Hong Kong courts

Common law required lawmakers to swear oath in solemn manner government lawyers say, as they call ‘Long Hair’ Leung Kwok-hung ban justified

  • Lawmaker is challenging lower court decision that his disqualification began the day he was improperly sworn in
PUBLISHED : Thursday, 29 November, 2018, 8:06pm
UPDATED : Thursday, 29 November, 2018, 10:32pm

The disqualification of veteran Hong Kong lawmaker “Long Hair” Leung Kwok-hung was entirely justified, government counsel told a court on Thursday.

Benjamin Yu SC, for the chief executive and secretary for justice, said the common law required an oath-taker to swear solemnly, and there was no basis to suggest Beijing had amended the city’s mini-constitution when it issued a clarification in 2016.

“Even if an interpretation does involve supplementation, it simply is not open, as a matter of jurisdiction, to my learned friend to challenge the interpretation,” Yu said, with reference to the ruling that required oath-takers to swear sincerely, solemnly and accurately.

Leung’s counsel, Martin Lee Chu-ming SC, countered that the effect of the interpretation was tantamount to legislation, by amending the Oaths and Declarations Ordinance without going through the Legislative Council.

Such an amendment, he argued, contravened Beijing’s established policies regarding Hong Kong.

“The high degree of autonomy given to Hong Kong, in terms of legislation, is breached,” Lee continued. “The disqualification must be set aside.”

His client is appealing against a lower court’s decision last year to declare that he had been disqualified as a lawmaker since the day he took an invalid oath during the swearing-in ceremony on October 12, 2016.

Leung was a lawmaker for 13 years until he and five other pro-democrats – Sixtus Baggio Leung Chung-hang, Yau Wai-ching, Lau Siu-lai, Nathan Law Kwun-chung and Edward Yiu Chung-yim – were unseated after the previous administration, led by then chief executive Leung Chun-ying, challenged their oaths in October and December 2016.

Cut out wasting public funds, ‘Long Hair’

Sixtus Leung and Yau failed in their appeals; while Lau, Law and Yiu later dropped their bids.

Yu said the facts of the present case were virtually identical to that of Sixtus Leung and Yau, except for the specific way in which the oaths were taken.

“This court is bound by the decision in [the case of] Leung, Yau,” he said. “Unless the court is satisfied that it was wrong.”

Yu said the lower court’s decision was “entirely reasonable and well supported by evidence”.

He argued that one cannot use the freedom of expression to water down the constitutional requirement of taking proper oaths.

He also said it was not necessary to spell out the requirements of solemnity for the enforcer or the public, just as one would understand the meaning of “dishonest”, and that it was not difficult for anyone to steer clear the area of risk.

“What is so difficult about it?” Yu asked. “Quite plainly the judge’s finding was entirely justified.”

Court of Appeal vice-president Mr Justice Johnson Lam Man-hon and justices Jeremy Poon Shiu-chor and Aarif Barma have reserved their judgment.