KU CHUN HIN ZLATO v. SECRETARY FOR JUSTICE

KU CHUN HIN ZLATO v. SECRETARY FOR JUSTICE

On a fair, contextual and purposive construction of the Basic Law the Ordinance (s 6) is within the legislative competence of the HKSAR to establish a Mainland Port Area for CIQ purposes and to deem that area for specified purposes to lie outside Hong Kong such that Mainland laws apply and Hong Kong laws do not...

Source-derived case information.

Citation
[2018] HKCFI 2657
Parties
Applicant: Leung Chung Hang; Applicant: Leung Kwok Hung; Applicant: Kwok Cheuk Kin; Applicant: Ku Chun Hin; Applicant: Lui Chi Hang Hendrick; Putative Respondent: President of the Legislative Council; Putative Respondent: Secretary for Justice; Putative Respondent / Interested Party: Secretary for Transport and Housing; Putative Respondent: Chief Executive of the HKSAR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 December 2018
Case Number
HCAL1171/2018
Procedural Posture
Judicial Review (constitutional) / Judgment (court of First Instance)
Outcome
Leave to apply for judicial review granted; substantive judicial review applications dismissed
Legal Topics
Basic Law Interpretation, Application of National Law in HKSAR, Jurisdiction and Courts, Co Location Immigration Arrangement, Legislative Competence, Reserved Matters
Source Language
en
Constitutional Law Administrative Law Immigration Law Public Law Basic Law Interpretation Application of National Law in HKSAR Jurisdiction and Courts Co Location Immigration Arrangement +2 more

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Parties

Leung Chung Hang

Applicant

Leung Kwok Hung

Applicant

Kwok Cheuk Kin

Applicant

Ku Chun Hin

Applicant

Lui Chi Hang Hendrick

Applicant

President of the Legislative Council

Putative Respondent

Secretary for Justice

Putative Respondent

Secretary for Transport and Housing

Putative Respondent / Interested Party

Chief Executive of the HKSAR

Putative Respondent

Procedural Posture

Judicial Review (constitutional) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether Guangzhou–Shenzhen–Hong Kong Express Rail Link (Co-location) Ordinance (Cap 632) is inconsistent with the Basic Law
  2. 2 Whether Mainland laws may be applied and Hong Kong laws dis-applied within the West Kowloon Mainland Port Area (MPA)
  3. 3 Whether jurisdiction of Hong Kong courts can be excluded in the MPA except for reserved matters

Ratio Decidendi

On a fair, contextual and purposive construction of the Basic Law the Ordinance (s 6) is within the legislative competence of the HKSAR to establish a Mainland Port Area for CIQ purposes and to deem that area for specified purposes to lie outside Hong Kong such that Mainland laws apply and Hong Kong laws do not apply to non-reserved matters; the NPCSC Decision is admissible post-enactment material of high persuasive value and there is no constitutional bar to the co-location arrangement limited to the specific facts of the project.

Court Disposition

Leave to apply for judicial review granted; substantive judicial review applications dismissed

Orders

  • Leave granted to applicants in HCAL1160, 1164, 1165 and 1178 to apply for judicial review
  • Substantive applications for judicial review dismissed