CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. YAU WAI CHING AND OTHERS

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. YAU WAI CHING AND OTHERS

The court refused the interim injunction because, on the balance of convenience and having regard to the wider public interest, the prejudice of depriving duly elected members of representation and maintaining the President's exercise of his constitutional role outweighed the prejudice argued by applicants; status quo should be preserved pending a substantive hearing scheduled within weeks.

Citation
CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. YAU WAI CHING AND OTHERS
Parties
1st Applicant / 1st Plaintiff: Chief Executive of the Hong Kong Special Administrative Region; 2nd Applicant / 2nd Plaintiff: The Secretary for Justice; Respondent / 3rd Defendant: The President of the Legislative Council; 1st Interested Party / 2nd Defendant: Sixtus Leung Chung Hang; 2nd Interested Party / 1st Defendant: Yau Wai Ching; 3rd Party / Corporate Defendant: The Legislative Council
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 October 2016
Case Number
HCMP2819/2016
Procedural Posture
Judicial Review and Related HCMP in Constitutional and Administrative Law / Application for Interim Relief (interim Injunction) With Directions for Substantive Hearing
Outcome
Application for interim injunction refused
Legal Topics
Oath Taking, Disqualification From Office, Interim Injunctions, Balance of Convenience, American Cyanamid Principles, Basic Law Article 104, Oaths and Declarations Ordinance Sections 19 and 21
Source Language
EN
Constitutional Law Administrative Law Public Law Electoral Law Statutory Interpretation Oath Taking Disqualification From Office Interim Injunctions +4 more

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Parties

Chief Executive of the Hong Kong Special Administrative Region

1st Applicant / 1st Plaintiff

The Secretary for Justice

2nd Applicant / 2nd Plaintiff

The President of the Legislative Council

Respondent / 3rd Defendant

Sixtus Leung Chung Hang

1st Interested Party / 2nd Defendant

Yau Wai Ching

2nd Interested Party / 1st Defendant

The Legislative Council

3rd Party / Corporate Defendant

Procedural Posture

Judicial Review and Related HCMP in Constitutional and Administrative Law / Application for Interim Relief (interim Injunction) With Directions for Substantive Hearing

Legal Issues

  1. 1 Whether Ms Yau and Mr Leung were disqualified from office by their manner of taking the oath under s21 of the Oaths and Declarations Ordinance read with Article 104 of the Basic Law
  2. 2 Whether an interim injunction should be granted to restrain the President from permitting a retake of the oath and to restrain the applicants from acting as LegCo members pending determination
  3. 3 How to apply the balance of convenience and public interest in an interlocutory public law context

Ratio Decidendi

The court refused the interim injunction because, on the balance of convenience and having regard to the wider public interest, the prejudice of depriving duly elected members of representation and maintaining the President's exercise of his constitutional role outweighed the prejudice argued by applicants; status quo should be preserved pending a substantive hearing scheduled within weeks.

Court Disposition

Application for interim injunction refused

Orders

  • Interim injunction refused
  • Defendants/respondents to file evidence in opposition by 24 October 2016