Legislative Council of Hong Kong

High Court judge in oath-taking case no stranger to thorny political issues

Justice Thomas Au Hing-cheung has ruled on topics ranging from Occupy Central to TV licensing

PUBLISHED : Thursday, 24 November, 2016, 6:47pm
UPDATED : Wednesday, 30 November, 2016, 10:57am

In a society where the public has more confidence in the courts than in the administration, the judge presiding over the oath-taking case – now under appeal – has, in the few years since he was chosen to focus on judicial reviews, already been brought in to rule on a range of thorny political issues from Occupy Central to political reform.

Thomas Au Hing-cheung is the judge on the Court of First Instance who specialises in constitutional and administrative law proceedings. A high-flyer in the judiciary, he was appointed as district judge in 2007 and took only two years to be promoted to the High Court. He gave up his Civic Party membership in 2006 before accepting the appointment to be a full-time judge.

A lawyer who declined to be named described Mr Justice Au as a judge “with a great sense of humour when not commenting on the law”, but who adopted a “technical” approach to his cases, as opposed to the more creative style of one of his predecessors, Michael Hartmann.

In the oath-taking case, some lawyers and scholars had hoped Mr Justice Au would make a speedy delivery of his first judgment to avoid being pre-empted by Beijing’s interpretation of the Basic Law.

But he handed down his ruling only a week after the interpretation, which came with such specific rules on oaths that some lawyers argued it could, when applied, effectively disqualify localists Sixtus Baggio Leung Chun-hang and Yau Wai-ching.

The judge insisted he had been unaffected by Beijing, writing in the judgment that he had arrived at the conclusion using a common law approach to local legislation, and that his conclusion would have been the same “with or without” the interpretation.

Mr Justice Au has been asked to rule on several highly contentious matters in the past few years, starting with Occupy Central.

In November 2014, the judge authorised police to help two drivers’ groups and the owner of a commercial property, who had already obtained injunctions from another judge to clear the sit-in sites, to arrest protesters flouting those orders.

Mr Justice Au explained that he had allowed police to step in on the private lawsuit because the rule of law and due administration of justice were at risk of being “seriously challenged and undermined”, as some protesters had been flouting the court orders.

“Under the rule of law, even if the defendants are of the view that a court order is wrongly granted, instead of simply disobeying it, they should first comply with it but seek to challenge and argue against that order in court,” he wrote.

Hong Kong judge blasts localist radicals for oath-taking that bordered on contempt

Last year in April, Mr Justice Au ruled against the government on a review about free-television licencing – a decision described as one that “made Hongkongers in general happy” by the applicant, maverick businessman Ricky Wong Wai-kay.

The Executive Council’s denial of a free-to-air licence to Wong’s Hong Kong Television Network had sparked street protests by his supporters outside the government headquarters for days.

Mr Justice Au wrote that it was “unlawful” of Chief Executive Leung Chun-ying and his cabinet to reject Wong because they had failed to follow a 1998 pro-competition policy stipulating there should be no limit to the number of such licences.

In the oath-taking case, Justice Au, in his first judgment, asserted that the principle of non-intervention – that the court should not interfere in the legislature – was “subject to constitutional requirements” of the Basic Law, and therefore the court was in a position to adjudicate.

However in three previous cases, Mr Justice Au had avoided intervening in the legislature over different political matters.

Court ruling on oaths a welcome and valid clarification of the law

In June 2015, the judge rejected an application by an Occupy Central student leader for a review to overturn the Hong Kong government’s decision to adopt a Beijing-decreed framework for political reform.

In turning down Yvonne Leung Lai-kwok, Justice Au ruled that local courts had no jurisdiction over Beijing’s decision, and that it was still not known whether the proposal would be passed by the Hong Kong legislature. He wrote that the court should not be “interfering in the legislative process and entertaining a pre-enactment challenge”.

In August the same year, the judge cited “separation of powers” in a filibustering case. He refused to review the decisions made by Legco finance committee chairman Ng Leung-sing to abruptly end a pan-democratic filibustering attempt over funding for a contentious new-towns plan.

Another case in which he refused to intervene in the legislature was the judicial review sought by student activist Joshua Wong Chi-fung, who wanted the court to lower the minimum age of Legco candidates from 21 to 18, his age, so he could run. But Mr Justice Au ruled that the matter was a “political” one.