LEUNG CHUNG HANG, SIXTUS v. PRESIDENT OF LEGISLATIVE COUNSEL

LEUNG CHUNG HANG, SIXTUS v. PRESIDENT OF LEGISLATIVE COUNSEL

On a purposive reading of the Basic Law and having regard to context and purpose, the legislature may enact a limited deeming provision to treat the defined West Kowloon Mainland Port Area as subject to Mainland jurisdiction and laws for CIQ purposes; the Ordinance (Section 6) is therefore consistent with the Basic Law and the substantive judicial review challenges are dismissed.

Citation
[2018] HKCFI 2657
Parties
Applicant: Leung Chung Hang; Applicant: Leung Kwok Hung; Applicant: Kwok Cheuk Kin; Applicant: Lui Chi Hang Hendrick; Putative Respondent: President of the Legislative Council; Putative Respondent / Interested Party: Secretary for Justice; Putative Respondent / Interested Party: Secretary for Transport and Housing; Putative Respondent / Interested Party: Chief Executive of the HKSAR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 December 2018
Case Number
HCAL1160/2018
Procedural Posture
Judicial Review (constitutional/administrative) / Court of First Instance Judgment (disposition)
Outcome
Leave to apply for judicial review granted but substantive applications dismissed; Ordinance held consistent with the Basic Law
Legal Topics
Basic Law Interpretation, Co Location Arrangement, Application of National Laws in HKSAR, Jurisdiction of Courts, Deeming Provisions
Source Language
EN
Constitutional Law Administrative Law Immigration Law Basic Law Interpretation Co Location Arrangement Application of National Laws in HKSAR Jurisdiction of Courts Deeming Provisions

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Parties

Leung Chung Hang

Applicant

Leung Kwok Hung

Applicant

Kwok Cheuk Kin

Applicant

Lui Chi Hang Hendrick

Applicant

President of the Legislative Council

Putative Respondent

Secretary for Justice

Putative Respondent / Interested Party

Secretary for Transport and Housing

Putative Respondent / Interested Party

Chief Executive of the HKSAR

Putative Respondent / Interested Party

Procedural Posture

Judicial Review (constitutional/administrative) / Court of First Instance Judgment (disposition)

Legal Issues

  1. 1 Whether Section 6 of the Guangzhou‑Shenzhen‑Hong Kong Express Rail Link (Co‑location) Ordinance (Cap 632) is inconsistent with the Basic Law (Articles 2,16,17,18,19,80 et seq.)
  2. 2 Whether the Ordinance unlawfully applies national (Mainland) laws in Hong Kong outside Annex III
  3. 3 Whether the Ordinance unlawfully ousts the jurisdiction of Hong Kong courts in respect of the Mainland Port Area

Ratio Decidendi

On a purposive reading of the Basic Law and having regard to context and purpose, the legislature may enact a limited deeming provision to treat the defined West Kowloon Mainland Port Area as subject to Mainland jurisdiction and laws for CIQ purposes; the Ordinance (Section 6) is therefore consistent with the Basic Law and the substantive judicial review challenges are dismissed.

Court Disposition

Leave to apply for judicial review granted but substantive applications dismissed; Ordinance held consistent with the Basic Law

Orders

  • Leave granted to amend specified Forms 86 as outlined in judgment
  • No order as to costs in the five applications generally; exception: Leung (HCAL1160) ordered to pay costs of the President of the Legislative Council to be taxed if not agreed