CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL

Although the applicants demonstrated a good arguable case that the two individuals may be disqualified under s21 read with Article 104, the court refused the interim injunction because the balance of convenience and wider public interest favoured maintaining the status quo: the prejudice of depriving elected representation outweighed the prejudice of allowing the individuals to retake the oath pending an expedited substantive hearing; therefore interim relief that would disturb the status quo was not justified.

Citation
CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL
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
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 October 2016
Case Number
HCAL185/2016
Procedural Posture
Judicial Review and Related HCMP Proceeding (constitutional/administrative) / Interim Application for Interlocutory Relief — Ruling on Interim Injunction and Directions for Substantive Hearing
Outcome
Application for interim injunction refused.
Legal Topics
Oaths and Declarations, Disqualification From Office, Interim Injunctions, Public Interest
Source Language
EN
Constitutional Law Administrative Law Electoral Law Oaths and Declarations Disqualification From Office Interim Injunctions Public Interest

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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

Procedural Posture

Judicial Review and Related HCMP Proceeding (constitutional/administrative) / Interim Application for Interlocutory Relief — Ruling on Interim Injunction and Directions for Substantive Hearing

Legal Issues

  1. 1 Whether Ms Yau and Mr Leung were disqualified from entering office under Section 21 of the Oaths and Declarations Ordinance read with Article 104 of the Basic Law given the manner in which they purported to take the oath on 12 October 2016
  2. 2 Whether the court should grant an interim injunction restraining the President of LegCo from permitting a re‑taking of the oath and restraining the two individuals from purporting to retake the oath or to act as LegCo members pending substantive determination

Ratio Decidendi

Although the applicants demonstrated a good arguable case that the two individuals may be disqualified under s21 read with Article 104, the court refused the interim injunction because the balance of convenience and wider public interest favoured maintaining the status quo: the prejudice of depriving elected representation outweighed the prejudice of allowing the individuals to retake the oath pending an expedited substantive hearing; therefore interim relief that would disturb the status quo was not justified.

Court Disposition

Application for interim injunction refused.

Orders

  • Application for interim relief refused.
  • Defendants/respondents to file evidence in opposition by 24 October 2016.