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Hong Kong courts

Mainland Chinese officers can operate in Hong Kong rail station, court rules, but it doesn’t mean that can be replicated elsewhere

  • Ruling stopped short of answering key question of whether such decisions in general made by China’s top legislative body were binding on Hong Kong
PUBLISHED : Thursday, 13 December, 2018, 11:08am
UPDATED : Thursday, 13 December, 2018, 11:43pm

A Hong Kong court on Thursday ruled that allowing mainland Chinese officers to apply national laws at the city’s new cross-border rail terminus was consistent with its mini-constitution.

But while the High Court’s judicial review backed the approval of the so-called co-location arrangement by the National People’s Congress Standing Committee (NPCSC) last December, it stopped short of answering the key question of whether such decisions in general made by China’s top legislative body were binding on Hong Kong.

Mr Justice Anderson Chow Ka-ming also made it clear the unprecedented arrangement did not mean it could be applied in areas other than the mainland port of the West Kowloon terminus, which opened on September 23, the same day that the HK$84.4 billion (US$10.8 billion) rail link commenced service.

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His ruling was a blow to critics who had called the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance unconstitutional and damaging to the “one country, two systems” framework under which Beijing governs the city.

But three of the four judicial review applicants remained defiant, announcing their intention to appeal immediately outside the High Court.

The applicants had argued that the arrangement was unconstitutional because it breached 13 articles of the city’s mini-constitution, the Basic Law, in particular a provision that no national laws should be enforced in Hong Kong apart from those listed in annex III, which deal with matters such as nationality and diplomatic immunity.

They had also argued that the NPCSC’s decision was not binding on Hong Kong and quoted mainland law expert Professor Fu Hualing as saying the question of the arrangement’s legality should have been handled by the top legislative body issuing an interpretation of the Basic Law, rather than a decision.

While the judge recognised their case was “reasonably arguable” and granted them leave to hear their applications, he eventually dismissed them in favour of the government’s “forceful argument” and declared the ordinance “consistent with the Basic Law”.

Chow said what mattered was whether the NPCSC had the legal power to rule on co-location by issuing a decision, which in this case was “a carefully considered” piece of “post-enactment extrinsic materials” of “high persuasive value” to aid in the understanding of the Basic Law.

“I consider the NPCSC has such legal power under PRC [People’s Republic of China] laws,” he wrote in a 67-page judgment.

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“Upon a fair reading of the Basic Law establishing a broad framework for the exercise of a high degree of autonomy by Hong Kong, it is open to the legislature of Hong Kong to enact the ordinance.”

Chow further explained that the question of whether the ordinance was consistent with the Basic Law should not be approached in “a literal or mechanistic manner” – rather, it should be read in the context and purpose of the Basic Law, which gave effect to the “two systems” part of the governing framework.

“The Basic Law should be treated as being capable of growth and development over time to meet new social, economic and political realities, and construed and applied in a manner which is responsive to contemporaneous needs and circumstances over its entire life,” Chow wrote.

“To read the Basic Law as having the effect of prohibiting the co-location arrangement, which has been designed to advance the overall best interests of Hong Kong, would seem to me to involve a failure to recognise the Basic Law as a ‘living instrument’.”

Chow also adopted the government submission that the establishment of the port was itself “a manifestation of the exercise of a high degree of autonomy” and considered the fact that an arrangement that was beneficial to the overall interests of Hong Kong was “a relevant consideration” to the question of legality.

“Taking into account the NPCSC decision, I consider that any doubt or ambiguity as regards the consistency of the ordinance with the Basic Law is cleared,” the judge concluded.

But Chow noted that his judgment did not mean the arrangement could necessarily be replicated elsewhere in the city, as the port in question had been justified by and limited to the particular circumstances and imperatives arising from the unprecedented project.

As for the binding effect of such NPSC decisions in general, if any, he said: “It would not be appropriate for me, sitting at first instance, to determine questions concerning the status and legal effect of the NPCSC decision under Hong Kong laws which may have far reaching implications but are not strictly necessary for my decision.”

Former lawmaker “Long Hair” Leung Kwok-hung vowed to appeal, complaining that Hong Kong courts and the rule of law were now “like water” as they could be poured into any “vessel” the NPC liked.

“I’m not afraid of losing, I’m only demanding justice,” he said outside court.

Two other applicants, Kwok Cheuk-kin and Hendrick Lui Chi-hang, also indicated they would appeal, while the fourth applicant, former lawmaker Sixtus Baggio Leung Chung-hang, said he was studying the judgment.