Legislative Council of Hong Kong

Decision on oath-taking appeal to come early next week, as judge expresses ‘unease’ over lack of focus on Beijing’s Basic Law interpretation

High Court Chief Judge Andrew Cheung Kui-nung says this would save them need to even look at relevant local legislation

PUBLISHED : Friday, 25 November, 2016, 12:49pm
UPDATED : Wednesday, 30 November, 2016, 10:57am

Two localist lawmakers disqualified over the oath-taking saga will learn next week if their court appeal against the decision to bar them from office has been successful or not.

The appeal, lodged by former lawmakers-elect Yau Wai-ching and Sixtus Baggio Leung Chun-hang, ended yesterday after a two-day hearing, with three presiding justices pledging to reach a decision by Tuesday or Wednesday.

The pair were disqualified by the Court of First Instance two weeks ago after the lower court ruled that the pair’s antics during their swearing-in ceremony on October 12 amounted to neglecting to take their oaths.

Their use of terms deemed ­derogatory to China also raised Beijing’s eyebrows and prompted the National People’s Congress Standing Committee to interpret the Basic Law’s Article 104 ahead of the lower court’s ruling.

Chief Judge of the High Court Mr Justice Judge Andrew Cheung Kui-nung said, given the interpretation, he felt “uneasy” that the lawyers were still using the city’s common law approach to reach the same conclusions.

The interpretation – which is essentially the same case ­advanced by the government’s lawyers – requires those who take an oath to be sincere and accurate, and, if failing to do so, would not be given a second chance to retake the oath.

Cheung made the comment when Benjamin Yu SC, for the government, set out his grounds based on local laws, before proceeding to the interpretation.

“We don’t even need to look at Section 21 [of the Oaths and Declarations Ordinance],” he added, referring to the local legislation in question.

Mr Justice Jeremy Poon Siu-chor asked why Yu did not start with the interpretation. “After all, you stand for the chief executive,” he said.

But fellow justice of appeal Mr Justice Johnson Lam Man-hon said: “I can understand the reluctance. It’s just like asking a footballer to use his hand to score.”

Yu said: “If I were a PRC lawyer, the argument would have been shorter.”

Yesterday’s hearing was the first time for the government to ­reveal its position on the interpretation, which some had said amounted to an amendment to the Basic Law.

Yu said there was no basis to suggest so, adding that local courts would be bound by whatever legal explanations Beijing conferred upon the city.

The judges said they anticipated parties to go to the Court of Final Appeal following their ­decision, and proposed to hear whether permission should be given to them a day after their judgment is handed down.