Hong Kong Case Law: Decisions & Judgments

Topic

Npcsc interpretation

Legal area

Court

19 May 2023

LAI CHEE-YING v. SECRETARY FOR JUSTICE

Citation

[2023] HKCFI 1382
Court

Court of First Instance
Case number

HCMP253/2023

NSL Article 14, read with the NPCSC Interpretation, places the work and decisions of the NSC beyond the supervisory jurisdiction of the HKSAR courts; where courts have not obtained a Chief Executive certificate under NSL 47 the NPCSC Interpretation empowers the NSC to decide the Question locally and the Director lawfully must implement the NSC decision; accordingly the leave application for judicial review was refused and both the JR and OS proceedings dismissed.
19 May 2023

LAI CHEE-YING v. THE COMMITTEE FOR SAFEGUARDING NATIONAL SECURITY OF THE HKSAR AND ANOTHER

Citation

[2023] HKCFI 1382
Court

Court of First Instance
Case number

HCAL566/2023

NSL Article 14, read with the NPCSC Interpretation, deprives HKSAR courts of jurisdiction to judicially review the work or decisions of the Committee for Safeguarding National Security; consequently the NSC Decision and the Director of Immigration's implementing decision are not amenable to judicial review and are intra vires under the NSL; the leave application is refused and the proceedings are dismissed.
2 Sept 2019

CHOW TING v. TENG YU YAN ANNE (THE RETURNING OFFICER FOR THE HONG KONG ISLAND CONSTITUENCY) AND ANOTHER

Citation

[2019] HKCFI 2135
Court

Court of First Instance
Case number

HCAL804/2018

The court held that s40(1)(b)(i) requires an objective, substantive intention to uphold the Basic Law and pledge allegiance; the Returning Officer was required to give the petitioner a reasonable opportunity to respond to adverse materials before invalidating the nomination; the failure to afford that opportunity was a material irregularity; accordingly the Election Petition was allowed and the declared result set aside (Au Nok Hin was not duly elected).
13 Jun 2019

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

Citation

[2019] HKCA 645
Court

Court of Appeal
Case number

CACV201/2017

The court refused leave because questions 1–6 are settled by binding authorities and plainly unarguable, questions 7–8 are academic and would not affect the outcome, the applicant's contention about expert evidence had already been rejected by this Court and the CFA Appeal Committee, and the second application constituted an abuse of process; accordingly both notices of motion for leave to appeal were dismissed with costs.
13 Jun 2019

SECRETARY FOR JUSTICE v. LEUNG KWOK HUNG

Citation

[2019] HKCA 645
Court

Court of Appeal
Case number

CACV200/2017

The Court refused leave because the questions raised were either settled by binding authority or academic in the circumstances, the NPCSC Interpretation did not supplement BL104 and stated what Hong Kong law had always been, and prior refusals to admit the Mainland expert report and to grant leave rendered further attempts an abuse of process; accordingly leave to appeal was refused and costs awarded.
15 Feb 2019

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

Citation

[2019] HKCA 173
Court

Court of Appeal
Case number

CACV201/2017

The NPCSC Interpretation was valid, binding and retrospective; the Interpretation correctly stated existing constitutional and statutory requirements that an oath must be read in the exact form and taken solemnly and sincerely; on objective assessment the appellant’s conduct (use of props, chanting, tearing paper and related conduct) fell outside the permissible range of solemnity and altered the oath’s form and substance; therefore the appellant declined or neglected to take the LegCo oath and is disqualified; appeal dismissed.
1 Sept 2017

SIXTUS LEUNG CHUNG HANG v. CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, SECRETARY FOR JUSTICE

Citation

SIXTUS LEUNG CHUNG HANG v. CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, SECRETARY FOR JUSTICE
Court

Court of Final Appeal
Case number

FAMV10/2017

The applications for leave to appeal were dismissed because the questions, though of public importance, were not reasonably arguable; the courts are obliged to determine whether BL104 and the Ordinance were complied with, the factual findings that the applicants declined or neglected to take the LegCo oath were unassailable, section 21 operates to disqualify in those circumstances, and the NPCSC Interpretation is binding and does not oust judicial review in this context.
14 Jul 2017

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

Citation

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

Court of First Instance
Case number

HCAL226/2016

On an objective assessment against the constitutional and statutory requirements (Exact Form and Content, Solemnity, Substantive Belief), each of the four members-elect manifested conduct or words that altered or failed to comply with the prescribed oath (adding words, inserting unrelated statements, mechanical/incoherent reading or theatrical conduct) and thus lawfully are treated as having declined or neglected to take the LegCo Oath on 12 October 2016; they were therefore disqualified from assuming office from that date and the Clerk/President decisions allowing retakes in these cases were…
30 Nov 2016

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

Citation

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

Court of Appeal
Case number

CACV227/2016

Article 104 is a constitutional requirement enforceable by the courts; the NPCSC Interpretation clarifies that declining or deliberately invalid oath-taking results in immediate disqualification; section 21 of the Oaths and Declarations Ordinance gives statutory effect to that consequence and causes automatic vacation of office; the non-intervention principle does not prevent judicial adjudication of compliance with constitutional oath requirements; the President/Clerk has administrative duties but not exclusive judicial fact-finding power to override the courts; appeals dismissed.
30 Nov 2016

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

Citation

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

Court of Appeal
Case number

CACV226/2016

Article 104 is a constitutional prerequisite to assuming LegCo office; the NPCSC Interpretation clarifies that declining to take the oath results in immediate disqualification; section 21 of the Oaths and Declarations Ordinance effects automatic vacation of office upon such declining or neglect; the common law non-intervention principle does not bar judicial adjudication of compliance with constitutional requirements; the courts therefore have jurisdiction to declare that Leung and Yau vacated their offices and to dismiss the appeals.