THE CHIEF EXECUTIVE OF THE HKSAR AND ANOTHER v. YAU WAI CHING AND OTHERS

THE CHIEF EXECUTIVE OF THE HKSAR AND ANOTHER v. YAU WAI CHING AND OTHERS

The oaths taken by Leung and Yau on 12 October 2016 were intentionally non-compliant in form and substance with BL104 and the ODO; under section 21 ODO a person who declines or neglects to take a required oath shall vacate or be disqualified automatically, so both had vacated/been disqualified from that date; the non-intervention principle does not bar judicial review where the written constitution and statutory scheme make oath validity a justiciable question; the President's decision to permit re-taking was legally untenable and is quashed; CE has locus to bring proceedings to enforce BL104 and the ODO.

Citation
THE CHIEF EXECUTIVE OF THE HKSAR 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: Secretary for Justice; Respondent / 3rd Defendant: 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
15 November 2016
Case Number
HCMP2819/2016
Procedural Posture
Judicial Review and HCMP (constitutional and Administrative Law) / Judgment on Merits (final Decision)
Outcome
Applications allowed on substantive issues: oaths declared invalid; seats declared vacant and persons disqualified; President's decision quashed; injunctions granted.
Legal Topics
Oath Taking, Disqualification of Legislators, Non Intervention Principle, Judicial Review, NPCSC Interpretation, Immunity of Legislators
Source Language
EN
Constitutional Law Administrative Law Legislative Procedure Public Law Statutory Interpretation Oath Taking Disqualification of Legislators Non Intervention Principle +3 more

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Parties

Chief Executive of the Hong Kong Special Administrative Region

1st Applicant / 1st Plaintiff

Secretary for Justice

2nd Applicant / 2nd Plaintiff

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 HCMP (constitutional and Administrative Law) / Judgment on Merits (final Decision)

Legal Issues

  1. 1 Whether the oaths taken on 12 October 2016 complied with Basic Law Article 104 and the Oaths and Declarations Ordinance
  2. 2 Whether section 21 Oaths and Declarations Ordinance operates automatically to vacate or disqualify a LegCo member who declines or neglects to take the oath
  3. 3 Whether the courts may adjudicate challenges to LegCo oath‑taking or whether such matters are internal business of LegCo (non-intervention principle)

Ratio Decidendi

The oaths taken by Leung and Yau on 12 October 2016 were intentionally non-compliant in form and substance with BL104 and the ODO; under section 21 ODO a person who declines or neglects to take a required oath shall vacate or be disqualified automatically, so both had vacated/been disqualified from that date; the non-intervention principle does not bar judicial review where the written constitution and statutory scheme make oath validity a justiciable question; the President's decision to permit re-taking was legally untenable and is quashed; CE has locus to bring proceedings to enforce BL104 and the ODO.

Court Disposition

Applications allowed on substantive issues: oaths declared invalid; seats declared vacant and persons disqualified; President's decision quashed; injunctions granted.

Orders

  • Declaration that the purported oaths taken by Sixtus Leung Chung Hang and Yau Wai Ching on 12 October 2016 contravened Basic Law Article 104 and ss 16(d), 19(a) and Schedule 2 of the Oaths and Declarations Ordinance and are invalid and void
  • Declaration that Sixtus Leung Chung Hang and Yau Wai Ching have been disqualified from assuming the office of member of the Legislative Council and have vacated that office since 12 October 2016 and are not entitled to act as members