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Hong Kong high-speed rail

In rare move, Hong Kong justice department seeks mainland legal advice in joint checkpoint fight

If successful, application to call expert witness could boost NPCSC’s power to hand down binding decisions on city and its courts

PUBLISHED : Monday, 09 July, 2018, 11:14am
UPDATED : Monday, 09 July, 2018, 11:27pm

A high-profile legal dispute arising from the Hong Kong government’s plan to make national laws applicable in one of the city’s rail terminuses is likely to become a battleground for mainland experts with diverging opinions.

A preliminary High Court hearing on Monday confirmed what the Post earlier reported: that Hong Kong’s justice department is seeking to call on a mainland legal expert to provide expertise in support of its case.

Five judicial reviews have been filed against what is known as the “co-location” arrangement, in which mainland officers will be allowed to enforce mainland laws in a section of the West Kowloon rail terminus for an express link connecting Hong Kong and mainland China.

The plan was partly made possible by a decision by Beijing’s top legislative body, the National People’s Congress Standing Committee, handed down in December last year, which said the arrangement did not violate the city’s mini-constitution, the Basic Law.

But critics said the plan to put in force mainland laws in Hong Kong amounted to a contravention of the Basic Law, with at least one applicant behind the judicial challenges, activist Hendrick Lui Chi-hang, arguing the decision had no “legal status” in Hong Kong.

Mr Justice Anderson Chow Ka-ming, summarising the Department of Justice’s request to summon an expert witness, said the expertise would be related to the “effect” and “nature” of the NPCSC decision.

Lawyers for at least two of the five applicants immediately expressed their inclination to call their own mainland experts for rebuttal.

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

Benjamin Yu SC, who represents the department, did not reveal which mainland law expert the department would seek help from. The department also declined to comment, citing the ongoing legal proceeding.

Chow will decide within the next two days when the case will be heard, with some possible dates set out in early September or late October. This means that the case is unlikely to be heard before the opening of the high-speed rail link between Guangzhou, Shenzhen and Hong Kong, which is scheduled to start operation in September.

If the application is approved and the scholar’s expert evidence is eventually adopted by the court, it could provide a boost to the NPCSC’s power to hand down a free-standing decision binding on the city and its courts, even when the matter does not involve an interpretation of the Basic Law.

On Monday, Yu also urged the court to set aside four of the cases and let only the one filed by Lui, represented by veteran senior counsel Martin Lee Chu-ming, proceed, saying this would save time and public funding. Some of the applicants are seeking legal aid.

The other four applicants are former civil servant Kwok Cheuk-kin, NeoDemocrats member Jeff Ku Chun-hin and ousted lawmakers “Long Hair” Leung Kwok-hung and Baggio Sixtus Leung Chung-hang.

“I certainly don’t think it would be fair to the people of Hong Kong that Martin Lee and his team are representing the whole of Hong Kong,” Lee said in response.

After the hearing on Monday, Baggio Leung and Kwok will be represented by the legal teams for the other three applicants to expedite the process.

Following the NPCSC decision in December, the corresponding local legislation was passed in mid-June at the city’s Legislative Council in the wake of protests and delays.

The Standing Committee has interpreted the Basic Law five times since Hong Kong returned to Chinese rule in July 1997, in decisions that were binding for the city’s courts at all levels.

It remains unclear however whether the NPCSC’s approval of the joint checkpoint plan is directly binding on Hong Kong, since it does not involve an interpretation the Basic Law. Throughout the legislative process, the government said only that the decision was “a law under the mainland legal system” and was silent on the effect on Hong Kong.

Adopting legal opinion on mainland law is not completely alien in Hong Kong’s constitutional cases. In the 1999 Chong Fong-yuen right of abode case, the Court of Final Appeal heard written opinions from three mainland law experts for both parties: key Basic Law drafter Lian Xisheng, Basic Law Committee member Albert Chen Hung-yee and former member Wu Jianlian.

Maria Tam Wai-chu, the newly appointed vice-chairwoman to the Basic Law Committee, said that although the court could decide whether to adopt a mainland law expert’s evidence, former committee chairman Li Fei had already stated that the Standing Committee’s decision had the “highest authority”. The Basic Law Committee advises the central government and the NPCSC on matters relating to the mini-constitution.

“Any NPCSC decision is legally binding on Hong Kong,” Tam said, adding that all that remained was for the expert to confirm this. “Any person studying the Chinese constitution would know. Just as Li Fei already said – this is the law.”

Ronny Tong Ka-wah, an adviser to the city’s leader, noted that despite the NPCSC being the country’s top legislative body, “a Hong Kong judge could still decide what effect [the decision] has on Hong Kong”.

However, he echoed Tam’s statement that NPCSC decisions were binding and that he did not see the need to summon an expert witness.