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Hong Kong high-speed rail

Hong Kong government damaged ‘one country, two systems’ with ‘monster’ co-location plan at express rail terminus, court told

  • Judicial review applicant Hendrick Lui argues that arrangement allowing mainland laws to be enforced in West Kowloon terminus is unconstitutional
  • His lawyer says special administrative region has been created within city where there is only ‘one country, one system’
PUBLISHED : Tuesday, 30 October, 2018, 3:49pm
UPDATED : Tuesday, 30 October, 2018, 10:15pm

The Hong Kong government caused the heaviest damage to “one country, two systems” with a “monster” plan allowing mainland laws to be applied in the city's new high-speed rail terminus, a judicial review applicant told a local court on Tuesday.

Such an arrangement must be unconstitutional, according to Martin Lee Chu-ming SC, for Chinese University masters student Hendrick Lui Chi-hang, because it created a smaller special administrative region within Hong Kong where there was only “one country, one system”.

“They have picked [an arrangement] which caused the heaviest damage to ‘one country, two systems,’” Lee said. “If we allow this decision to bring about this effect to our system, to bring ‘one country, one system’ to this small SAR, there will be a second, a third and a fourth, and it will be the end of the rule of law as we know it.”

Under the principle of one country, two systems, Hong Kong is guaranteed a high degree of autonomy. The Basic Law is the city’s mini-constitution.

Trio’s challenge to controversial express rail link checkpoint back on track

Lui is among four applicants challenging the constitutionality of the so-called co-location arrangement instituted on September 23, the same day as the HK$84.4 billion (US$10.7 billion) Guangzhou-Shenzhen-H­ong Kong Express Rail Link commenced service.

Under the plan, the Hong Kong government leased a section of the link’s West Kowloon terminus to mainland Chinese immigration, customs and quarantine authorities to allow mainland officers to enforce national laws in those areas.

The arrangement was implemented by the Hong Kong legislature’s enactment of a local ordinance in June, following approval by the National People’s Congress Standing Committee on December 27 last year.

But the legal basis of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-Location) Ordinance has been hotly debated among officials, legal experts and legislators.

The government has argued the ordinance was “clearly consistent with the Basic Law” and that it did not infringe on any rights stipulated in the mini-constitution. It also said the arrangement was necessary – because of its convenience – and proportionate to its aims.

But Lee said on Tuesday that he wondered if he was dreaming like Alice in Wonderland when he read the argument, calling the arrangement a “monster”.

“The high-speed rail is a good thing for Hong Kong, we are not against it,” Lee explained to Mr Justice Anderson Chow Ka-ming. “In fact co-location may be a good thing as well – we are only coming to your lordship because we are opposing the way this co-location is done.”

Everything you need to know about Hong Kong’s joint rail checkpoint arrangement

The lawyer complained that he was still unaware of the real legal basis for Hong Kong to surrender its jurisdiction, save for one ordinance, since the government was no longer defending its position by relying on any particular articles in the Basic Law.

“Where can we find any provision that could even allow the possibility of creating a small special administrative region within the Hong Kong special administrative region?” he continued. “If my learned friend [for the government] can point out any article, I can sit down. But my offer has not been accepted. They can’t.”

Lee argued: “The power must come within the framework of the Basic Law.”

The government’s stance has also prompted the judge to question its position on the legal effect and nature of the NPCSC decision.

Hectar Pun Hei SC, for ousted lawmakers Sixtus Baggio Leung Chung-hang and “Long Hair” Leung Kwok-hung, said Hong Kong was not bound by the NPCSC decision.

“We look at it, we respect it, but we should not be dictated by a decision that does not form a part of Hong Kong laws,” the lawyer added.

We should not be dictated by a decision that does not form a part of Hong Kong laws
Hectar Pun Hei SC

Pun also argued it was impermissible for the legislature to enact an ordinance to make Hong Kong laws no longer applicable in favour of the introduction of mainland laws as that would be inconsistent with the Basic Law.

Philip Dykes SC, representing “king of judicial reviews” Kwok Cheuk-kin, further pointed out that both Hong Kong and Beijing were subject to the mini-constitution.

“We are not a sovereign state so we are constrained by the Basic Law, as are the mainland authorities because they only operate through the Basic Law,” Dykes explained.

Lee questioned how hard the government had pushed for the interests of Hong Kong during negotiations. He said officials were prepared for the case to go to the Court of Final Appeal, expecting that the NPCSC would maintain the same view if it were asked to carry out an interpretation.

“Why bow in advance?” Lee asked. “I don’t think the NPCSC has received the correct and proper legal advice from our administration.

“I would really appreciate it if your lordship could see a way out,” he said. “The respondents are asking your lordship to be practical, be pragmatic, be obedient, be subservient.”

Counsels for the government and Legislative Council president will respond on Wednesday.