Hong Kong courts

Judge to rule next week on injunction bid against checkpoint at station for Hong Kong’s new cross-border express rail link

Sixtus Baggio Leung claims move is last chance at damage control, saying city’s reputation could be badly damaged if plan for West Kowloon terminus is ruled unconstitutional

PUBLISHED : Friday, 10 August, 2018, 8:34pm
UPDATED : Friday, 10 August, 2018, 11:42pm

A High Court judge will rule on Tuesday on applications for an injunction to halt a controversial joint-checkpoint plan for the new cross-border high-speed rail link, ahead of its expected opening next month.

Sixtus Baggio Leung Chung-hang, an ousted pro-independence lawmaker, on Friday argued an interim injunction is the last chance for “damage control” in case the court later declares the plan unconstitutional after hearing his judicial review application in October.

His concern was picked up by Mr Justice Anderson Chow Ka-ming, who noted that some travellers may be subject to “losses or penal consequences” if he dismisses the present application for the rail to commence service.

“Could it not be argued that these losses are irreversible?” he asked the government.

Benjamin Yu SC replied there would be no risk to those who do not buy a ticket, challenging a ban that could see the government, rail operator the MTR Corporation, and franchised bus companies forego HK$372.6 million (US$47.8 million) in monthly revenue.

The interim ban application targets the so-called co-location plan at the new Guangzhou-Shenzhen-Hong Kong Express rail terminus in the city’s West Kowloon area, not the HK$84.4 billion (US$10.7 billion) link.

Under the plan, the Hong Kong government will lease a section of the terminus to mainland Chinese immigration, customs and quarantine authorities – as opposed to the traditional arrangement where people crossing the border would use checkpoints on mainland soil.

Passengers on high-speed rail link to go through five-step ticket and security process

Mainland laws will also be applied in that part of the West Kowloon terminus.

Leung, who appeared without a lawyer because he was denied legal aid, said the plan contravened 10 articles of the Basic Law, the city’s mini-constitution, and affected the constitutional rights of all Hongkongers, regardless of whether they will take the train.

He argued that if the court granted an injunction in a decision that turned out to be wrong in the case his subsequent judicial review application is thrown out, losses would be confined to a fixed period.

But, if the court decides not to grant the injunction and later declares the plan unconstitutional, Leung said Hong Kong’s overall image and reputation as a transport hub would be tarnished as tourists holding prepaid tickets would find themselves with no train to board.

“No one can compensate such a loss,” he said. “This is a consequence for all Hongkongers to bear.”

Leung said the government’s claim of having no back up plan was inconceivable, given that former transport chief Eva Cheng Yu-wah had said in 2008 that there would be an alternative solution.

But Yu countered: “If the court were to order a stay it will hold up the operation of the express rail, there is no doubt about it.”

Yu said exceptional circumstances would be needed for the court to grant an interim injunction before granting leave to apply for judicial review, but the applicants had only presented “weak” arguments to support their case.

He also argued any damage to the city’s reputation would be the result of the judicial review’s final outcome, not the decision on the interim ban.

On the other hand, the government, MTR Corp, and franchised bus companies would be foregoing up to HK$372.6 million in monthly revenue while the latter two would be shouldering HK$179.9 million (US$23 million) monthly costs if the injunction is granted, according to its written submissions to the court.

Yu said co-location was “a clear manifestation of one country, two systems” as it upholds Hong Kong’s high degree of autonomy by requiring all travellers to go through customs and immigration when passing the border.

“There was no express prohibition in the Basic Law to say you can’t have co-location,” he added.

Leung, and Kwok Cheuk-kin who also appeared on Friday, are among five people seeking judicial reviews over the co-location arrangement after the Legislative Council passed the bitterly contested bill on June 14. Their judicial review application will be heard on October 30.