TSANG KIN-SHING v. THE SECRETARY FOR TRANSPORT AND HOUSING AND OTHERS

TSANG KIN-SHING v. THE SECRETARY FOR TRANSPORT AND HOUSING AND OTHERS

The court refused leave because the CEIC Decision was an intermediate, non-decisive step in a multi-stage Three-step Process whose substantive legal and factual consequences depend on future agreements, an NPCSC decision and domestic legislation; the challenge is therefore premature and there are no exceptional...

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Citation
TSANG KIN-SHING v. THE SECRETARY FOR TRANSPORT AND HOUSING AND OTHERS
Parties
Applicant: TSANG KIN-SHING; 1st Putative Respondent: THE SECRETARY FOR TRANSPORT AND HOUSING; 2nd Putative Respondent: THE SECRETARY FOR SECURITY; 3rd Putative Respondent: THE SECRETARY FOR JUSTICE; 4th Putative Respondent: THE CHIEF EXECUTIVE IN COUNCIL
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 September 2017
Case Number
HCAL458/2017
Procedural Posture
Judicial Review (constitutional and Administrative) / Leave to Apply for Judicial Review (leave Stage)
Outcome
Applications for leave to apply for judicial review in HCAL 453/2017 and HCAL 455/2017 refused as premature; HCAL 458/2017 and HCAL 460/2017 withdrawn; costs orders made
Legal Topics
Prematurity, Pre Enactment Challenge, Basic Law Interpretation, Co Location Immigration Arrangements, Separation of Powers
Source Language
en
Constitutional Law Administrative Law Judicial Review Public Law Prematurity Pre Enactment Challenge Basic Law Interpretation Co Location Immigration Arrangements +1 more

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Parties

TSANG KIN-SHING

Applicant

THE SECRETARY FOR TRANSPORT AND HOUSING

1st Putative Respondent

THE SECRETARY FOR SECURITY

2nd Putative Respondent

THE SECRETARY FOR JUSTICE

3rd Putative Respondent

THE CHIEF EXECUTIVE IN COUNCIL

4th Putative Respondent

Procedural Posture

Judicial Review (constitutional and Administrative) / Leave to Apply for Judicial Review (leave Stage)

Legal Issues

  1. 1 Whether the challenge to the Chief Executive in Council decision endorsing the Proposed Co-location Arrangement is premature
  2. 2 Whether the CEIC Decision is a substantive, decisive act amenable to judicial review at the leave stage
  3. 3 Whether the challenge amounts to a pre-enactment challenge to future local legislation and is therefore non-justiciable at this stage

Ratio Decidendi

The court refused leave because the CEIC Decision was an intermediate, non-decisive step in a multi-stage Three-step Process whose substantive legal and factual consequences depend on future agreements, an NPCSC decision and domestic legislation; the challenge is therefore premature and there are no exceptional circumstances warranting early judicial intervention.

Court Disposition

Applications for leave to apply for judicial review in HCAL 453/2017 and HCAL 455/2017 refused as premature; HCAL 458/2017 and HCAL 460/2017 withdrawn; costs orders made

Orders

  • Leave to amend Form 86 refused in HCAL 453/2017 and HCAL 455/2017
  • Leave to apply for judicial review refused in HCAL 453/2017 and HCAL 455/2017