that the circumstances of Gossett are similar to the present one. Leading counsel therefore submits that if, under the non-intervention principle, the court cannot intervene in the Parliament’s decision to prevent a member from exercising his statutory right to take the oath, a decision of the President to allow a member to take the LegCo Oath (as in the present case) must similarly be regarded under that principle as a matter relating to the internal management of the LegCo. The court therefore has no power to intervene.

63. I am unable to agree. Gossett is clearly distinguishable and does not apply to Hong Kong directly for two reasons. First, in Hong Kong, the binding authority on the scope and applicability of the non-intervention principle is Leung Kwok Hung CFA. I have already explained above why under the principles laid down in Leung Kwok Hung CFA, the courts have jurisdiction to intervene in the present matters. Second, and in any event, Gossett was decided in the context of parliamentary supremacy and the absence of a written constitution in England. These constituted an important rationale underlying the English court’s decision in that case. As explained above, Hong Kong is very different as we have a written constitution of the BL and legislature is not supreme. These are important material differences in determining the scope and extent of the non-intervention principle. Hence, one cannot simply apply that authority to Hong Kong.

64. Mr Pun also relies on the authorities of R v Chaytor [2011] 1 AC 684 and Baron Mereworth v Ministry of Justice [2012] Ch 325 to support his submissions for the application of the non-intervention principle in the present cases. These cases are similarly concerned with the discussions and determinations of the application of that principle in the UK. For the same reasons I have explained above, they are not directly applicable to Hong Kong and must be read subject to the principles laid down in Leung Kwok Hung CFA. They therefore also do not take Mr Pun’s case any further.

65. Finally, as an ancillary and supporting argument, Mr Pun says, given the non-intervention principle, on a proper interpretation of BL104 and sections 19 and 21 of the ODO, the person administering the oath is the final arbiter of the questions of (a) whether an oath taken is in compliance with the legal requirements; and (b) whether the oath taker has declined or neglected to take the oath when requested to do so. This reinforces, says Mr Pun, the submissions that these matters and questions are related to the “internal business” of the LegCo and hence not subject to the court’s scrutiny under the non-intervention principle. After the issue of the Interpretation, Mr Pun further submits that paragraph (4) of the Interpretation supports this construction.

67. Mr Pun’s submissions are in fact a circular one, which is premised on the correctness of his contention that the non-intervention principle applies in the present case. For the reasons I have explained above, that contention is incorrect. The submissions that the Clerk or the President is the final arbiter in relation to these questions therefore also fall away.

68. Further and in any event, it is plain and obvious that the courts of law in the society are regarded generally and in principle as the final arbiter in adjudicating questions of law, including important questions of constitutional compliance with the provisions of the BL and the questions of compliance with statutory provisions. This is also consistent with our constitutional model where our courts are given the powers and authority to adjudicate cases in accordance with the law: see BL81 - 85.[15] In the premises, a statutory provision could not be construed with the intention to oust the courts’ role in being the final arbiter of questions of law, unless it is clearly and expressly provided for.

69. In this respect, BL104 and sections 19 and 21 of the ODO simply have not provided in any express and clear way that the person who administers the oath is the final arbiter of the questions of the validity of the oath taken and whether someone has declined or neglected to take the oath and therefore has to vacate his office or to be disqualified from entering on it under section 21. Of course, as a matter of necessary implication, that person would have the power incidental to his duty to administer the oath to make a decision on those questions as and when circumstances may practically require. But that is different from saying that it is intended by BL104 or the provisions of the ODO that the person administering the oath is the final decision-maker on those questions.

70. Paragraph (4) of the Interpretation does not assist Mr Pun. It only provides that the person administering the oath has the power to determine whether “an oath taken is in compliance” with BL104 and laws of Hong Kong. It does not provide expressly or impliedly that that decision is a final one. It is consistent with the court’s above observation.

71. On a proper analysis and construction, the courts in Hong Kong must be objectively intended in BL104 and the provisions of the ODO to be final arbiter of those questions.

72. For all the above reasons, I am of the clear view that the non-intervention principle as applied in Hong Kong does not cover the matters under the present challenges in these proceedings. The courts therefore have jurisdiction to adjudicate them.

73. Alternatively, and in any event, I accept Mr Yu’s submissions that section 73 (“section 73”) of the Legislative Council Ordinance (Cap 542) (“LCO”) confers an express jurisdiction to the court to determine matters such as whether a LegCo member has been disqualified from being a LegCo member or has ceased to be one. In the premises, the non-intervention principle in any event should give way to this express jurisdiction conferred to the court by statute in relation to these matters.

75. As submitted by Mr Yu, section 73 therefore expressly gives jurisdiction to the court to determine proceedings brought by the SJ or an elector against a LegCo member who has been disqualified or who has ceased to be one but continues to act or claims to be entitled to act as a member. In the section 73 proceedings, the court can declare that the member so acts or seeks to act while disqualified, and restrain him from doing so. In considering granting those reliefs, the court must be entitled to determine the underlying essential question as to whether the member has been so disqualified.[16] This includes the question of whether a member has been so disqualified under section 21 of the ODO.

76. Thus, even if (which I disagree) the non-intervention principle were initially to cover the questions raised under the present actions, by section 73, the LegCo has expressly conferred jurisdiction to the court to determine them in the proceedings brought thereunder. The non-intervention principle must hence be subject and limited to that extent, and would not prevent the court from determining such a question under section 73 proceedings.

77. Mr Dykes and Mr Pun however argue that section 73 is objectively intended to apply only to those circumstances of disqualification as provided under section 15(1) of the LCO. To supplement this submission, Mr Pun also says section 15 intends to provide exhaustively the circumstances when a member can be disqualified from his office.

80. I note that Mr Dykes and Mr Pun have also raised the point that even if section 73 proceedings can be brought against Mr Leung and Ms Yau in relation to the present challenges, the CE has no locus to bring a section 73 action in HCMP 2819/2016 when suing in his capacity as the CE. I think counsel is right in this part of the submissions. However, this cannot constitute a valid ground to oppose the section 73 action as the SJ (being a party entitled to bring the action under section 73) is also a plaintiff in the action.

81. In the premises, notwithstanding the non-intervention principle, the court must alternatively in any event have jurisdiction to look at and determine the underlying question of whether a LegCo member has been disqualified to be a member under section 21 of the ODO when section 73 proceedings are brought against him, as in the present case.[17]

82. Under this ground, Mr Dykes submits that what were said by Mr Leung and Ms Yau in the oath-taking process are protected by the immunity provided under BL77 and sections 3 and 4 of the LCPPO. Hence, Mr Leung and Ms Yau cannot be sued upon in relation to these matters, and the court cannot even look at them.

86. In its proper context and read together with BL104, the plain and ordinary meaning of the word “statements” used in BL77 is to mean statements made by a LegCo member in the course of official debates on the floor of the LegCo when exercising his powers and discharging his functions as a LegCo member. See also: A v The United Kingdom (App No 35373/97, 17 March 2003), ECHR, at paragraph 84. It cannot be seriously suggested that a member can enjoy such immunity even before he has validly assumed the office of a LegCo member, as it is only after the assumption of office that he could validly exercise his powers and functions as a LegCo member.

87. Thus, the word expressed by a LegCo member in purporting to take an oath (when he has not yet validly assumed office) cannot be properly regarded as falling within the meaning of “statements” in BL77.

88. Once understood that way, sections 3 and 4 of the LCPPO do not add anything further, as they must be read consistently with the constitutional provision of BL77. In fact, in my view, the plain words of sections 3 and 4 of the LCPPO[18] (as italicized above) make it even clearer that the immunity provided attaches only to words and speeches (spoken or written) in relation to debates in the LegCo meetings.

89. Moreover and in any event, as submitted by Mr Yu, section 73 also constitutes an alternative answer to Mr Dykes’ arguments based on the immunity provided under BL77 and sections 3 and 4 of the LCPPO.

90. By granting jurisdiction to the court to adjudicate proceedings brought under section 73, LegCo members must have regarded to have consented to subject themselves to the court’s jurisdiction in circumstances where someone who has been disqualified as LegCo member but continues to act as such. Thus, even if (which I disagree) the word “statements” used in BL77 and the phrases “speeches and debates” and “words” used respectively in sections 3 and 4 of the LCPPO were intended to cover the reading out of the LegCo Oath in the process of taking an oath, the court would still have jurisdiction and power to look into them in a section 73 proceedings to determine the question of whether someone has been disqualified as a member of the LegCo under section 21 of the ODO or otherwise.

92. Finally, Mr Pun argues that on a proper construction of section 21(a) of the ODO, even if a person has declined or neglected to take the LegCo Oath as prescribed and that he “shall” vacate the office as a member of the LegCo, the vacating of the office does not operate automatically as a matter of law as contended for by the SJ and the CE. This is so because the provision is phrased in active voice in that the person “shall vacate” the office, instead of passive voice such as that the person “shall be vacated from his office”. Mr Pun therefore submits that although the person must vacate the office, it can only take effect either by the person resigning under section 14(1) of the LCO[19] or, if he fails to do so, by the President exercising his power under BL73(1) or (7) to declare that person to be disqualified.

94. In light of the use of the word “shall”, Mr Pun accepts, as he must, that once the condition of “decline or neglect” under section 21 of the ODO is established, the legal effect intended in section 21 is that the person must vacate the office or be disqualified from entering on it, with the clear intended inevitable consequence that he cannot continue to act as a member of the LegCo. In the premises, I see no basis at all (let alone any reasonable basis) to construe section 21 to require any further intervening steps to be taken to achieve that inevitable effect and result.

95. Further, as pointed out by Mr Yu, a LegCo member who tenders a resignation under section 14(1) of the LCO is entitled to specify in the resignation notice the date upon which he intends the resignation to take effect. See: section 14(3)(b).[20] In other words, if Mr Pun’s above submissions are correct, it would be entirely up to the disqualified member to decide when he would effectively vacate the office by resigning. That cannot be consistent with the above objective meaning of section 21 of the ODO.

97. It is plain that BL79(1) provides for the situation where the President shall declare a LegCo member to be disqualified when the member is either physically or mentally unable to discharge his duties as a member. This is supported by the Chinese version of BL79(1), which states: “因嚴重疾病或其他情況無力履行職務”, in particular the words “無力履行職務”. The plain and ordinary meaning of these words refers to the circumstances where, although it is open to the member concerned to carry out the duties, he is unable to do so. This does not cover the circumstances where the member is mandated to vacate his office under section 21 of the ODO, and hence it is no longer open to the member to carry out the duties as a LegCo member.

98. BL73(7) similarly does not cover a section 21 circumstance as it is again plain that the a person who declines or neglects to take the LegCo Oath cannot be regarded as to be “in breach of the oath”.

99. The word “misbehaviour” (“行為不檢”) under BL73(3) also cannot be objectively intended to cover the conduct of intentionally refusing or failing to take the LegCo Oath. It is so as, given the context that such “misbehaviour” has to be “censured” for by two-thirds of the LegCo members before the President could declare the member to be disqualified:

100. In the premises, on a proper construction of section 21 of the ODO, a LegCo member who has already entered on the office but declined or neglected to take the LegCo Oath shall, by the operation of law, be regarded as having vacated his office. Similarly, the LegCo member will be as a matter of law disqualified from entering that office if he has not entered on it. This does not require any further steps to be taken by that person himself, the President or any other person.

101. Finally, it has been raised by Mr Leung and Ms Yau that the CE has no locus to bring either the judicial review or HCMP 2819/2016.

102. Mr Yu however submits that the CE clearly has a locus to bring these proceedings given his constitutional role and duty under BL48(2).

104. Thus, under BL48(2), the CE has a constitutional role and duty to implement the BL and other laws of the Hong Kong Special Administrative Region.

105. Given this constitutional role, I agree with Mr Yu that the CE has a proper locus to bring these proceedings to implement BL104 and the relevant provisions of the ODO and to ensure that they are complied with. In this respect, it must be noted that the action brought under HCMP 2819/2016 is not premised only on a section 73 cause of action.

107. For all the above reasons, I do not accept any of the grounds of opposition advanced by Mr Leung and Ms Yau.

108. Thus, as a matter of law under BL104 and section 21 of the ODO, they shall be regarded as having already vacated their office in declining to take the LegCo Oath in form and in substance on 12 October 2016.[21] Their respective office as a member of the LegCo has become vacant.

109. As mentioned above, the President’s only objection in these proceedings is that he should not be joined as the respondent in the judicial review application and as a defendant in HCMP 2819/2016.

112. I agree with Mr Yu that in making the President’s Decision, the President impliedly has decided that Mr Leung and Ms Yau did not decline or neglect to take the LegCo Oath on 12 October 2016 and thus shall not be regarded as having disqualified under section 21 of the ODO to continue to act as a LegCo member. This is so since there would be no practical and useful purpose to be served to allow them to re-take the oath in another occasion if the President has not already effectively come to the view under the President’s Decision that they have not been so disqualified. Whether or not they already declined or neglected to take the LegCo Oath on 12 October 2016 should not be dependent on how they would take the oath again on a subsequent occasion. If they declined or neglected to take the LegCo Oath on 12 October 2016, as a matter of law, they shall be regarded as having vacated their office or been disqualified from that. There is no question that they can do it again as a member of the LegCo.

113. In the premises, I am satisfied that the President’s Decision is amenable to judicial review, and the President has been properly joined as a respondent.

114. Given my above conclusion that in law Mr Leung and Ms Yau should be regarded as having already vacated their office as a member of the LegCo on 12 October 2016 in declining or neglecting to take the LegCo Oath, I agree with Mr Yu that the President had misdirected himself on the law in making the President’s Decision. On that basis, I would quash the President’s Decision.

115. In relation to HCMP 2819/2016, given the President’s Decision and its effect as explained above, I am similarly satisfied that it is reasonable and necessary for the CE and the SJ to join the President as the 3^rd defendant to ensure that he would be bound by the ruling in that case.

116. As the Interpretation was issued by the NPCSC on 7 November 2016 after the hearing of the present proceedings, the court subsequently directed the parties to provide supplemental written submissions, if they so wished, on the effect of the Interpretation relevant to the present cases or arguments already advanced by the parties. The parties provided their written supplemental submissions on 10 November 2016.

117. The CE and the SJ submit in their supplemental submissions that the Interpretation is binding on this court.

118. However, Mr Yu for the CE and the SJ emphasises in their supplemental written submissions that the Interpretation does not affect their original submissions made to this court on the proper purposive construction of BL104 and sections 16, 19 and 21 of the ODO insofar as the time and manner of oath-taking and the consequences of declining to take the oath are concerned (which have been accepted by this court above in paragraphs 24 - 36 and 92 - 100 above).

119. In this respect, it must be noted, as this court has repeatedly emphasised above, Mr Leung and Ms Yau have not advanced any arguments by way of submissions or evidence seeking to rebut the applicants’ submissions on the proper meaning and effects of BL104 and the provisions in the ODO, construed independently of the Interpretation.[22] They have also not advanced any submissions or evidence to say that they did not decline or neglect to take the LegCo Oath falling within the meaning of section 21. Their principal grounds of opposition raised in these cases based on the non-intervention principle and the immunity also have nothing to do with, and thus would not be affected in any material way by, the Interpretation.

120. Thus, I agree with Mr Yu’s submissions that the outcome of this case as regards Mr Leung and Ms Yau is the same with or without referring to the terms of the Interpretation.

121. Insofar as Mr Leung and Ms Yau are concerned, their supplemental submissions also say that the Interpretation does not affect and has no impact on their arguments raised under the non-intervention and the immunity grounds. This is correct. I have for the above reasons rejected these grounds without reference to or relying on the Interpretation.

122. Mr Leung and Ms Yau in their supplemental submissions further raise two main observations concerning the Interpretation itself.

123. First, Mr Pun for Mr Leung submits that paragraph (4) of the Interpretation supports his submissions that the person administering the oath is the final arbiter to determine the taken oath’s validity and compliance with BL104 and the ODO, hence also in support of his submissions under the non-intervention principle. I have rejected this submission above in paragraph 70.

124. Second, Mr Dykes for Ms Yau submits that, construed in the eyes of common law, the Interpretation goes further than merely as an interpretation of the meaning of BL104 and thus amounts to effectively a legislative act to amend BL104. As such, it is not made in compliance with BL158 and thus not binding on this court. In any event, given that it is effectively an amendment, it also has no retrospective effect under common law.

125. Given my acceptance of the CE and the SJ’s above submissions that the court would reach the same above conclusion for reasons I have explained above with or without referring to the terms of the Interpretation, this submission is irrelevant to the present proceedings and it is unnecessary for me to determine it. I however think that it may be open to arguments that whether the Interpretation falls within the proper meaning and scope of “interpretation” as intended under BL158 is a final matter for the NPCSC, given that the NPCSC has the ultimate power to interpret the BL. However, since this issue has not been argued substantively before me, I would refrain from saying anything further.

126. Finally, the President accepts that the Interpretation is binding on this court but also submits that it does not affect their submissions that the President should not be joined in these proceedings. For the reasons stated above, I have already rejected those submissions.

127. The President further asks this court to clarify the date from which the vacation or disqualification took effect if the court shall declare that Mr Leung or Ms Yau have vacated their office or disqualified from taking office.

128. In my view, given the plain meaning of section 21 of the ODO, the vacation took effect from the time when Mr Leung and Ms Yau declined to take the LegCo Oath when requested to do so. That would be 12 October 2016.

129. This is also consistent with BL104 and the Interpretation. Under BL104 and the Interpretation, a person can only “assume the office” of a LegCo member after he has validly taken the LegCo Oath, but would be disqualified from “assuming” the office after he has intentionally declined to take the LegCo Oath. Insofar as the present cases are concerned, Mr Leung and Ms Yau could only seek to “assume office” on 12 October 2016 when they purported to take the LegCo Oath. As they declined to take the LegCo Oath on that day, they have thus been disqualified from assuming the office since that day.

130. For all the above reasons, the CE and the SJ succeed in the judicial review and HCMP 2819/2019. I would grant the following reliefs:[23]

131. Finally, I make an order nisi that costs of these applications be to the CE and the SJ, to be taxed if not agreed, with certificate for three counsel. Given the limited scope of the opposition raised by the President in these proceedings, the President shall bear one-fifth of the applicants’ costs, while Mr Leung and Ms Yau shall bear four-fifth of the costs.

132. Lastly, I must thank counsel for their helpful assistance in these matters.

[1] The applicants also sought on the evening of 18 October 2016 urgent interim injunctions to restrain the President from allowing Mr Leung and Ms Yau to proceed to re-take the oath, and to also restrain them from proceeding to do so. I refused to grant the interim injunctions after hearing the parties for the reasons now recorded in the written decision dated 18 October 2016.

[2] It has been held in Leung Kwok Hung v Clerk to the Legislative Council (HCAL 112/2004, 6 October 2004, Hartmann J) at paragraph 22 that the phrase “in accordance with the law” under BL104 refers to the legal requirements provided in the relevant provisions of the ODO.

[3] See: T v Commissioner of Police (2014) 17 HKCFAR 593, at paragraphs 4 and 48; Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45 at paragraphs 75 - 77; Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1 at 13I-J.

[4] As submitted by the CE and the SJ, similar constitutional requirement to swear an oath of allegiance to the sovereign and/or the constitution exists in other jurisdictions like the, Australia, Canada and New Zealand. In the UK, members of both Houses of Parliament are required by section 3 of the Parliamentary Oaths Act 1866 to swear an oath of allegiance to the Queen.

[5] See: The New Shorter Oxford Dictionary.

[6] See: Jowitt’s Dictionary of English Law (4^th Edn).

[7] See: the circular paper issued by the Clerk to the LegCo on 20 September 2016; circular paper issued by the Clerk dated 7 October 2016 reminding members to take the oath in the form and manner as prescribed by ODO; circular paper dated 11 October 2016 issued by the Clerk once again reminding members to take the LegCo Oath in the form and manner prescribed by the ODO; on 12 October 2016, they were requested by the Clerk to walk up to the table at the centre of the LegCo Chamber to take the Legislative Council Oath in accordance with the pre-determined order (see Affirmation of Wong Hwa Yih filed in HCMP 2819/2016 at paragraph 7); while Mr Leung and Ms Yau were at the centre table, the Clerk orally requested and reminded them to take the Legislative Council Oath in accordance with the statutory form of words.

[8] See: paragraphs 11 - 12 of the Affirmation of Wong Hwa Yih in HCMP 2819/2016, paragraphs 10 - 11 of the Affirmation of Wong Hwa Yih in HCAL 185/2016 and paragraph 20 of the 2^nd Affirmation of Rosanna Law in HCMP 2819/2016.

[9] See: paragraph 13 of the Affirmation of Wong Hwa Yih in HCMP 2819/2016 and paragraph 12 of the Affirmation of Wong Hwa Yih in HCAL 185/2016

[10] See: paragraphs 14 - 19 of Affirmation of Rosanna Law.

[11] See: a public statement (“嚴正聲明”) jointly published by a group of scholars and workers in the field of history, culture and education in various newspapers on 18 October 2016, exhibited as “WHY-7” to the Affirmation of Wong Hwa Yih in HCMP 2819/2016.

[12] See: paragraphs 8 - 10 of the Affirmation of Wong Hwa Yih in HCMP 2819/2016; paragraphs 7 - 9 of the Affirmation of Wong Hwa Yih in HCAL 185/2016.

[13] See also AG v Bradlaugh, supra, at 701 - 702, 719.

[14] See also Sir Anthony Mason’s extra-judicial views in “The place of comparative law in developing the jurisprudence on the rule of law and human rights in Hong Kong” (2007) HKLJ299 at 304 - 305, where it is expressed that, given the obvious differences in the meaning and constitutional model of the doctrine of separation of powers between UK and other common law jurisdictions with a written constitution, such as Australia, Canada and the Untied States, “judicial decisions on the separation of powers need to be treated with great care before they can be imported from one jurisdiction to another. This proposition has significance for Hong Kong… It would not follow that the Basic Law, when construed in the light of its context and the preservation of the English common law by Article 8 of the Basic Law, necessarily mandates a separation of powers that confirms either to the United States or Australian model.”

[15] Subject to BL158 where the power of interpretation of the BL is vested in the NPCSC, where the Hong Kong courts have been authorised by the NPCSC to interpret the BL when adjudicating cases.

[16] Cf: AG v Bradlaugh, supra, is in relation to a statutory action brought under the Parliamentary Oath Act 1866 by the Attorney General against Mr Bradlaugh as a member of parliament for a statutory penalty for an offence in voting and setting in any debate of the Parliament “without having made and subscribed” to the parliamentary oath in the form as required under the Parliamentary Oath Act 1868. Although the 1866 Act only gives the AG the right to bring an action against such a member to recover the penalty, in determining whether Mr Bradlaugh was liable for the penalty, and notwithstanding the non-intervention principle as considered in the earlier related case of Gossett,the court had to and did determine the underlying necessary question as to whether Mr Bradlaugh as an antitheist could validly take and subscribe to the oath.

[17] There is no question that Mr Leung and Ms Yau did purport to act or claim to be entitled to continue to act as a LegCo member. See: Affirmation of Law Shuk Pui Rosanna filed under HCMP 2819/2016, at paragraphs 29 - 31. Further, the fact that they sought to proceed to take the oath again after the President’s Decision must also amount to their acting or claiming to be entitled to act as a LegCo member.

[18] The Chinese version of section 4 of LCPPO is even clearer in this meaning. It states “不得因任何議員曾在立法會或任何委員會席前發表言論，或在提交立法會或委員會的報告書中發表的言論，或因他曾以呈請書、條例草案、決議、動議或其他方式提出的事項而對他提起民事或刑事法律程序。”.

[19] Section 14(1) of the LCO provides “A Member may, at any time, resign from office as a Member by giving written notice of resignation to the Clerk to the Legislative Council.”

[20] Section 14(3)(b) of the LCO provides “ A notice of resignation takes effect – (a) …; or (b) if a later date is specified in the notice, on that later date.”

[21] In light of sections 4 and 13(1) of the LCO, the CE and the SJ in these proceedings proceed primarily on the basis that Mr Leung and Ms Yau, for the purpose of section 21 of the ODO, had entered on their respective office of a member of the LegCo by the time when they purported to take the LegCo Oath on 12 October 2016. No one has submitted or argued otherwise in these proceedings. The court would therefore also proceed on that basis. However, to avoid any doubts, it must be noted that, to be consistent with BL104, the meaning of “entered on the office” in section 21 of the ODO, and the meaning of “having accepted office” under section 13(1) of the LCO should not be treated as the same meaning of “assuming office” under BL104.

[22] Save as to Mr Pun’s contention that section 21of the ODO does not operate automatically as a matter of law to vacate a member’s office after the member has declined or neglected to take the LegCo Oath. A contention I have rejected at paragraphs 92 - 100 above.

[23] For completeness, I would also grant leave to the CE and the SJ (a) to amend respectively the Form 86 and the Originating Summons in the form of the draft attached to the respective summons issued under HCMP 2819/2016 and HCAL 185/2016 both dated 24 October 2016; and (b) to file and rely on the 2^nd Affirmation of Law Shuk Pui Rosanna affirmed on 27 October 2016 in both actions. All these have been considered at the hearing on an debene esse basis. The proposed amendments and the further evidence are clearly relevant to the present proceedings and do not cause any real prejudice to the respondents. No real objections have been taken by the respondents. The costs of all these summonses shall be in the cause.