IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
CONSTITUTIONAL
AND ADMINISTRATIVE LAW LIST
NO
223 OF 2016
_______________
BETWEEN
|
||
CHIEF
EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
|
1st
Applicant
|
|
SECRETARY
FOR JUSTICE
|
2nd
Applicant
|
|
and
|
||
PRESIDENT
OF THE LEGISLATIVE COUNCIL
|
Respondent
|
|
NATHAN
LAW KWUN CHUNG
|
Interested
Party
|
|
_______________
|
||
AND
HCAL
224/2016
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
CONSTITUTIONAL
AND ADMINISTRATIVE LAW LIST
NO
224 OF 2016
_______________
BETWEEN
|
||
CHIEF
EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
|
1st
Applicant
|
|
SECRETARY
FOR JUSTICE
|
2nd
Applicant
|
|
and
|
||
CLERK
TO THE LEGISLATIVE COUNCIL
|
Respondent
|
|
LEUNG
KWOK HUNG
|
Interested
Party
|
|
_______________
|
||
AND
HCAL
225/2016
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
CONSTITUTIONAL
AND ADMINISTRATIVE LAW LIST
NO
225 OF 2016
_______________
BETWEEN
|
||
CHIEF
EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
|
1st
Applicant
|
|
SECRETARY
FOR JUSTICE
|
2nd
Applicant
|
|
and
|
||
PRESIDENT
OF THE LEGISLATIVE COUNCIL
|
Respondent
|
|
LAU
SIU LAI
|
Interested
Party
|
|
_______________
|
||
AND
HCAL
226/2016
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
CONSTITUTIONAL
AND ADMINISTRATIVE LAW LIST
NO
226 OF 2016
_______________
BETWEEN
|
||
CHIEF
EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
|
1st
Applicant
|
|
SECRETARY
FOR JUSTICE
|
2nd
Applicant
|
|
and
|
||
PRESIDENT
OF THE LEGISLATIVE COUNCIL
|
Respondent
|
|
Interested
Party
|
||
_______________
|
||
AND
HCMP
3378/2016
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
MISCELLANEOUS
PROCEEDINGS NO 3378 OF 2016
_______________
BETWEEN
|
||
SECRETARY
FOR JUSTICE
|
Plaintiff
|
|
and
|
||
Defendant
|
||
_______________
|
||
AND
HCMP
3379/2016
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
MISCELLANEOUS
PROCEEDINGS NO 3379 OF 2016
_______________
BETWEEN
|
||
SECRETARY
FOR JUSTICE
|
Plaintiff
|
|
and
|
||
NATHAN
LAW KWUN CHUNG
|
Defendant
|
|
_______________
|
||
AND
HCMP
3381/2016
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
MISCELLANEOUS
PROCEEDINGS NO 3381 OF 2016
_______________
BETWEEN
|
||
SECRETARY
FOR JUSTICE
|
Plaintiff
|
|
and
|
||
LAU
SIU LAI
|
Defendant
|
|
_______________
|
||
AND
HCMP
3382/2016
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
MISCELLANEOUS
PROCEEDINGS NO 3382 OF 2016
_______________
BETWEEN
|
||
SECRETARY
FOR JUSTICE
|
Plaintiff
|
|
and
|
||
LEUNG
KWOK HUNG
|
Defendant
|
|
_________________
|
||
(heard
together)
|
||
Before:
Hon Au J in Court
Dates
of Hearing: 1 ‑ 3 March 2017
Dates
of Written Submissions on Permanent Stay: 17, 31 March and 12
April 2017
Date
of Judgment: 14 July 2017
________________________
J
U D G M E N T
________________________
A.
INTRODUCTION
1. These
proceedings raise the important legal questions of whether the oath
required by the constitution to be taken by all members‑elect
of the Legislative Council (“the LegCo”) was validly taken by the
four members-elect herein, and whether in law they should be regarded
to have declined or neglected to take the oath, and thereby be
disqualified from taking up the office of a LegCo member.
2. Mr
Law Kwun Chung (“Mr Law”), Mr Leung Kwok Hung (“Mr Leung”),
Ms Lau Siu Lai (“Ms Lau”) and Mr 
Yiu
Chung Yim
(“Mr
Yiu”) were respectively elected in the general election held in
September 2016 to be a member of the LegCo. For convenience, I
will refer them collectively as “the Defendants”.
Yiu
Chung Yim (“Mr
Yiu”) were respectively elected in the general election held in
September 2016 to be a member of the LegCo. For convenience, I
will refer them collectively as “the Defendants”.
3. However,
before the Defendants could validly assume the office (“the
Office”) of a LegCo member, as members‑elect, they
were mandatorily
and constitutionally required under
Article 104 of the Basic Law[1] (“BL104”)
to take the legislative oath (“the LegCo Oath”) to swear to
uphold the Basic Law (“the BL”) and to swear allegiance to the
Hong Kong Special Administrative Region of the People’s Republic of
China.
4. The
content and form of the LegCo Oath is prescribed by section 16(d) and
Schedule 2 of the Oaths and Declarations Ordinance (Cap 11) (“ODO”),
which is as follows:
“THE
LEGISLATIVE COUNCIL OATH
I
swear that, being a member of the Legislative Council of the
Hong Kong Special Administrative Region of the People’s Republic of
China, I will uphold the Basic Law of the
Hong Kong Special Administrative Region of the People’s Republic of
China, bear allegiance to the Hong Kong Special Administrative Region
of the People’s Republic of China and serve the Hong
Kong Special Administrative Region conscientiously, dutifully, in
full accordance with the law, honestly and with integrity.
(name
of person making the oath)” (emphasis added)
5. Under
section 7 of the ODO, a member-elect could opt to make an affirmation
instead of taking an oath for the purpose of the LegCo Oath.
The form and content of the affirmation shall be the same as the
prescribed LegCo Oath, save that an affirmation shall commence with
“I, [name of the person] of [address], solemnly and sincerely
affirm” and end with “Affirmed at [date] before [the
administrator of the affirmation].”
6. Each
of the Defendants proceeded to take the LegCo Oath on 12 October 2016
before the Clerk to the LegCo (“the Clerk”) by way of
affirmation. For convenience, in this judgment, I would refer
to the making of affirmation by each of the Defendants as taking the
LegCo Oath.
7. The
Clerk administered the oath-taking by Mr Law, Mr Leung and Ms Lau.
But he declined the jurisdiction to administer Mr Yiu’s affirmation
as he was of the view that Mr Yiu altered the form of the LegCo Oath.
8. On
18 October 2016, the President of the LegCo (“the President”)
made a ruling on the validity of the LegCo Oath taken by, among
others, Mr Law, Ms Lau and Mr Yiu. For the present purposes,
the ruling (“the President’s Ruling”) is in substance that:
(1) Mr Law’s manner in taking the affirmation was consistent with the ODO and thus valid.
(2) Ms Lau’s affirmation was invalid in light of the way she purported to take the LegCo Oath. However, the President allowed her to make the affirmation afresh.
(3) The Clerk was correct in declining jurisdiction to administer Mr Yiu’s affirmation as he had altered the contents of the LegCo Oath when he purported to take the affirmation. The purported affirmation was inconsistent with the ODO and thus invalid. The President however allowed Mr Yiu to retake the affirmation afresh.
9. Ms
Lau and Mr Yiu purported to retake the LegCo Oath by way of
affirmation respectively on 2 November and 19 October 2016, which
have been treated by the President as valid.
10. By
way of these proceedings, the Chief Executive (“the CE”) and the
Secretary for Justice (“the SJ”) contend that the way and manner
in which each of the Defendants purported to take the LegCo Oath on
12 October 2016 was not in compliance with the legal requirements of
BL104 and the ODO and in law amounted to declining or neglecting to
take the LegCo Oath when requested to do so. In the premises,
as a matter of law, they have therefore been disqualified since 12
October 2016 from assuming or entering on the Office and could not be
permitted to retake the oath thereafter. The CE and the SJ
(collectively, “the Plaintiffs”) therefore also submit that (a)
the Clerk’s decision (“the Clerk’s Decision”) in accepting
the oath taken by Mr Leung as valid is wrong in law; and (b) the
President’s Ruling in accepting that Mr Law’s affirmation is
valid, and in allowing Ms Lau and Mr Yiu to retake the LegCo Oath is
similarly wrong in law.
11. By
way of the judicial reviews, the Plaintiffs seek (a) an order to
quash the President’s Ruling and the Clerk’s Decision; (b)
declarations that the LegCo Oath purportedly taken by each of the
Defendants is invalid, and that the President had no power to
administer the LegCo Oath purportedly retaken by Ms Lau and Mr Yiu on
19 October 2016; and (c) declarations that the Defendants have since
been disqualified from assuming or entering on the Office.
12. By
way of the respective Originating Summonses, in addition to the
invalidity declarations, the SJ seeks additionally declarations that
(a) each of the Defendants has been disqualified from assuming and
entering on the Office or has vacated the same, and the Office
purportedly held by each of the Defendants is now vacant; and (b)
each of the Defendants is not entitled to act or claim to act as a
member of the LegCo. The SJ also asks for an injunction to
restrain each of them from acting or claiming to act as a LegCo
member.
13. The
Defendants oppose these proceedings. They effectively say that
what they did in taking the LegCo Oath on 12 October 2016 was legally
compliant. Alternatively, even if what they did was not in strict
compliance with the legal requirements, they did not in law decline
or neglect to take the LegCo Oath on 12 October 2016. They were
therefore entitled to be allowed to retake the oath afresh.
14. In
light of the above contentions, it is obviously necessary for the
court to first identify the legal principles that govern the taking
of the LegCo Oath.
B.
THE LAW GOVERNING THE TAKING OF THE LEGCO OATH
15. The
law governing the taking of the LegCo Oath as prescribed under BL104
and the relevant provisions of the ODO has recently been reviewed by
the Court of Appeal in CE & SJ v President of LegCo (CACV
224 - 227/2016, 30 November 2016, per Cheung
CJHC, Lam VP and Poon JA) (“the CA Judgment”), upholding this
court’s first instance judgment (HCAL 185/2016 & HCMP
2819/2016, 15 November 2016) (“the CFI Judgment”), and in the
Court of Appeal’s judgment in refusing leave to appeal to the Court
of Final Appeal (CACV 224 ‑ 227/2016, 16 January
2017, per Cheung CJHC, Lam VP and Poon JA) (“the
CA Leave Judgment”).
16. Before
I set out the relevant legal principles governing the taking of the
LegCo Oath, it is useful to first remind ourselves the relevant
constitutional and statutory provisions pertinent to the requirements
for taking the oath. They are as follows.
B1.
BL104 and the Interpretation
17. First
and foremost, the starting point must be BL104 which provides the
constitutional requirement that, among others, a LegCo member-elect
must take the LegCo Oath before he or she could assume the Office.
“When
assuming office, the Chief Executive, principal officials, members of
the Executive Council and of the Legislative Council, judges of the
courts at all levels and other members of the judiciary in the Hong
Kong Special Administrative Region must, in accordance with law,
swear to uphold the Basic Law of the Hong Kong Special Administrative
Region of the People’s Republic of China and swear allegiance to
the Hong Kong Special Administrative Region of the People’s
Republic of China.”
19. Further,
the meaning of the BL104 has also been set out at paragraphs 1 to 3
of the Interpretation (“the Interpretation”) issued by the
Standing Committee of the National People’s Congress on 7 November
2016. They provide as follows:
“1.
‘To uphold the Basic Law of the Hong Kong Special Administrative
Region of the People’s Republic of China’ and to bear ‘allegiance
to the Hong Kong Special Administrative Region of the People’s
Republic of China’ as stipulated in Article 104 of the Basic Law of
the Hong Kong Special Administrative Region of the People’s
Republic of China, are not only the legal content which must be
included in the oath prescribed by the Article, but also the legal
requirements and preconditions for standing for election in respect
of or taking up the public office specified in the Article.
2.
The provisions in Article 104 of the Basic Law of the Hong Kong
Special Administrative Region of the People’s Republic of China
that ‘When assuming office’, the relevant public officers ‘must,
in accordance with law, swear’ bear the following meaning:
(1)
Oath taking is the legal prerequisite and required procedure for
public officers specified in the Article to assume office. No
public office shall be assumed, no corresponding powers and functions
shall be exercised, and no corresponding entitlements shall be
enjoyed by anyone who fails to lawfully and validly take the oath or
who declines to take the oath.
(2) Oath
taking must comply with the legal requirements in respect of its form
and content. An oath taker must take the oath sincerely and solemnly,
and must accurately, completely and solemnly read out the oath
prescribed by law, the content of which includes ‘will
uphold the Basic Law of the Hong Kong Special Administrative Region
of the People’s Republic of China, bear allegiance to the Hong Kong
Special Administrative Region of the People’s Republic of China’.
(3) An
oath taker is disqualified forthwith from assuming the public office
specified in the Article if he or she declines to take the oath.
An oath taker who intentionally reads
out words which do not accord with the wording of the oath prescribed
by law, or takes the oath in a manner which
is not sincere or not solemn, shall be treated as declining to take
the oath. The oath so taken is invalid and the oath taker is
disqualified forthwith from assuming the public office specified in
the Article.
(4)
The oath must be taken before the person authorized by law to
administer the oath. The person administering the oath has the duty
to ensure that the oath is taken in a lawful manner. He or she shall
determine that an oath taken in compliance with this Interpretation
and the requirements under the laws of the Hong Kong Special
Administrative Region is valid, and that an oath which is not taken
in compliance with this Interpretation and the requirements under the
laws of the Hong Kong Special Administrative Region is invalid. If
the oath taken is determined as invalid, no arrangement shall be made
for retaking the oath.
3.
The taking of the oath stipulated by Article 104 of the Basic Law of
the Hong Kong Special Administrative Region of the People’s
Republic of China is a legal pledge made by the public officers
specified in the Article to the People’s Republic of China and its
Hong Kong Special Administrative Region, and is legally binding. The
oath taker must sincerely believe in and strictly abide by the
relevant oath prescribed by law. An oath taker who makes a
false oath, or, who, after taking the oath, engages in conduct in
breach of the oath, shall bear legal responsibility in accordance
with law.” (emphasis added)
20. The
Interpretation as to the true and proper meaning of BL104 is binding
on all the courts in Hong Kong. See: Director of
Immigration v Chong Fong Yuen (2001) 4 HKCFAR 211 at
222G-H, per Li CJ; the CA Judgment, paragraphs 8,
29, 53 - 58; the CFI Judgment, paragraph 20.
21. In
this respect, Mr Lee SC (for Mr Leung) seeks to contend in these
proceedings that the Interpretation is not a true
and proper interpretation of BL104 as envisaged under Article 158 of
the BL, but amounts to an amendment of BL104. As such, it does
not and cannot operate retrospectively.
22. However,
the Court of Appeal in the CA Judgment at paragraphs 53 - 59,
in rejecting a similar argument, has concluded that the
Interpretation provides the true and proper meaning of BL104 and
takes effect from 1 July 1997. This conclusion is binding on
this court. This point is therefore simply not open to Mr Lee
to argue.[2]
B2.
The relevant provisions of the ODO
“Section:
16 Forms
of Oaths
The
Oaths referred to in this Ordinance as-
…
(d)
the Legislative Council Oath;
…
shall be
in the respective forms set out in Schedule 2.
…
Section:
19 Oath of Legislative Councillors
A
member of the Legislative Council shall, as soon as
possible after the commencement of his term of office,
take the Legislative Council Oath which-
(a)
if taken at the first sitting of the session of the Legislative
Council immediately after a general election of all members of the
Council and before the election of the President of the Council,
shall be administered by the Clerk to the Council;
(b)
if taken at any other sitting of the Council, shall be administered
by the President of the Council or any member acting in his place.”
(emphasis added)
25. Section
21 of the ODO further provides for the legal consequence of
non-compliance by a person who is requested to take an oath as
required under the ODO as follows:
“Section:
21 Consequence
of non-compliance
Any
person who declines or neglects to
take an oath duly requested which he is required to take
by this Part, shall-
(a)
if he has already entered on his office, vacate it, and
(b)
if he has not entered on his office, be disqualified from entering on
it.” (emphasis added)
B3.
The legal requirements for taking the LegCo Oath
26. Upon
considering the plain words of BL104, the Interpretation, the
relevant provisions in the ODO, the CA Judgment, the CA Leave
Judgment, and the CFI Judgment, together with the authorities cited
in those judgments, the court has identified the following legal
principles which govern the taking of the LegCo Oath as prescribed by
BL104.
27. First,
it is a constitutional and mandatory requirement that a member elect
of the LegCo must properly and validly take the LegCo Oath both
in form and in substance as required by the law before he
could assume the Office. In other words, taking the LegCo Oath
in accordance with the law is a prerequisite and precondition to the
assumption of the Office. See: BL104, the Interpretation,
paragraph 2(1) and the CA Judgment, paragraph 27.
(1) take the LegCo Oath in exactly the same form and content as prescribed under Schedule 2 of the ODO (“the Exact Form and Content Requirement”);
(2) do it solemnly and sincerely (“the Solemnity Requirement”); and
(3) sincerely believe in and strictly abide by the pledges in the oath at the time of taking the oath (“the Substantive Belief Requirement”).
See: the Interpretation, paragraphs 2(2), (3) and 3; the CA Judgment, paragraph 27.
29. Third,
under the Exact Form and Content Requirement, the oath taker must
accurately and completely read out the oath as prescribed. Further,
as set out expressly under paragraph 2(3) of the Interpretation, an
oath taker who “intentionally reads out words which
do not accord with the wording of the oath prescribed by law, …,
shall be treated as declining to take the oath. The oath so
taken is invalid and the oath taker is disqualified forthwith from
assuming the public office specified in [BL104]” (emphasis added).
The mischief of “reading out words which do not accord with the
wording of the prescribed oath” provided in this paragraph as a
matter of plain meaning must cover not only the failure to read out
words of the prescribed form of the oath, but also the adding of
words or worded messages to the taking of the oath. In the
premises, if the oath taker fails to read out the prescribed oath
completely and accurately, or seeks to add to the oath other words or
worded messages, this would be regarded in law as altering the form
and content of the prescribed oath and thus in breach of the Exact
Form and Content Requirement. See also the Interpretation, paragraphs
2(1) and (3).
30. This
is also consistent with the judgement in Leung Kwok Hung v
Legislative Council Secretariat (HCAL 112/2004, 6 October
2004, perHartmann J) at paragraph 35 - 37, as I
will further explain at paragraphs 88 - 91 below.
31. Fourth,
under the Solemnity Requirement, the oath taker must take the oath in
a such solemn manner. The word “solemn” bears the commonly
understood meaning of being dignified and formal.[3] In
other words, understood in the context of oath taking, the oath taker
has to take the oath in such dignified and formal way and manner
which commensurate and is consistent with the respect that should be
accorded to the constitutional
importance of
the oath taking requirement,and to reflect and underline the very
serious and important commitment of the oath taker to bind himself or
herself to bear true allegiance to the Hong Kong Special
Administrative Region of the People’s Republic of China and to
uphold the BL. See: the Interpretation, paragraphs 2(2) and
(3); the CA Judgment, paragraph 26 and 27, per Cheung
CJHC, paragraph 72, perLam
VP; the CFI Judgment, paragraphs 31 to 33; and AG
v Bradlaugh (1885)
14 QBD 667 at 685, per Brett
MR.
32. Fifth,
under the Substantive Belief Requirement, the oath taker in taking
the oath must at the time of the oath also faithfully and genuinely
commit and bind himself or herself to uphold and abide by the
obligations set out in the LegCo Oath. See: the Interpretation,
paragraph 3; the CA Judgment, paragraph 26 and 27, per Cheung
CJHC, paragraph 72, per Lam VP; the CFI Judgment,
paragraphs 31 to 33.
33. Sixth,
an oath taker who seeks to alter the form, manner or substance of the
oath when taking it will offend BL104 and be unlawful and of no
effect. See: the Interpretation, paragraph 2(2); the CFI
Judgment, paragraph 31, adopting Leung Kwok Hung v
Legislative Council Secretariat, supra, at paragraphs
36 - 40.
34. An
oath taker would be in law disqualified from assuming or entering on
the Office or must vacate the Office if he or she declines or
neglects to take the LegCo Oath when requested to do so. In
this respect, the oath taker shall be regarded in law to have
declined or neglected to take the LegCo Oath if he commits any
intentional acts or conducts, which are found not to be compliant
with the oath taking legal requirements. See: the
Interpretation, paragraphs 2(3) and (4); section 21 of the ODO; the
CA Judgment, paragraph 43; the CFI Judgment, paragraphs 34 - 35
and 94 - 100.
35. Seventh,
the court is the final arbiter in determining whether an oath taker
has declined or omitted to take the LegCo Oath in failing to comply
with the legal requirements. See: the CA Judgment, paragraphs
32 ‑ 33.
36. Eighth,
the court adopts an objective test in
determining this question. In other words, the court would
determine whether the manner and way in which an oath taker takes the
LegCo Oath when assessed and viewed objectively is
compliant with the legal requirements and whether the said manner and
way is carried out intentionally or wilfully. See: the CA
Judgment, paragraphs 5, 27 and 41; the CFI Judgment, paragraphs 33,
35(1), 38 ‑ 40, 42, 45 and 46.
37. In
this respect, given the objective assessment, the court would look at
the conducts, manner and words adopted by an oath taker in taking the
LegCo Oath with a view to deciding what meaning those conducts,
manner and words convey to a reasonable person, and whether he or she
intentionally acted in such a way. In this objective exercise,
the court is not concerned with the subjective
meaning of the conducts, manner and words adopted by the oath taker
and the oath taker’s subjective intention or thinking in so doing
is irrelevant. Cf: Ming Shiu Chung v Ming Shiu
Sum (2006) 9 HKCFAR 334 at paragraph 72, per Ribeiro
PJ.
38. The
above principles are in my view clear in light of the authorities and
the constitutional and statutory provisions. However, in
support of their opposition in these proceedings, the Defendants’
respective leading counsel have advanced a number of submissions
seeking to challenge or qualify the above legal principles. It
is convenient for me to deal with these general legal submissions at
this stage.
39. First,
Mr Lee SC submits that both BL104 and sections 16 and 19 of the ODO
have not prescribed expressly for the manner in which the oath should
be taken. More importantly, says Mr Lee, these provisions have
not provided expressly for the requirement that the oath should be
taken “solemnly”. In the premises, Mr Lee argues that as
a matter of law, there is simply no requirement that the LegCo
Oath must be taken in a solemn and sincere manner, and an oath taker
can adopt whatever manner and form he finds most appropriate to
express his intention to bind his conscience with the obligations in
the oath that he is to take. In further support of this
contention, Mr Lee also submits that the modern attitude towards the
taking of oaths and affirmation is to regard it as mere ritualistic
formality. As such, coupled with the lack of any statutory
provisions prescribing the manner for taking the oath, there could
not be any legal requirement for taking the oath in a solemn manner.
(1) As set out above, paragraph 2 of the Interpretation has clearly provided that the prescribed oath must be taken solemnly and sincerely. It is therefore a constitutional and legal requirement that the oath taker must take the oath in a solemn and sincere manner.
(2) In any event, as observed by this court in the CFI Judgment at paragraphs 31 and 32, as a matter of common law, given its importance, an oath must be taken solemnly and sincerely. The Court of Appeal in the CA Judgment at paragraph 27 also confirms that the prescribed oath must be taken solemnly and sincerely.
41. It
is therefore clear and unarguable that a member-elect of the
LegCo must take the LegCo Oath in a solemn and
sincere manner as a matter of law.
42. Second,
Mr Lee further submits that, even if the law requires the oath taker
to take the oath solemnly, what manner can or cannot be regarded as
“solemn” in a given circumstance has no clear and absolute
definition. There must be a range of acceptable conducts and
behavior which could be regarded as sufficiently solemn in taking the
LegCo Oath. In the premises, Mr Lee says the court in assessing
whether a member-elect has taken the LegCo Oath “solemnly” as
required by the law, the court should have regard to LegCo’s
accepted various rules and practices (collectively, “LegCo
Practices”) relating to members’ attire and display of objects in
the LegCo.[4] Premised
on this, Mr Lee further says that, as a matter of principle, as long
as the member-elect takes the LegCo Oath in a manner that accords
with the LegCo Practices, the requirement of solemnity is fulfilled.
44. When
an act is required to be carried out solemnly, the degree of the
requisite solemnity may vary according to the occasion and purpose of
which the concerned act is to be carried out. For the present
purposes, the requisite degree of solemnity should be measured
against the constitutional importance of taking the LegCo Oath and
the utmost seriousness of the obligations pledged under the oath.
The oath is to swear allegiance to the Hong Kong Special
Administrative Region of the People’s Republic of China, and to
swear to uphold the BL. These are pledges of utmost
constitutional importance and significance, which must be undertaken
by the member-elect before he or she could assume the Office.
In the premises, the solemnness required of must reflect and
commensurate with the high constitutional importance of the occasion
and the serious purpose and promise of the oath taking.
45. On
the other hand, the LegCo Practices relate to members’ conducts in
LegCo’s proceedings and debates in exercising their rights and
duties as LegCo members. These are very different matters in
nature and purposes when compared with the oath taking occasion as
observed above. It is also pertinent to note that a member can
only exercise those rights and powers as a member of LegCo after he
or she has validly taken the LegCo Oath. Thus, as a matter of general
proposition, one cannot necessarily and simply equate what can be
regarded as acceptable conducts for a member in making speeches in a
LegCo debate with the degree of solemnity required of for the
constitutionally important and serious occasion of oath taking.
46. I
would therefore reject as a matter of principle the contention that
as long as the member-elect takes the LegCo Oath in a way and manner
that accords with the LegCo Practices, the legal requirement of
solemnity is fulfilled. Whether the concerned oath taking
manner or conduct of a member-elect meets the solemnity requirement
must be determined and assessed objectively in the individual
circumstances of each case.
47. Related
to the above contention is also the submissions made by Mr Lee SC and
Mr Chan SC (for Ms Lau) that in determining whether a LegCo
member-elect’s oath-taking accords with the requisite solemnity,
the court should give a wide margin of deference to the relevant
President’s decision. Mr Lee’s reasons for the submission
are the same as his above submissions, that is that the LegCo’s
Practices should constitute the benchmark for measuring the requisite
solemnity. I have already rejected the contention above.
48. Mr
Chan makes a separate submission in support of this argument.
Senior counsel says, given the historical development of the taking
of oath to swear allegiance in England, the taking of oaths is
closely related to political suppression against non-Christians.
Historically, it always served a political function and is always
coercive in nature. The content of the oath, and its
consequential pledge or allegiance, could change according to the
prevailing political climate. He therefore submits that taking
an oath is a political act and the purpose of an oath is not about
what one believes. The purpose of the oath lies in the act of
taking the oath itself, and it is an act to accept the consequences
of a breach of the pledge. It is merely a ritual and a
formality, imposed by law, the completion of which formality being a
means to enforce what is prescribed in the pledge.
49. As
such, Mr Chan submits that the determination of whether there is
“decline” or “neglect” by an oath taker to take the LegCo
Oath is a highly political decision, and in light of its political
context which the court does not have the expertise to judge, the
court should afford “great weight” to the decision of the oath
administrator in determining whether there is “decline” or
“neglect” to take an oath. Although as a matter of law, the
court is the final arbiter of what constitutes “decline” or
“neglect”, in applying the law, Mr Chan says the court has to
duly give such great weight to the decision of the politicians.
50. Mr
Dykes SC (for Mr Law) has also addressed the court in his skeleton in
detail the history of the development of oath taking in England.
Based on that, leading counsel similarly submits that the oath taking
requirement in the Hong Kong Special Administrative Region is and
should be regarded as a mere formality, and as along as the oath
taker has complied with the form by reading out all the words of the
oath, irrespective of his or her belief in the oath that has been
taken, he or she has validly taken the oath.
52. Paragraph
3 of the Interpretation provides expressly that “[t]he oath
taker must sincerely believe in and
strictly abide by the relevant oath prescribed by law. An oath
taker who makes a false oath, or, who, after taking the
oath, engages in conduct in breach of the oath, shall bear legal
responsibility in accordance with the law” (emphasis added).
The italicized words show clearly that it is our constitutional
requirement that the oath taker when taking oath must
sincerely and truly believe in it. I therefore cannot accept
that the taking of the oath as required in our law under BL104 is
only to fulfil a ritual or formality as contended. It is also
not only to provide a legal basis to check and punish future breaches
by the oath taker of the promise as effectively submitted by Mr Chan
and Mr Dykes. It is a constitutional legal requirement that the
oath taker in taking the oath must also sincerely and truly believe
in the pledges under the oath that he or she is taking. In the
premises, in determining whether an oath taker has validly taken the
oath, the court is entitled to and should look into, among others,
the question (when challenged) as to whether the oath taker has
manifested objectively that he or she sincerely and
truly believes in the oath at the time when he or she takes it.
53. This
is in any event also consistent with the common law position that the
law requires the oath taker to genuinely believe in the pledges of
the oath as this court has observed at paragraphs 30 - 32
in the CFI Judgment with reference to the common law authorities
therein.
54. Further,
I also reject Mr Chan’s submission that the determination of
whether an oath taker has “declined” or “neglected” to take
the oath is a “highly political” decision, and hence the court
should invariably give “great weight” to the oath administrator’s
view and reasons on this.
55. The
question as to what should be the appropriate form and contents of
the oath and the allegiances enshrined therein that a State and
Parliament seek to impose upon the high public office bearers through
the constitution may well be a political one. But once a
decision has been made by the State and Parliament on that, and the
chosen form and content of the requisite oath have been enacted in
the constitution and the relevant statutes to become part of the law
of the land, it is solely a question of law whether
an oath taken is compliant with the requirements prescribed by the
constitution and the relevant statutes. The question of legal
compliance is and should not bea political one.
56. In
the present context, the issues as to whether a member‑elect’s
oath taking is compliant with the legal requirements under BL104
(read together with the Interpretation) and the relevant provision of
the ODO (underlying and reflecting the constitutional requirements)
are strictly legal questions that the court has to determine.
Politics or political arguments do not and should not feature at all
in this determination. In this respect, it is pertinent to note
that Lam VP has aptly warned against the involvement of politics or
political arguments in this judicial process at paragraph 68 of the
CA Judgment as follows:
“68. As
I have said, in adjudicating on these issues the courts only concern
themselves with legal questions, and the issues before us in these
appeals are whether the requirement in article 104
has been complied with and if not, what are the consequences. In our
deliberations, we address legal arguments advanced before us and
apply the law (including the Interpretation, which upon its
pronouncement becomes part of our laws) strictly as we find them.
It is for this very reason that the Chief Judge had to stop Mr Yu
when counsel at one stage unwittingly treaded beyond the proper scope
of legal arguments by quoting from Socrates on abuse of democracy. It
is important that we keep politics out of the judicial process.”
(emphasis added)
57. It
is therefore incorrect to say that the court in determining whether
there is “decline” or “neglect” by a member-elect to take the
oath in failing to comply with the legal requirements must in general
give a wide margin of deference and great weight to the President or
the Clerk’s decision in this respect. The extent of the
relevance, where appropriate, of the oath administrator’s decision
to the court’s determination of the question of the strict legal
compliance of a subject oath taking has already been addressed by the
learned Chief Judge in the CA Judgment at paragraphs 39 and 40 as
follows:
“39.
In the final analysis, what
is at stake is the compliance of a constitutional requirement of
great significance. In any given set of facts, this can admit of one
correct answer only. There
is no room for a court to simply sit back without correcting an
answer given by the oath administrator which the court considers to
be wrong, at the expense of the constitutional requirement. What is
in issue is squarely a judicial matter which the courts alone are
given the judicial power of the Special Administrative Region under
the Basic Law to determine.
What is involved is not an ordinary judicial review type of situation
where the court only conducts a Wednesbury unreasonableness
review. Rather,
there can be only one right answer when the issue of compliance with
the constitutional requirement is raised and nothing short of a full
merit review will suffice.
The court, according to the Basic Law, is the ordained organ to
determine the question.
40.
Of course, what I have said above does not prevent at all a court
from, when hearing a dispute on the validity of an oath taken or one
regarding whether the oath taker has declined or refused to take the
oath when duly requested to do so, receiving evidence from the oath
administrator on what his views are and the reasons for those
views, insofar as they are relevant and admissible, and
according them weight accordingly.” (emphasis added)
58. Thus,
the administrator’s views and reasons may form
part of the evidence (insofar as if they are relevant and admissible)
for the court to take into account in determining the question of
constitutional compliance of the subject oath taking. If and
when they are relevant and admissible in an individual case, as the
learned Chief Judge has pointed out, the court would then give such
appropriate weight as it thinks fit to those views and reasons.
What appropriate weight should be given would be dependent upon the
nature and basis of that view and reasons, if any, and must be
determined on a case by case basis. However, it is incorrect to
say that, as a matter of principle or by default, the administrator’s
views and reasons must be given “great weight” by the court as Mr
Chan submits. This is particularly so as the learned Chief
Judge has emphasized that when a question of an oath taking’s
constitutional compliance is involved, there can only be “one
correct answer” and the court has to be engaged in a full merits
review instead of conducting a Wednesbury unreasonableness
review.
59. Third,
Mr Lee contends that the requirements on oath taking constitute
restrictions on the member-elect’s constitutional rights (a) to
stand for election, take part in the conduct of public affairs under
Articles 26 and 39(2) of the BL (which provides the constitutional
basis to incorporate Article 25 of the International Covenant on
Civil and Political Rights (“ICCPR”) through Article 21 of the
Hong Kong Bill of Rights (“HKBOR”)); and (b) of freedom of
opinion and expression under Article 27 of the BL, and Article 16 of
the HKBOR (incorporating Article 19 of the ICCPR). For
convenience, I would refer these rights collectively as “the
Purported Rights”.
60. As
provided under Article 39(2) of the BL, these rights shall not be
restricted unless “prescribed by law”. Mr Lee argues that
the present requirements of oath taking are “so vague and
uncertain” that they fail to meet the “prescribed by law”
requirement.
61. Further,
Mr Lee says the restrictions in any event cannot be justified under
the four elements of the test of proportionality as now laid down
in Hysan Development Co Ltd v Town Planning Board [2016]
6 HKC 58 (CFA) at paragraph 54.
62. In
other words, Mr Lee contends that the oath taking requirement is
unconstitutional since, as a restriction of the Purported Rights, it
is not “prescribed by law” and in any event fails to meet the
proportionality test.
64. Mr
Lee’s submissions, put to its logical conclusion, amount to saying
that the court could declare BL104, which itself is a provision of
our constitution, to be “unconstitutional” if it does not meet
the “prescribed by law” and proportionality requirements.
65. BL104
by itself is part of the constitution. There is no question
that it can be said to be unconstitutional. This startling
proposition that a court can declare BL104, a constitutional
provision itself, to be “unconstitutional” simply cannot stand.
66. In
any event, the court should seek to construe all the constitutional
provisions within the BL to be consistent with each other. In this
respect, it is clear as a matter of construction that, the Purported
Rights, which are expressly provided not to be absolute, shall be
read to be subject to BL104.
68. Fourth,
Mr Lee argues that since a member-elect is in effect “penalised”
by being prevented from taking up the Office if it is found that he
has declined or neglected to take the LegCo Oath, the court must
apply the criminal standard of proof of beyond reasonable doubt to
find a member-elect has so declined or neglected to take the LegCo
Oath. This is particular so as, says Mr Lee, the “penalty”
is a very serious one when considered under the context that he or
she is elected by the electorate to represent them at the LegCo.
70. As
held by the Court of Appeal in the CA Judgment, taking the LegCo Oath
is a constitutional prerequisite or precondition for
a member-elect to assume the Office as provided under BL104.
Further, it is clear law that a member-elect could not be so
qualified to take up the Office if he or she declines or neglects to
take the LegCo Oath as provided under the Interpretation and section
21 of the ODO. It is thus clear that the valid assumption of
the Office after a successful election is still subject to validly
taking the LegCo Oath. Persons running for the election must be
taken to know this precondition in law. In the premises, it is
incorrect to characterise, as Mr Lee seeks to do, the consequence
that a member‑elect would not be qualified to assume the Office
if it is found that he has declined or neglected to take the LegCo
Oath as a “penalty”. It is not.
71. I
would therefore reject the contention that the court should apply a
beyond reasonable doubt standard of proof in determining on the
evidence as to whether any of the Defendants declined or neglected to
take the LegCo Oath in the circumstances of the present cases.
72. The
court would adopt the civil standard of proof of balance of
probabilities in determining whether the Defendants declined or
neglected to take the LegCo. However, in doing so, I accept the
submissions by the leading counsel for Mr Law, Ms Lau and Mr Yiu
that, in light of the importance of the question, it requires cogent
evidence to find on the balance of probabilities that objectively the
Defendants did decline or neglect to take the LegCo Oath.
73. Bearing
all the above principles in mind, I would now look at each of the
Defendants case in turn to determine whether, viewed objectively, he
or she declined or neglected to take the LegCo Oath.
C.
WHETHER EACH OF THE DEFENDANTS DECLINED OR NEGLECTED TO
TAKE THE LEGCO OATH ON 12 OCTOBER 2016
C1.
The undisputed underlying facts before 12 October 2016
74. It
is not in dispute that the Clerk had reminded each of the Defendants
(as with all the other members-elect) to take the LegCo Oath on 12
October 2016 by various circulars as follows.
75. On
20 September 2016, the Clerk issued a circular[5] to
all members-elect regarding the taking of the LegCo Oath. The
circular reminded members-elect that members of the LegCo must swear
to uphold the BL and swear allegiance to the Hong Kong Special
Administrative Region of the People’s Republic of China under
BL104. It further informed all members‑elect that the first
meeting of the Sixth LegCo would be held on 12 October 2016 and that
under Rule 12(1) of the LegCo’s Rules of Procedure, members-elect
should take the oath at the first meeting of a term of the LegCo.
It also reminded members‑elect that under Rule 1 of the Rules
of Procedure, no member shall attend or vote therein until he or she
has made an oath in accordance with the provisions of the ODO.
Members-elect were invited to indicate his or her choice among the
three versions of the LegCo Oath, drawn up in accordance with
sections 5 and 7 of and Part IV of Schedule 2 to the ODO.
76. On
7 October 2016, the Clerk issued another circular[6] to
members, concerning the first meeting of the Sixth LegCo that would
be held on 12 October 2016, explaining to members the detailed
procedures and arrangements of oath-taking at the start of the
meeting, as well as the form and manner of oath-taking. In “the
points to note for oath-taking by Members”, enclosed to this
circular, members were reminded to take the oath in the form and
manner prescribed by the ODO, which include reading out all the words
of the LegCo Oath prescribed by law.
77. On
11 October 2016, the Clerk issued the third circular[7] to
all members of the LegCo. In this circular, members were once
again reminded to attend the 1st LegCo
meeting on 12 October 2016 on time and to “take the oath” in
accordance with the order as set out in the Agenda for the meeting.
It also reiterated the requirement under BL104 and that the LegCo
must be in the form set out in Schedule 2 to the ODO, and members
must say the words of the oath therein. The Government also
published a statement on 11 October 2016 on oath‑taking by
members-elect of the LegCo as this is a matter of great
constitutional importance.
78. The
taking of the LegCo Oath by members of the Sixth LegCo was held on 12
October 2016. The entire oath-taking proceeding on that day was
captured as Webcast recording which is available on the LegCo
website.
C2.
The oath taking on 12 October 2016 by Mr Law
79. The
objective and undisputed evidence shows that Mr Law took the LegCo
Oath in the following way and manner on 12 October 2016.
80. Mr
Law made the following statement (“the Opening Statement”) upon
being requested by the Clerk to take the LegCo Oath:
“誓詞，英文係‘Affirmation’，佢拉丁文原意係使其更堅定更堅強。宣誓就係一個莊嚴嘅儀式，要我地向香港人承諾未來要知行合一，捍衛香港人嘅權利。但今日呢個神聖嘅儀式，已經淪為政權嘅工具，強行令民意代表屈服喺制度同埋極權之下。You
can chain me, you can torture me, you can even destroy this body, but
you will never imprison my mind.
我今日要完成必要嘅程序，但係唔代表我會屈服喺極權之下。香港市民永遠都係我地服務同埋團結嘅對象，我係絕對唔會效忠於殘殺人民嘅政權，我一定會堅持原則，用良知守護香港。希望在於人民，改變始於抗爭。”[8]
81. Around
three seconds later, Mr Law purported to take the LegCo Oath,
adopting an apparent and distinct rising tone whenever he spoke the
word “國”:
“本人羅冠聰，謹以至誠，據實聲明及確認，本人就任中華人民共和國香港特別行政區立法會議員，定當擁護《中華人民共和國香港特別行政區基本法》，效忠中華人民共和國香港特別行政區，盡忠職守，遵守法律，廉潔奉公，為香港特別行政區服務。”
(emphasis added)
82. Around
one to two seconds later, Mr Law shouted “權力歸於人民，暴政必亡，民主自決，抗爭到底。”
(“the
Closing Statement”). The Clerk remained silent throughout the
purported oath-taking of Mr Law.
83. In
the President’s Ruling made on 18 October 2016, the President
concluded that the LegCo Oath as taken by Mr Law was valid. The
President explained at paragraph 11:
“11.
Hon Nathan LAW Kwun-chung subscribed an affirmation in Cantonese when
taking the LegCo Oath. I notice that Mr LAW used a different tone
when pronouncing ‘China’ in his affirmation. Based on the manner
that he took his oath, objectively assessed, and taking into account
that he read out all the words prescribed by the [ODO] during his
oath-taking, I am prepared to accept that the manner in which he
subscribed his affirmation was not inconsistent with the [ODO].”
84. The
Plaintiffs now submit that, objectively assessed, in purportedly
taking the LegCo Oath in the above way and manner, Mr Law did not
comply with the legal requirement to faithfully or truthfully commit
himself to upholding and abiding the obligations set out in the LegCo
Oath.
86. Objectively
understood, Mr Law manifested to a reasonable person at the time of
the oath taking that he was only forced by the system and the
totalitarian authority to take the LegCo Oath, something which had
become a “political tool” used by the political regime:
(1) It is important to note that Mr Law made the Opening Statement after he had already been requested by the Clerk to take the LegCo Oath. From that point onwards, he had already commenced the process of taking the LegCo Oath. What therefore followed after that request must be objectively intended to be acts referable to the taking of the LegCo Oath. The court therefore is entitled to look at the Opening Statement in determining whether Mr Law had complied with the legal requirements in taking the LegCo Oath.
(2) In pronouncing in “the Opening Statement” that “但今日呢個神聖嘅儀式，已經淪為政權嘅工具，強行令民意代表屈服喺制度同埋極權之下”, Mr Law must be objectively referring to the requirement of taking the LegCo Oath to have already been rendered (“淪為”) as a “political tool” (“政權嘅工具”), as the taking of the LegCo Oath was the very ceremony he was about to go through after making the Opening Statement. Moreover, the plain words “強行令民意代表屈服喺制度同埋極權之下” also conveyed the meaning that the requirement to take the LegCo Oath was something he as an elected representative was “forced” to do under the system and totalitarian authority.
(3) Objectively understood, in the context of taking the LegCo Oath, the “system” he referred to could only be understood by a reasonable person to mean the legal requirements provided under BL104 and the ODO in requiring him to take the LegCo Oath. The “authority” he referred to therefore could also only mean either the Hong Kong Special Administrative Region or the People’s Republic of China, or both, since the oath taking requirement is stipulated under the BL which is enacted by the National People’s Congress of the People’s Republic of China, and that he is required to pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and to swear to uphold the BL. In other words, he regarded the requirement to take the LegCo Oath was only a political tool employed by the People’s Republic of China and the Hong Kong Special Administrative Region of the People’s Republic of China through the legal requirements to force him to make those pledges.
(4) When these were followed by the sentences “You can chain me, you can torture me, you can even destroy this body, but you will never imprison my mind 我今日要完成必要嘅程序，但係唔代表我會屈服喺極權之下”, objectively he was also clearly expressing the meaning that he was only to go through the motion in taking the LegCo Oath, and that exercise itself did not represent that he would subjugate himself to the totalitarian authority.
(5) When all these are read as a whole together with the LegCo Oath, which he read out following the Opening Statement, it is objectively clear that Mr Law manifested to a reasonable person that he regarded the taking of the LegCo Oath as an involuntary and mechanical exercise which he was forced to go through, and he did not truthfully and sincerely believe in and commit himself to the pledges enshrined in that oath.
(6) Moreover, when the adoption of a rising intonation by Mr Law whenever he read only the word “國” in all the three references to the phrase “the Hong Kong Special Administrative Region of the People’s Republic of China” (中華人民共和國香港特別行政區) was understood together with his references to “totalitarian authority” which he would not “subjugate” to in the Opening Statement, Mr Law was also objectively conveying the message that he did not respect or recognise the legitimacy of the People’s Republic of China as the sovereign of the Hong Kong Special Administrative Region. It must be noted that the words “中華人民共和國香港特別行政區” constitutes one complete phrase and meaning in the LegCo Oath, referring to the special constitutional arrangement that Hong Kong is a special administrative region of the People’s Republic of China. In targeting and focusing only on the word “國” in this phrase by adopting a rising intonation, Mr Law was objectively expressing a doubt on or disrespect of the status of the People’s Republic of China as Hong Kong’s legitimate sovereign country.
(7) As this court has said in the CFI Judgment at paragraphs 43 ‑ 44, the recognition of the People’s Republic of China as Hong Kong’s sovereign is fundamental to the One Country, Two Systems principle, which in turn is fundamental to the enactment of the BL and the underlying constitutional model in establishing the Hong Kong Special Administrative Region. Refusing to recognise the legitimacy of the People’s Republic of China as the Hong Kong Special Administrative Region’s sovereign is inconsistent and contrary to swearing allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and to uphold the BL. In the premises, objectively viewed, Mr Law could not and did not manifest a genuine and truthful intention to commit to and abide by these obligations in the LegCo Oath when purportedly taking it.
(8) There is also no question that he intended to make the Opening Statement before reading the LegCo Oath, and adopted a rising tone whenever he read the word “國” in the oath. In the premises, for all the above reasons, it is clear to me that Mr Law declined or neglected to take the LegCo Oath in substance as he did not faithfully and sincerely commit to and abide by the obligations provided in the oath. On this basis alone, he should be and has been so disqualified in law from assuming the Office since 12 October 2016.
87. Further,
I agree with Mr Mok SC for the Plaintiffs that by making the Opening
Statement and the Closing Statement in the way as Mr Law did, he also
failed to comply with the Exact Form and Content Requirement for
taking the LegCo Oath. I will explain why.
88. As
held by Hartmann J in Leung Kwok Hung v the Legislative
Council Secretariat, supra, it is a legal requirement
that the LegCo member-elect in taking the LegCo Oath must,
objectively viewed, comply with the exact form and substance of the
LegCo Oath. Hartmann J emphasized that the law “allows only
for limited differences as to how a person wishes to take the oath,
it does not allow for any real difference in the form – and thereby
the substance – of the oath itself.” In this respect, the
learned judge also made it clear that altering the form of the LegCo
Oath also alters the substance of the oath itself. See
paragraph 35.
89. In
that case, Mr Leung sought a declaration from the court in an
intended judicial review that it was lawful for him to take the LegCo
Oath in the following amended form:
“I,
Leung Kwok-hung, solemnly, sincerely, and truly declare and affirm
that I swear by
the people of China and the residents of Hong Kong, as well as the
principles of democracy, justice, human rights and freedom that,
being a member of the Legislative Council of the Hong Kong Special
Administrative Region of the People’s Republic of China, I will
uphold the Basic Law of the Hong Kong Special Administrative Region
etc.” (emphasis added
to highlight the proposed amendments to the LegCo Oath)
90. Although
in that amended form, Mr Leung would still purport to swear to uphold
the BL and to pledge allegiance to the Hong Kong Special
Administrative Region of the People’s Republic of China as required
under BL104, Hartmann J (in refusing leave) still concluded that
taking the oath in the proposed amended form would offend BL104 and
therefore be unlawful as it did not comply with the exact form and
substance requirement. He explained this at paragraphs 36, 37
and 40 as follows:
“36. In my judgment, the amended oath that the applicant wishes to take goes further than merely defining how he wishes to take his oath, it alters the form and thereby the substance of the oath itself.
37. The Ordinance does not permit any person, religious or not, to swear by a list of principles : religious, political, economic, ecological or philosophical. But viewed objectively, in my opinion, the applicant in the present case wishes to swear by such a list of principles. That they may be laudible principles, that they may perhaps be universal truths, does not alter the fact that they are a list of principles and no such list of whatever kind is permitted by the Ordinance.
…
40. In summary, I have concluded that the applicant has not been able to demonstrate any form of prima facie arguable case that his intended form of oath may be consistent with art.104 of the Basic Law. In my judgment, it is manifest that the oath or affirmation he seeks to take when he assumes office, will offend art.104 and will therefore be unlawful and of no effect. In the circumstances, I am satisfied that the applicant has not demonstrated a prima facie arguable case for the declaration that he seeks.” (emphasis added)
91. In
the premises, as a matter of law, an oath taker would be regarded as
having failed to comply with the Exact Form and Content Requirement
if he seeks to swear by a list of principles, beliefs or truths
(whether religious, political, economic, ecological or philosophical,
and whether they are controversial or not) not provided in the
prescribed form. By the same token, it must similarly (if
not a fortiori) be impermissible in law for an oath
taker to incorporate or convey in the oath additional worded messages
other than the oath itself, whether or not these messages are
religious, political, economic, ecological or philosophical, and
whether they are controversial or not.
92. This
legal position is also consistent with and supported by paragraph 2
of the Interpretation as I have explained at paragraphs 29 and 30
above.
93. Bearing
this in mind, when the fact that Mr Law made the Opening and Closing
Statements respectively right before and after his reading of the
LegCo Oath is viewed together with the contents of the Statements as
a whole, objectively, it must appear to a reasonable person that Mr
Law intended to convey the worded messages in the Opening and Closing
Statements as part of the oath taking itself. In the premises,
objectively, he sought to incorporate and convey additional worded
messages in the oath taking. This offends the Exact Form and
Content Requirement and therefore also BL104.
94. Mr
Dykes SC (leading Mr Tam) have made various submissions to contend
that Mr Law had properly complied with the legal requirements in
taking the LegCo Oath. I will deal with these arguments in
turn.
95. First,
Mr Dykes submits that, by reference to the history of the development
of oath taking in England, the taking of the LegCo Oath is a mere
formality and the court should and could not inquire into the
question of whether the oath taker genuinely and faithfully believe
in the obligations pledged in the oath. Hence, Mr Law should be
regarded as having complied with the legal requirements of taking the
LegCo Oath as long as he has accurately and completely read out all
the words of the oath as a matter of form, which Mr Dykes submits he
did.
96. For
the reasons I have explained at paragraphs 52 - 53 above, I
reject this contention. Both as a matter of express requirement
set out in the Interpretation, and as a matter of common law, it is a
legal requirement in Hong Kong that the oath taker must take the oath
prescribed under BL104 and the relevant provisions of the ODO both in
form and in substance, and that the oath taker must
faithfully and sincerely believe in and commit himself to the
obligations provided in the oath at the time when taking it.
97. Second,
linked with the above contentions, Mr Dykes appears also to submit
that, given that the historical purpose of taking an oath of
allegiance in England is to avert acts of sedition and subversion, as
long as Mr Law is not advocating independence of Hong Kong, there
would be no infringement of the allegiance obligations in the LegCo
Oath. Objectively the court cannot and should not conclude that
he did not faithfully and sincerely believe in and commit to those
obligations as Mr Law, says Mr Dykes, does not advocate Hong Kong
independence.
98. I
must also reject this submission. The law requires, among
others, the oath taker to faithfully and sincerely believe in and
commit himself to the allegiance obligations in the LegCo Oath.
This is a question that would be assessed objectively by
looking at all the relevant matters pertaining to it. Someone
who advocates and supports independence of Hong Kong would obviously
be regarded as not having a genuine and sincere intention to commit
himself to those allegiances for the reasons already explained in the
CFI and CA Judgments. However, as a matter of general
principle, this cannot be the only basis or circumstances where the
court could conclude that the oath taker has failed to show
objectively the requisite faithful and sincere belief and
commitment. It must be open to the court to find the same when
appropriate in other circumstances.
99. Third,
Mr Law has filed an affirmation in this application seeking to
explain what he now said to be the real meaning and intention behind
making the Opening and Closing Statements, and in reading out the
LegCo Oath in the way as he did. In gist, he explained that:
(1) The words and sentences he used in the Opening Statement were not intended to criticize either the Hong Kong Special Administrative Region Government or the People’s Republic of China. He was only expressing his concerns about possibilities in the future. All that he intended to say was that, looking to the future, he was concerned that the oath taking ceremony and the subsequent possibility of an allegation of oath-breaking “could be used” by the authority as a tool to achieve political purpose. Further, when he used the words “我係絕對唔會效忠於殘殺人民嘅政權”, he was only expressing a message that, looking forward to the future (but not something of the present), he would not swear allegiance to a “regime” if she kills her own people. In particular, when he used the words “政權”, he was referring to a regime but not a country. He reiterated that it was important to distinguish between a regime and country, since swearing allegiance was to a country but not a regime. He therefore was not expressing any criticism or disrespect of the People’s Republic of China as a country or that he would not swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China. He emphasized in the affirmation that he has “absolutely no intention to violently overthrow the political institutions of the HKSAR and PRC”. He also denied that he “was not sincere and did not genuinely pledge allegiance to the HKSAR or the PRC” as now alleged by the Plaintiffs. See paragraphs 29 - 37 of Mr Law’s affirmation.
(2) Further, the adoption of a rising tone in reading out the word “國” was only to show his “love” to the People’s Republic of China as a country, while also at the same time to “criticise the current administration of the Communist Party”. This was, he said, “different from being disrespectful or not bearing allegiance to the Basic Law or ‘One Country, Two Systems’”. He emphasized that as a popularly elected politician, he had “the responsibility to express [his] political views.” There was again therefore no disrespect or refusal to recognise the People’s Republic of China as a country. See paragraphs 38 - 44 of Mr Law’s affirmation.
(3) The words used in the Closing Statement were not to advocate independence of Hong Kong. In fact, he emphasized that he and his party (Demosistō) do not advocate or support the independence of Hong Kong. They only advocate the right of self-determination on matters which are within Hong Kong’s own autonomy as prescribed under the One Country, Two Systems principle. See: paragraphs 45 - 55 of Mr Law’s affirmation.
100. Based
on these self-professed explanations, Mr Law therefore says he did
intend to commit to and abide by the obligations pledged in the LegCo
Oath. This is particularly so, Mr Law emphasized, as there were
no good reasons why he would intentionally flout the requirements of
taking the LegCo Oath and risk giving away the Office after spending
substantial effort and expenditures to run for and win the election
in the first place.
102. As
the Court of Appeal has emphasized in the CA Judgment, the court
adopts an objective assessment of the evidence
relevant to the oath taking to determine whether the oath taken is
compliant with the legal requirements. As I mentioned above, in
adopting the objective assessment, the court is to determine what a
reasonable person would objectively understand the
meaning from the words, conducts and manner adopted by the oath taker
in taking the oath. In that exercise, the court must also apply
a degree of common sense. However, in the objective assessment,
the court is not concerned with the subjective
intention of the oath taker in adopting the subject words, conducts
and manner or the subjective meaning the oath taker seeks to accord
to those words, conducts and manner. Hence, evidence on such
subjective intention, thought process or meaning are irrelevant to
the object exercise.
103. Mr
Law’s subjective explanations now set out in his affirmation and
summarized above are in nature matters relating to his subjective
thought process, intention and meaning in adopting the complained
conducts in taking the LegCo Oath. As a matter of law, they are
not relevant to the court’s objective assessment as to whether the
way and manner in which Mr Law purported to take the LegCo Oath
complied with the legal requirements.
104. Further
and in any event, even if the court was to take into account these
explanations, I do not find them to support Mr Law’s contentions
that he had complied with the oath taking legal requirements.
105. First
of all, these subjective explanations simply cannot be accepted to
displace, in the objective assessment, the clear meaning of the
words, conducts and manner adopted by Mr Law in taking the LegCo
Oath. This is so as they are clearly inconsistent with those
objective meanings found by the court above:
(1) The explanations are highly convoluted and simply not borne out by the plain words of the Opening Statement.
(2) Further, the words used in the Opening Statement do not in any way denote a reference to future possibilities only as now alleged by Mr Law. In particular, the use of the words “今日” twice in the Opening Statement clearly shows that Mr Law was addressing his involuntariness in going through the oath taking exercise on that day, and that expressed involuntariness would not bear any real meaning unless he was also referring to his present criticisms of the system and authority.
(3) As such, the authority he was referring to can only be understood to be a reference to the present authority which has imposed the requirements of the oath taking, something which Mr Law expressed in the Opening Statement his involuntariness in going through it. Properly understood, as explained above, this could only be a reference to the Hong Kong Special Administrative Region of the People’s Republic of China, or the People’s Republic of China, or both.
(4) Further, the word “國” used in the phrase “中華人民共和國香港特別行政區” in the context of the LegCo Oath can only mean the People’s Republic of China as a country. Hence, it is not open (let alone reasonably open) to an objective person to understand the word when read out could be capable of being dissected (as Mr Law now alleges to be the case in adopting a rising tone only on this word) to have a separate meaning of emphasizing the love for the People’s Republic of China as a country but a criticism of her present administration of the Communist Party.
106. Further
and in any event, in the subjective explanations, Mr Law confirms
that he seeks to convey other “political messages” in the
oath-taking itself. This would clearly violate the Exact Form and
Content Requirement in taking the LegCo Oath.
108. Fourth,
Mr Law says what he did in making the Opening and Closing Statements,
and in adopting a rising tone in reading out the word “國”
when
taking the oath is consistent with, or no different from in nature
with many other past practices adopted by various LegCo members-elect
in taking the LegCo Oath in previous LegCo terms. All these
previous oath takings had been accepted by the Clerk or the President
and had not been challenged by the CE or SJ. In fact, it was
only after he had researched and studied all these past practices
(and knowing that they had not been declared invalid) that he adopted
the manner and way in which he took the LegCo Oath. This, he
says, further shows that he never had an intention to flout the legal
requirements in taking the LegCo Oath. He says in the premises,
even if as a matter of law the court finds him not to have complied
with the legal requirements in taking the LegCo Oath, he did not
intend to so flout the law, and therefore he did not “decline” or
“neglect” to take the LegCo Oath. He should therefore not
be disqualified from taking the Office but be permitted to retake the
LegCo Oath again.
110. Given
the objective test, in determining whether an oath taker has in law
declined or neglected to take the oath, it would be sufficient to
find that (a) the oath taker intended to adopt the very words,
conducts and manner which are under challenge to take the oath; and
(b) the said words, manner and way on an objective construction are
found to be not in compliance with the oath taking legal
requirements. It is not a necessary element for the court to be
satisfied that the oath taker has a specific intent to flout or not
to comply with the very legal requirements. Of course, if it
can be established on an objective assessment that the oath taker
indeed intended not to comply with those specific legal requirements
in taking the oath, it would be a fortiori that he
or she has declined or neglected to take the oath.
111. In
any event, the fact that an oath administrator (ie, the Clerk or the
President) on other occasions had not taken issues on certain
allegedly similar manner and way in which the LegCo Oath was taken
could not support Mr Law’s contentions that what he did in the
present case should also similarly be regarded as having complied
with the oath taking’s constitutional legal requirements. The
court is not bound by any previous conclusions made by the oath
administrator. As emphasized by the Court of Appeal in the CA
Judgment, the court is the final arbiter on the question of whether
an oath taker has properly complied with constitutional requirements
for the oath taking and whether he or she has declined or neglected
to take the oath. In any event, every case must be decided on
its own facts.
112. In
the premises, based on the indisputable facts in the present case,
the court is satisfied that, as a matter of law, objectively Mr Law
declined or neglected to take the LegCo Oath on 12 October 2016 as:
(1) It is clear that he intended to adopt the very words, conducts and manner in which he purported to take the LegCo Oath by (a) making the Opening Statement; (b) adopting a rising tone in reading out the word “國” in all three references to the phrase “中華人民共和國香港特別行政區” in the LegCo Oath; and (c) making the Closing Statement.
(2) The said words, conducts and manner adopted by Mr Law in purporting to take the LegCo Oath, on an objective construction, do not satisfy the Exact Form and Content Requirement and the Substantive Belief Requirement as explained above.
113. He
has therefore been disqualified in law from assuming or entering the
Office since 12 October 2016. The President therefore erred in
law in his decision in ruling that Mr Law has validly taken the LegCo
Oath, and that decision should be quashed.
114. Further,
it follows that since 12 October 2016, Mr Law has claimed to be
entitled to act as a LegCo member when he is not so entitled.
The court should also grant the declarations and injunction under
section 73 of the Legislative Council Ordinance (Cap 542) (“LCO”)
as sought by the Plaintiffs under HCMP 3379/2016.
C3.
The oath taking on 12 October 2016 by Mr Leung
115. The
objective and undisputed evidence shows that Mr Leung took the LegCo
Oath in the following way and manner on 12 October 2016.
116. According
to the video footage, after the Clerk called Mr Leung’s name
requesting Mr Leung to walk up to the table at the centre of the
chamber to take the LegCo Oath in accordance with the predetermined
order, Mr Leung, who was wearing a black t-shirt with the words
“公民抗命”[9] printed
thereon, walked down the hallway to the table, carrying an opened
yellow umbrella (with many words written thereon, including
“結束一黨專政”[10])
in his right hand and a paper board showing the words
“人大831決議”[11] (with
a cross on it) in his left hand and shouted in Cantonese
“雨傘運動！不屈不撓！公民抗命！無畏無懼！人民自主自決！無須中共批准！我要雙普選！梁振英下台！”.[12]
117. When
Mr Leung reached the oath-taking table, he put the paper board on the
table, continued holding the yellow umbrella in his right hand and
said the following in Cantonese (“the Statement”):
118. Mr
Leung then paused for around two seconds and started reading words of
the LegCo Oath in Cantonese with a much louder voice and in a
truncated manner as follows (with the opened yellow umbrella in his
right hand):
“本人
(pause)
梁國雄
(pause)，謹以至誠
(pause)，據實聲明(pause)
及確認
(pause)，本人
(pause)
就任
(pause)
中華人民(pause)
共和國
(pause)
香港
(pause)
特別
(pause)
行政區(pause)
立法會議員
(pause)，定當擁護
(pause)《中華人民共和國[said
hurriedly] (pause)
香港
(pause)
特別行政區(pause)
基本法》(pause)，效忠
(pause)
中華人民
(pause)
共和國
(pause)
香港
(pause)
特別行政區
(pause)，盡忠職守(pause)，遵
(pause)
守法律[in
lower voice] (pause)，廉潔奉公
(pause)，為香港
(pause) [in
louder voice]特別行政區(pause)
服務。”[14]
119. Around
one second after he had read out the words of the LegCo Oath, Mr
Leung (a) shouted “撤銷人大831決議！我要雙普選！”;[15](b)
put down the yellow umbrella on the table, opened with the top of the
umbrella pointing away from him; (c) tore a piece of paper with the
words “人大831決議”[16] (without
a cross on it) into pieces while shouting
“撤銷人大831決議！撤銷人大831決議！我要雙普選！人民自主自決！無須中共批准！”;[17] (d)
threw the pieces of paper away towards the ceiling; and (e) left
where he had been standing with his other props.
120. The
Clerk did not say anything about Mr Leung’s purported oath-taking
immediately following his departure and thereafter. As such,
the Clerk effectively regarded the oath purportedly taken by Mr Leung
on 12 October 2016 as valid.
121. Mr
Mok first submits that the way in which Mr Leung took the LegCo Oath
through the means of conduct, words and paraphernalia as described
above shows clearly and objectively that he did not take the oath in
the requisite solemn and sincere manner. Mr Leung therefore
failed to comply with the Solemnity Requirement and the LegCo Oath
purportedly taken by him is therefore unlawful.
123. As
I have explained above, under the Solemnity Requirement, as a matter
of law, an oath maker must take the LegCo Oath in a
solemn and sincere manner which is objectively consistent with and
commensurate with the constitutional importance of the oath taking
ceremony and procedure, and the seriousness of the pledges of
allegiance enshrined in the oath.
124. Moreover,
given the fundamental constitutional importance of the requirement to
take the LegCo Oath, and the utmost seriousness expected of the oath
taker in making the constitutionally required pledges in the oath,
the objective solemnness and sincerity required of in the procedure
should be such that the oath taker must take the oath in such a
formal and dignified manner that demonstrate to a reasonable person
the oath taker’s high degree of respect and seriousness given to
the oath taking procedure and the oath itself. This is also to
demonstrate to the public the oath taker’s sincere and substantive
belief in pledging his allegiance as required by the constitution.
125. In
my view, the manner in which Mr Leung took the oath goes well outside
an objective reasonable range of such requisite solemnity and
sincerity:
(1) The ceremony and procedure of the oath taking is to serve only one purpose, that is for the oath taker to comply with the constitutional requirements to take the oath in the form and substance as prescribed and required by BL104 and the ODO. Hence, the ceremony and procedure demands a solemnity and sincerity that underline this only purpose.
(2) However, the holding of an umbrella, in particular with it opened, in the oath taking ceremony clearly simply does not accord in any reasonable way with the importance and seriousness of the taking of an oath as the ceremony’s only purpose.
(3) Similarly, the chanting of slogans and the tearing of the paper with the message on it are also acts and conducts which were totally unrelated to the taking of the oath itself.
(4) Clearly in my view, these theatrical acts viewed objectively had rendered the occasion without the requisite dignity and respect that was consistent with the constitutional importance and seriousness of the oath taking exercise.
(5) Further, viewed against the above theatrical conducts, the Statement (with the words “係好莊嚴架”) uttered by Mr Leung just before he purportedly took the LegCo Oath was, as submitted by the Plaintiffs, plainly a sarcastic remark as objectively appeared to a reasonable person suggesting precisely the opposite.
126. In
the premises, on any objective view, the above acts and conducts of
Mr Leung, whether viewed independently or collectively, show that Mr
Leung did not take the LegCo Oath with the requisite solemnity and
sincerity as required by the law. He therefore failed to
satisfy the Solemnity Requirement.
127. Moreover,
Mr Leung’s chanted slogans were all carried out after he had been
requested by the Clerk to take the LegCo Oath, and close to and after
the reading of the LegCo Oath. In the circumstances, viewed
objectively, I also agree with Mr Mok that it is clear that Mr Leung
also sought to incorporate as part of the oath taking itself
additional worded messages through his chanted slogans. For the
reasons I have set out at paragraphs 91 and 92 above, he also
therefore failed to comply with the Exact Form and Content
Requirement. The oath taking is unlawful and invalid.
128. Again,
there is no doubt that he intended to adopt and carry out those acts
and conducts, which objectively viewed did not comply with the
Solemnity Requirement and the Exact Form and Content Requirement.
Mr Leung therefore declined or neglected to take the LegCo Oath when
requested to do so on 12 October 2016. He should since 12
October 2016 be disqualified in law from assuming the Office, and
there is no question of retaking the oath.
129. Mr
Leung has raised a number of contentions as to why he should be
regarded in law to have complied with the constitutional legal
requirements in taking the LegCo Oath, or alternatively, he should be
allowed to retake the oath. I would look at them in turn as
follows.
130. First,
Mr Lee SC (for Mr Leung) submits that there is no requirement in
law prescribing an oath taker to take the LegCo Oath in a
solemn manner. There is nothing in this. I have dealt
with and rejected these submissions at paragraphs 39 - 41
above.
131. Second,
Mr Lee contends that even if it is necessary in law to take the LegCo
Oath solemnly, Mr Leung’s conducts and acts in the present case are
entirely consistent with the LegCo Practices and similar conducts and
acts adopted by Mr Leung himself and other LegCo members-elect in
previous oath takings, which all had been in the past accepted to be
valid by the Clerk or the President. The court should take
these into account to conclude that Mr Leung’s conducts in the
present case fall within the acceptable range of solemnity required
for taking the LegCo Oath.
133. Third,
Mr Leung (like Mr Law) also argues that he had no subjective
intention in flouting the legal requirements for taking the LegCo
Oath, as he was under the impression that what he did would be
acceptable by reason of the past practices. He therefore did
not intentionally breach the legal requirements for validly taking
the oath, and should be allowed to re-take the oath even if the court
finds that he did not comply with the legal requirements in taking
the LegCo Oath on 12 October 2016.
134. For
the same reasons I have explained at paragraph 110 ‑ 111
above, I cannot accept this argument.
135. Fourth,
Mr Lee SC submits that, given the significant consequence of
disqualification in being found to have failed to comply with the
legal requirements for oath taking, as a matter of law, there should
be a high degree of fairness in this context which requires that:
(1) Before the oath-taking ceremony is held, members-elect should be informed of what can and cannot be done by clear guidelines or at least by some illustrative examples.
(2) In some occasions, the Clerk or the President may have a lingering doubt on whether a legislature was sincere and solemn when taking the LegCo Oath. For instance, the Clerk or the President may not be sure whether the deviation from the statutory wordings of the LegCo Oath was deliberate or inadvertent. In these circumstances, the Clerk or the President should inform the member-elect what his concerns are and request the member-elect to address them. The member-elect should then be requested to read the LegCo Oath again in light of the concerns of the Clerk or the President so that he can confirm whether the member-elect is willing to take the LegCo Oath solemnly and sincerely.
137. It
is a requirement of the law (whether under BL104 or the common law)
that an oath taker must take the oath in a solemn and sincere
manner. Members-elect are expected to know the law, and
ignorance of the law is never a valid excuse for failing to comply
with it. As a matter of fact, Mr Leung himself has confirmed
that he has always understood that he has to take the LegCo Oath
seriously, solemnly and sincerely.[18]
138. Solemnity
and sincerity are commonly understood words, and need no specific
guidelines. It is true that the degree and extent of solemnity
and sincerity required of may vary in different circumstances and
occasions. But in an objective test, what the law requires is
that the oath taker’s conducts or acts in taking the oath would be
regarded as falling within the range of the degree of solemnity
regarded by an ordinary and reasonable person to be commensurate and
consistent with the oath taking occasion, having regard to its
importance and seriousness. This is a matter of objective
common sense. It is neither necessary nor practicable to impose
clear and definite guidelines as submitted by Mr Lee.
139. Finally,
Mr Leung has deposed in his affirmation that he was indeed serious
and solemn in taking the LegCo Oath on 12 October 2016 and why he
genuinely commits himself to the pledge of allegiance under the oath
notwithstanding the way and manner in which he took the oath.
He explained in substance at paragraph 89 as follows (footnotes
omitted):
“89.
In response to paragraphs 17 and 26 of the Form 86 and paragraphs 18
and 21 of the HCMP Affirmation, I say as follows:
a.
I did not merely go through the motion of taking the LegCo
Affirmation as alleged. I took the 2016 Affirmation solemnly,
sincerely and with every intention to be bound by it. My seriousness
in reading the words of the LegCo Affirmation is demonstrated in the
video recording;
b.
I did not read out the words of the LegCo Affirmation in a truncated
or heavily truncated manner as alleged. I merely paused between
words. There is no prescribed point(s) for pausing in the LegCo
Affirmation prescribed by Part IV of Schedule 2 of the ODO. Indeed,
there was not, and could not have been any motive for me to pause
between the words 中華人民
and
共和國
for
中華人民共和國
or
香港
and
特別行政區
for
香港特別行政區;
c.
I was serious in stating that the oath-taking ceremony was very
solemn, and the allegation that I ‘ridiculed and questioned the
solemnity of oath taking’ by making this statement is totally
unfounded;
d.
I made short statements before and after taking the 2016 Affirmation.
The short statements I made before and after the taking of every one
of my five LegCo oaths represented my political platforms,and
I made them with the intention of telling the people
of Hong Kong, in particular, my voters,that I would do my
best to achieve those political goals during my term
of office as a legislator. The language I used and the manner of my
delivering those statements were consistent with my informal
and direct way of communicating with my voters. In
making those statements, I used the same informal language and
adopted the same direct manner of speaking as I normally would in
communicating with my voters. But those statements did not form any
part of the LegCo oath. I did not change the wording of the
LegCo oath or add or delete any word to or from it. I read
out the prescribed LegCo oath completely and accurately;
e.
Carrying a yellow umbrella and displaying a paper-board concerning
“人大831決議”
whilst
taking the LegCo oath did not mean that I was not serious, sincere or
solemn in taking the oath;
f.
Making statements, carrying and displaying objects and tearing up a
piece of paper with the words “人大831決議”
after
taking the LegCo oath likewise did not mean that I was not serious,
sincere or solemn in taking the oath; and
g.
In supporting self-autonomy and/or self-determination, I
do not advocate for or support the independence
of Hong Kong. Self-autonomy and self-determination are
different from,and should not be equated with independence of
Hong Kong. Self-autonomy and self-determination are not
inconsistent with the allegiance I owe to the HKSAR of the PRC. I
believe that Hong Kong citizens have the freedom to discuss
and decide on Hong Kong’s future after 2047 under the
existing framework of ‘One Country, Two Systems’ in which Hong
Kong is, as stipulated in the Basic Law, an inalienable part of the
PRC. It is totally irresponsible and unfair to
conclude that in supporting self-autonomy and/or self-determination,
I do not genuinely bear allegiance (and do not intend to bear
allegiance) to the HKSAR of the PRC and should therefore lose my seat
in LegCo; and
h.
Likewise, saying ‘無須中共批准’
does
not mean that I do not genuinely bear allegiance (and do not intend
to bear allegiance) to the HKSAR of the PRC.”
140. As
I have repeatedly said above, these subjective explanations relating
to Mr Leung’s subjective thinking and thought process are not
relevant to the objective assessment that the court adopts in
determining whether Mr Leung’s oath taking complied with the legal
requirements.
141. In
any event, these explanations (which relate to his subjective
intention to commit to the pledges in the LegCo Oath) do not assist
Mr Leung. They do not impact in any way on the court’s
conclusion that the way and manner in which Mr Leung took the LegCo
Oath did not objectively comply with the Solemnity Requirement.
Further, they indeed confirm that Mr Leung sought to incorporate in
the oath taking itself additional worded messages. This by
itself violates the Exact Form and Content Requirement as I have
explained above. The oath taking by Mr Leung therefore did not
comply with the legal requirements and is invalid in law.
142. For
all the above reasons, I conclude that Mr Leung declined or neglected
to take the LegCo Oath when requested to do so on 12 October 2016.
He is therefore disqualified from assuming the Office as a matter of
law and is not entitled to claim to act as a LegCo member.
143. The
Clerk’s Decision to accept Mr Leung’s purported affirmation of
the LegCo Oath as valid is therefore wrong in law and should be
quashed.
144. Further,
it follows that Mr Leung has claimed to be entitled to act as a LegCo
member when he is not so entitled. The court should grant the
declarations and injunction under section 73 of the LCO as sought by
the Plaintiffs under HCMP 3382/2016.
C4.
The oath taking on 12 October 2016 by Ms Lau
145. The
objective and undisputed evidence shows that Ms Lau took the LegCo
Oath in the following way and manner on 12 October 2016.
146. According
to the video footage, Ms Lau was requested by the Clerk to walk up to
the table at the centre of the chamber to take the LegCo Oath in
accordance with the predetermined order. Ms Lau purported to
take the LegCo Oath by first saying the following in Cantonese (“Ms
Lau’s Opening Statement”):
“本人劉小麗謹此承諾，本人由街頭進入議會，定必秉承雨傘運動命運自主精神，與香港人同行，連結議會內外，對抗極權。我們要活在真誠磊落之中，打破冷漠犬儒，在黑暗中尋找希望，共同開創民主自決之路。推倒高牆，自決自強。”[19]
147. She
then purported to read out the following words of the LegCo Oath at a
slow pace with a clear pause lasting about six seconds or so from one
character to the next following:
“我……謹……此……宣……誓……，本……人……就……任……中……華……人……民……共……和……”
148. At
this juncture, the Clerk interjected and informed Ms Lau that she had
altered the contents of the LegCo Oath and if she did so he would not
have jurisdiction to administer her oath. He requested Ms Lau
to take the LegCo Oath afresh. In the course of the exchanges
between the Clerk and Ms Lau, she also uttered the words “國”,
“無呀”
and
“點樣改變呀？”.
149. Ms
Lau then purportedly read out the words of the LegCo Oath again, also
at a slow pace, uttering character by character, with a similar long
pause from one word to the next following (except for her own name).
Having spent around 10 minutes reading out the words of the LegCo
Oath in this manner, she ended her oath taking with the statement
(“Ms Lau’s Closing Statement”)
“爭取全民退休保障，落實墟市政策，捍衛香港人生活尊嚴”,[20] this
time at a normal pace.
150. The
entire oath-taking lasted for a total of around 13 minutes. The
Clerk did not say anything about Ms Lau’s purported oath-taking
afterwards.
151. Further,
Ms Lau made the following statements about her above oath taking on
Facebook webpage and the media as follows.
152. On
13 October 2016, Ms Lau posted on the public Facebook webpage for her
political affiliation “Democracy Groundwork” or “小麗民主教室”
a
statement (“the FB Statement”) in Chinese explaining her conduct
during her purported oath-taking on 12 October 2016. The FB
Statement started with the following remarks:
153. Following
the opening remarks, the post was entitled
【劉小麗：慢讀是要彰顯誓詞的虛妄】,[22] within
which Ms Lau expressed her views against the “core of the lies”
that is the Hong Kong Special Administrative Region Government, and
stated that the whole of the BL and the political system including
the CE are not established through the will of the people and hence
are illegal, the details of which are as follows:
一個哈維爾說的故事。七十年代的捷克，一位菜檔老闆在檔口掛上一條橫額：「全世界工人團結起來！」任誰都察覺得到，菜檔老闆並不真心相信那句口號，他之所以要展示橫額，只是因為他害怕招惹麻煩，於是虛與委蛇，維持「社會和諧」。這句顯然是當權者授意的口號，最考妙之處在於，菜檔老闆無須明言對政權的恐懼，他甚至可以誑言掩飾：「『全世界工人團結起來』，有咩問題？」[25]
一個極權社會，依靠謊言維繫，人們活在謊言與虛偽之中。他們未必同意謊言，但只要假扮同意，或至少保持沉默，就可以在體制中生活。選擇順從的人，甚至可以主動迎合體制的要求去得到好處，以滿足自己的權力慾。[26]
昨天在會議廳，全體立法會議員作出宣誓。有些西裝骨骨、代表特權階級的愛國愛港人士，堂而皇之宣讀誓詞，完成行禮如儀的劇本，彷彿他們真的「謹以至誠」，許諾為人民服務。由此，他們成為尊貴議員，為權貴打手欺壓港人，還可以誑言掩飾：「做立法會議員服務市民，有咩問題？」[27]
一個公平公正的議會，本來是民主自由、人民意志的彰顯。但在香港，我們只有鳥籠式半民主；今次選舉期間的種種操控、取消候選人參選資格，踐踏僅餘的程序公正。立法會主席選舉上，梁君彥及秘書處在梁的國籍問題處理兒戲，竟然到投票日仍然疑點重重，最終梁君彥在混亂中「當選」，亦難以服眾。[29]
昨天，我將官方誓詞逐字宣讀。誓詞變成九十多句毫無連貫性的句子，沒有任何組合、連結及意義，令聽眾無法聽到任何句式及語氣。這樣，一切意義就純是觀眾自行分句，主觀判斷造成的憶測而已。這個做法是為了彰顯行禮如儀的虛偽。包括梁君彥在內的建制派，妄言任何阻撓梁君彥順利當選主席的反對派議員都是「搞事」、「破壞議會」，我卻要傳達一個訊息：流暢鏗鏘的宣誓是虛偽的，和諧的議會也是虛偽的。[30]
哈維爾說，要對抗極權，最根本的就是要瓦解維繫極權的謊言與虛偽。只有每個人都堅持不隨俗表態，說出自己真正所思所想，高牆才有被打破的可能。昨天只是一個開始，今後我將會在議會內外，與香港人同行，努力對抗各種體制要求的虛偽，做到哈維爾所說的活在真誠磊落之中（living
in truth），共同開創民主自決之路。[31]
最後，我在宣讀官方誓詞前的那一段說話，是更真誠的版本：
本人
劉小麗 謹以至誠，向香港市民承諾：
154. Ms
Lau had also explained to the media the rationale of her 6‑second
pause in between each word of the LegCo Oath, which was reported in
Apple Daily’s article (“the Apple Daily Article”) dated 13
October 2016, in which Ms Lau stated, among others, the following:
155. In
the President’s Ruling made on 18 October 2016, the President ruled
that the oath purportedly taken by Ms Lau was invalid, but allowed
her to retake the oath. In making this decision, the President
stated the following (at paragraphs 8 and 9):
“8.
Hon LAU Siu-lai subscribed an affirmation in Cantonese when taking
the LegCo Oath. I notice that in her first attempt to subscribe the
affirmation, she read out the words of the oath at a normal speed but
was stopped by the Clerk as she had altered the content of the
affirmation. In her second attempt, she subscribed the affirmation at
a speed very much slower than that in her first attempt. She just
read out each word of the oath prescribed by the Ordinance
individually, with a long pause between words, making it objectively
difficult for anyone to understand her affirmation. The conduct of Ms
LAU’s oath-taking, objectively assessed, has shown that she was not
serious about the affirmation and had no intention to be bound by it.
9.
Based on the above reasons, I rule that Ms LAU’s affirmation was
invalid and consider that she should subscribe the affirmation
afresh. I am prepared to allow her to do so at a Council meeting if
she puts forward her requests in writing.”
156. The
Plaintiffs now submit that this is a clear case that, objectively
viewed, Ms Lau did not genuinely and faithfully accept and thus bind
and commit herself to the obligations pledged in the LegCo Oath.
158. The
way in which Ms Lau read out LegCo Oath by breaking up each of
the words therein with a some 6-second pause in between each of
these words would objectively and unquestionably
lead a reasonable person to conclude that she did not intend to
convey any meaning of the contents and pledges of the LegCo Oath when
reading it out. All the individual words of the LegCo Oath were
read out in an incoherent and unlinked manner when she adopted a
mechanical manner in reading out each of the words
with an approximately 6-second break of silence. Objectively,
in so doing, no useful meaning of the very contents of the oath
(which is only established through the linking up of the individual
words therein in a coherent way) was intended to be conveyed to a
reasonable person.
159. On
this basis alone, I have no hesitation in coming to the conclusion
that, objectively looking at the manner and way in which Ms Lau
purported to take the LegCo Oath, Ms Lau did not manifest an
intention to genuinely and faithfully accept (and hence commit and
bind herself to) the obligations of the pledges embodied in the LegCo
Oath. She has clearly failed to comply with the Substantive
Belief Requirement.
160. Moreover,
the objective conclusion that Ms Lau did not intend to commit herself
to the obligations therein is indeed confirmed by herself. As
mentioned above, in the FB Statement, Ms Lau stated in no uncertain
terms that what she purportedly read on the day of taking the LegCo
Oath was ninety-odd unrelated and independent word-sentences,
entirely devoid of coherence and meaning
(“昨天，我將官方誓詞逐字宣讀。誓詞變成九十多句毫無連貫性的句子，沒有任何組合、連結及意義，令聽眾無法聽到任何句式及語氣”).
161. As
Mr Mok submits, the court is entitled to take into account Ms Lau’s
above admission made shortly after taking the
purported oath on 12 October 2016. Such evidence would be
admissible, and only limitation with regard to time is that it must
not be beyond such time as would prevent reasonable men from acting
upon it: AG v Bradlaugh (1885) 14 QBD 667 at
699, per Brett MR, and 711, per Cotton
LJ.
162. There
is therefore no question that Ms Lau did not comply with the
Substantive Belief Requirement in taking the LegCo Oath.
163. Further,
I accept Mr Mok’s further submissions that Ms Lau also violated the
Exact Form and Content Requirement in incorporating additional
messages in the oath itself.
164. Again,
Ms Lau made the Opening Statement and Closing Statement respectively
right before and after the reading out of the LegCo Oath, and after
she had been requested to take the oath. In the circumstances,
objectively viewed as a whole, these statements were made as part of
the oath taking itself. Ms Lau therefore sought to convey
additional worded messages (those two statements) in the oath taking,
which is not permissible in law. The oath taking therefore also
did not comply with the Exact Form and Content Requirement and is
unlawful and invalid.
165. Finally,
it is obvious that she intended to take the LegCo Oath in the
slow-paced manner and made the Opening and Closing Statements in the
way she did, which objectively viewed, did not comply respectively
with the Substantive Belief Requirement and the Exact Form and
Content Requirement. In law, she therefore declined or
neglected to take the LegCo Oath when requested to do so on 12
October 2016.
166. Mr
Chan SC for Ms Lau has put forward a number of contentions arguing
that she has validly taken the LegCo Oath. They are as follows.
167. First,
Ms Lau has deposed in her affirmation filed in these proceedings at
length the reasons as to why she took the LegCo Oath in the way she
did. In substance, she emphasized that she had always been
interested in the study of linguistics, and the 6-second pause for
each of the words when reading out the LegCo Oath was indeed a
deliberate manner she had worked out as a result of her study and
research in linguistics and past practices adopted by other LegCo
members-elect in taking the LegCo. She intended to make use of the
“effect” of “silence” as a linguistic skill to underline and
highlight the message to the public the “hypocrisy” of some LegCo
members (but who have not been identified by Ms Lau) who “treated
the oath as going through the motion” and to convey the message
that “their fluent oaths are hypocritical”. In particular,
she now maintained that by taking the oath at a slow pace, she wished
to “contrast with some LegCo members that [she] was indeed solemn
and sincere and was taking [her] oath seriously.” She said in
so doing, she was “inviting the public to reflect on the true
meaning behind taking an oath through [her] solemn and sincere way of
oath-taking”. She wished to “bring to the public attention
the hypocrisy of some LegCo members behind their fluent but insincere
oath-taking”. Ms Lau emphasised that she “did not intend
[her] oath to be meaningless. To the contrary, [she] very much
intended [her] oath to be meaningful”, as she “wished that [her]
oath could allow the public to reflect on the true meaning behind
taking an oath”. See: Ms Lau’s affirmation, paragraphs
56 - 84.
168. Ms
Lau also said the FB Statement and the media interview as reported in
the Apple Daily Article (which she said in any event did not fully
reflect everything she had said in the interview) should also be
understood in the above way. All that she was trying to say and
convey by way of the FB Statement and her explanations to the media
is to similarly highlight the hypocrisy of some LegCo members behind
their fluent but insincere oath-taking and to arouse the public to
reflect to this question.
170. Ms
Lau’s self-explanations are in nature evidence and matters of her
alleged subjective thought process and subjective intention in
adopting the slow-paced reading. They also relate to what
alleged subjective meaning she seeks to accord to that conduct.
As I mentioned above, they are irrelevant to the objective assessment
of whether the oath taking was legally compliant. The court
would not take them into account in construing what meaning Ms Lau’s
manner and way adopted in taking the LegCo Oath would be conveyed to
a reasonable and objective person at the time of the oath taking.
171. In
this respect, Mr Chan SC fairly recognises that the court is to apply
an objective test in assessing Ms Lau’s conducts and words in
taking the LegCo Oath, and that the subjective thinking of Ms Lau is
strictly speaking irrelevant to the objective exercise. Leading
counsel however argues that what Ms Lau has sought to explain in her
affirmation should be taken as the relevant background and context
against which the court should construe objectively what a reasonable
person would have understood her slow-paced reading of the LegCo Oath
to mean. In particular, Mr Chan says, in the context as
explained by Ms Lau, if it is unequivocal as to what she could be
reasonably and objectively understood to mean, the court should
accept an interpretation favourable to her since there would be a
lack of cogent evidence supporting a breach of the legal
requirements.
172. With
respect to Mr Chan, the objective context and
background relevant to an objective construction should be ones that
would have been reasonably known to a reasonable person present at
the time of the oath taking. In this respect, I am unable to
see how it could possibly be said that those subjective explanations
I have summarised above as to Ms Lau’s interest and study in
linguistics and her “intention” to convey the message to the
public to underline the “hypocrisy” of other unidentified members
of the LegCo could and would have been reasonably and objectively
known to a reasonable person. The same applies to the
construction of the FB Statement and Ms Lau’s explanations to the
media made shortly after 12 October 2016.
173. I
must therefore also reject this contention, and would not take into
account Ms Lau’s above explanations in considering the objective
meaning that would be conveyed to a reasonable person by her
slow-paced reading of the LegCo Oath.
174. In
any event, I also accept Mr Mok’s submissions that even if the
court was to take into account Ms Lau’s purported explanations,
they simply do not assist her. In my view, the objective
meaning and effect of the peculiar way in which Ms Lau read out the
LegCo Oath as this court has found above is so obvious and
unequivocal that Ms Lau’s self-explanations as to its underlying
meaning and message simply could not be accepted to have any bearing
on the objective construction so as to displace it.
176. Second,
Mr Chan submits that the court should give due respect and weight to
the Clerk’s decision in not treating Ms Lau’s oath taking on 12
October 2016 to be invalid. Alternatively, Mr Chan similarly
says the court should give due weight to the President’s decision
to allow her to retake the oath. Mr Chan therefore submits that
the court should be very slow in coming to a conclusion which is
different from either the Clerk’s decision or the President’s
Ruling. Mr Chan’s bases for these submissions are that a
decision on the compliance of taking an oath of allegiance is in
nature a political one and what constituted acceptable etiquette in
so doing would be a matter that would be judged in light of the
tradition, culture, history and values of the LegCo. The Clerk
and the President who have administered so many LegCo Oaths and who
are familiar with the LegCo practices are the best persons to make
these decisions.
177. I
have considered these submissions as a matter principle above at
paragraphs 54 - 58 and rejected the same. For those
same reasons, I reject this argument. In any event, I have
explained above why Ms Lau is regarded clearly in law to have
declined or neglected to take the LegCo Oath by adopting the
slow-paced reading. There is nothing stated by the President in
his decision that would persuade me that my conclusion is incorrect.
178. Third,
Mr Chan submits that whether Ms Lau had declined or neglected to take
the LegCo Oath must be determined at the time of taking the oath.
Thus, the court should ignore the FB Statement and the Apple Daily
Article. These are, Mr Chan says, ex post
facto statements which are not relevant to the question that
needs to be determined.
180. The
FB Statement and the media explanations as objectively construed are
in the nature of post event admission. These have always been
admissible as evidence.
181. In
any event, as I have said above at paragraphs 158 and 159, by
objectively looking at Ms Lau’s slow-paced reading of the LegCo
Oath alone without reference to the FB Statement and the Apple Daily
Article, the court has already come to the clear conclusion that she
manifested no intention to accept and commit herself to the LegCo
Oath obligations.
182. For
all the above reasons, I reject all of Ms Lau’s arguments to say
that she had validly complied with the oath taking requirements in
purportedly taking the LegCo Oath on 12 October 2016.
183. This
is an obvious case that in law Ms Lau declined or neglected to take
the LegCo Oath when requested to do so on 12 October 2016. She
has since been disqualified as a matter of law from assuming or
entering on the Office.
184. In
the premises, the President’s Ruling in allowing her to retake to
the LegCo Oath is wrong in law and should be quashed.
185. The
court should also declare that the Office held by Ms Lau has become
vacant since 12 October 2016 and that she has since wrongfully
claimed to be entitled to act in the Office as sought by the
Plaintiffs. There should also be an injunction restraining her
from so acting or claiming to be so entitled to act.
C5.
The oath taking on 12 October 2016 by Mr Yiu
186. The
objective and undisputed evidence shows that Mr Yiu took the LegCo
Oath in the following way and manner on 12 October 2016.
187. According
to the video footage, following the request made to Mr Yiu by the
Clerk for him to take the LegCo Oath, Mr Yiu purported to take the
LegCo Oath by reading out in Cantonese words which do not accord with
the wording of the LegCo Oath as prescribed by the ODO in the
following terms (the underlined words are not in the LegCo Oath as
prescribed by the ODO):
“本人姚松炎，謹以至誠，據實聲明及確認，本人就任中華人民共和國香港特別行政區立法會議員，定當守護香港制度公義，爭取真普選，為香港可持續發展服務，定當擁護《中華人民共和國香港特別行政區基本法》，效忠中華人民共和國香港特別行政區，盡忠職守，遵守法律，廉潔奉公，為香港特別行政區服務。”[34]
188. At
this juncture, the Clerk told Mr Yiu that since Mr Yiu had added
words to the oath and thereby amended the oath, he (ie, the Clerk)
had no jurisdiction to administer the oath for Mr Yiu, and requested
Mr Yiu to take the LegCo Oath again according to the prescribed form
and content, otherwise, Mr Yiu would not be allowed to attend LegCo
meetings according to Rule 1 of the Rules of Procedure of the LegCo.
189. Mr
Yiu said in response, “好呀”,
then said the following (again, the same underlined words are not in
the prescribed form of the LegCo Oath):
“本人姚松炎，謹以至誠，據實聲明及確認，本人就任中華人民共和國香港特別行政區立法會議員，定當擁護《中華人民共和國香港特別行政區基本法》，效忠中華人民共和國香港特別行政區，盡忠職守，遵守法律，廉潔奉公，為香港特別行政區服務，定當守護香港制度公義，爭取真普選，為香港的可持續發展服務。”[35]
190. At
this point, the Clerk stated that Mr Yiu added words immediately
after the oath which were not contained in the prescribed form and
that he had no jurisdiction to administer the oath for Mr Yiu, and
asked Mr Yiu to return to his seat.
191. In
the President’s Ruling made on 18 October 2016, the President
confirmed the Clerk’s above decision and ruled that Mr Yiu did not
validly take the LegCo Oath on 12 October 2016, but the President
allowed Mr Yiu to retake the oath. In making this decision, the
President stated the following (at paragraphs 6 and 7):
“6.
After examining the oath/affirmations taken by Dr Hon YIU
Chung-yim,
and two other Members at the Council meeting of 12 October 2016, I
affirm the Clerk’s decision to decline jurisdiction to administer
their oath/affirmations as they altered the contents of their
oath/affirmations. ... I notice that Dr YIU has added words to the
end of his affirmation, and as such, altered its content as
prescribed by the ODO.
YIU
Chung-yim,
and two other Members at the Council meeting of 12 October 2016, I
affirm the Clerk’s decision to decline jurisdiction to administer
their oath/affirmations as they altered the contents of their
oath/affirmations. ... I notice that Dr YIU has added words to the
end of his affirmation, and as such, altered its content as
prescribed by the ODO.
7.
By virtue of section 19 of the ODO, a Member shall, as soon as
possible after the commencement of his term of office, take the LegCo
Oath which, if taken at a Council meeting other than the first one
after a general election, shall be administered by me. As such, I
accede to Dr YIU’s written request for taking his affirmation
afresh at the Council meeting of 19 October 2016...”
192. At
the next LegCo meeting on 19 October 2016, Mr Yiu purportedly
“retook” the LegCo Oath before the President at the LegCo
meeting.
193. Mr
Mok now submits that, objectively looked at, in taking the LegCo Oath
on 12 October 2016, Mr Yiu had clearly breached the Exact Form and
Content Requirement, by intentionally added the extra words (“the
Extra Words”) “定當守護香港制度公義，爭取真普選，為香港可持續發展服務”[36] in
the prescribed content of the oath. Mr Yiu therefore had
declined or neglected to take the LegCo Oath on 12 October 2016.
196. When
requested by the Clerk to take the LegCo Oath on 12 October 2016, Mr
Yiu first purported
to take the LegCo Oath by uttering the following:
“本人姚松炎，謹以至誠，據實聲明及確認，本人就任中華人民共和國香港特別行政區立法會議員，定當守護香港制度公義，爭取真普選，為香港可持續發展服務，定當擁護《中華人民共和國香港特別行政區基本法》，效忠中華人民共和國香港特別行政區，盡忠職守，遵守法律，廉潔奉公，為香港特別行政區服務。”
(underlined are
the Extra Words)
197. There
can be no dispute that the Extra Words are not in the prescribed form
of the LegCo Oath. By adding these words in the middle of the
oath, plainly Mr Yiu had breached the Exact Form and Content
Requirement which thereby rendered that oath taking invalid as a
matter of law.
198. The
only other question left is whether objectively he
intended to add the Extra Words in the middle of the oath as he did.
If so, he would be regarded in law as having declined or neglected to
take the LegCo Oath, and be disqualified from taking the Office and
should not be permitted to retake the oath again.
(1) As demonstrated in the video of the oath taking, Mr Yiu after reading out the Extra Words in the beginning of the LegCo Oath, and after pausing momentarily, continued to read on with the rest of the words in the LegCo Oath to complete it.
(2) The Extra Words constituted a complete sentence of some 25 words. It would be objectively unreasonable for a person to have read and completed this entire sentence if it was not in the intended place of a passage. More so, when he indeed continued to finish reading thereafter the entire passage. Hence, the fact that Mr Yiu read out the entire sentence of the Extra Words in the middle of the LegCo Oath and continued thereafter to finish reading the rest of the LegCo Oath shows objectively that he intended to read out the Extra Words in the way he did.
(3) Alternatively, objectively, if he had not intended to insert the Extra Words in the beginning of the oath as he did, and that was merely a mistake, a reasonable person in his position would have stopped and started over again without reading out the Extra Words in the same place again. This is so as:
(a) Mr Yiu (and a reasonable person in his position) should reasonably have realised that he had made a mistake in reading out the Extra Words in the wrong place given that the Extra Words constituted a long complete sentence.
(b) Mr Yiu (and a reasonable person in his position) had before taking the LegCo Oath been reminded repeatedly by the LegCo circulars that it would be unlawful to take the LegCo Oath by adding words in the oath. Thus, objectively, Mr Yiu (and a reasonable person in his position) would have realised at the least that reading out words not in conformity with the prescribed form of the LegCo Oath in the middle of oath would render the oath taking invalid.
(4) In the premises, Mr Yiu in deciding to continue to read out the rest of the LegCo Oath even after reading out the Extra Words demonstrates objectively that at least by that time he intended to insert and read out the Extra Words in the way as he did in this first attempt.
200. As
such, Mr Yiu did decline or neglect to take the LegCo Oath when
requested to do so in failing to comply with the Exact Form and
Content Requirement in the first attempt. He should have
already been disqualified from taking the Office then and not be
permitted to retake the oath.
201. In
any event, there is no question in my view that Mr Yiu must be
regarded in law to have declined or neglected to take the LegCo Oath
in accordance with the law in the second time when requested by the
Clerk to do it again. This is so because:
(1) Although he was already warned by the Clerk that his first attempt oath taking was invalid by adding the Extra Words to the LegCo Oath, he still inserted and read out the Extra Words again the second time albeit at the end of the LegCo Oath. Viewed objectively, there is no doubt that he intended to add the Extra Words in the way as he did. This by itself is in breach of the Exact Form and Content Requirement, and the oath purportedly taken is invalid.
(2) Moreover, as shown in the video, Mr Yiu read out the Extra Words immediately, continuously and smoothly following the last sentence of the LegCo Oath, as if they were of the same passage. Objectively viewed, the Extra Words were therefore intended to be read out and understood as part and parcel of the oath.
(3) In the premises, Mr Yiu intended to read out the Extra Words and in the way as he did, which was not in compliance with the Exact Form and Content Requirement. Objectively assessed, he therefore declined or neglected to take the LegCo Oath when he was requested to do so.
202. In
the circumstances, as a matter of law, Mr Yiu in any event should be
disqualified from assuming the Office after the second attempt in
purporting to take the LegCo Oath on 12 October 2016.
203. Mr
Yiu raises a number of contentions to say why he did not decline or
neglect to take the LegCo Oath on 12 October 2016.
204. First,
he says it was not his intention to alter the form or substance of
the LegCo Oath by adding the Extra Words. In support, Mr Yiu
has filed an affirmation to explain why he took the LegCo Oath in the
way as he did in the first and second attempts. In substance,
he explained that:
(1) From the LegCo circulars and the government press release, he himself understood the position of taking the LegCo Oath being, among others, that (a) he must say all the words of the LegCo Oath solemnly, but there was no prohibition on insertion of words before, in between, or after the LegCo Oath; (b) a LegCo Oath that is in the form and manner inconsistent with the form prescribed by the ODO, that in the sense that it “alters the substance of the oath itself”, would be unlawful and of no effect; but (c) for whatever reason if he failed to take the LegCo Oath in the form and manner as prescribed by the ODO, he would be permitted to take an oath again at any other LegCo meeting which would be administered by the President: paragraphs 21 - 26.
(2) With the above (mis)understanding in mind, and having studied the practices of oath taking by other LegCo members-elect in previous occasions, he intended and decided to add the Extra Words to the end of his LegCo affirmation (ie, the LegCo Oath): paragraphs 27 - 38.
(3) His original plan was to read out the Extra Words after finishing reading out the LegCo Oath solemnly and sincerely. He initially intended to memorise the entire LegCo Oath and the Extra Words by heart and he tried to do that whilst waiting for his turn to take the LegCo Oath. However, he found that to be too difficult and decided that he would read out from his mobile phone when taking the oath: paragraphs 39 - 41.
(4) However, when it came to his turn in taking the LegCo Oath, he was a little nervous. Inadvertently and mistakenly, he read out the Extra Words (which began with the words “定當”) first as he was searching from the mobile phone screen for the beginning words “定當擁護” of the LegCo Oath. He realised it was a mistake at that time, but thinking that it should not invalidate his oath (given the past practices of other LegCo members-elect and his above understanding of the legal position), he decided on the spur of moment that he should carry on reading to finish the entire LegCo Oath: paragraph 42.
(5) When he was asked by the Clerk to do it the second time, he read out the Extra Words at the end of the LegCo Oath as he had originally planned to do. He did not have any reasons to believe that this would invalidate the oath taking as what he did was consistent with what other LegCo members had done in previous years and this year: paragraph 44.
(6) He did not decline or neglect to take the LegCo Oath. He in fact read out all the words in the LegCo oath solemnly and sincerely and genuinely agreed to be bound by the serious obligations in the LegCo Oath. He is not a secessionist and not one of those who “openly advocated the notion of ‘Hong Kong independence’, ‘Hong Kong national self‑determination’ or similar notions, condemned by the [Interpretation]”: paragraphs 42 - 44 and 51.
205. Again,
Mr Yiu’s above explanations as to why he took the LegCo Oath in the
way as he did are in nature matters and evidence of his subjective
intention and thought process. They are irrelevant to the
objective question of whether his oath taking complied with the
relevant legal requirements, and whether he declined or neglected in
law to take the LegCo Oath in so doing.
206. In
any event, even if the court was to take these explanations into
account, they indeed fortify the conclusion that, objectively, Mr Yiu
declined or neglected to take the LegCo Oath on 12 October 2016.
207. In
relation to the first attempt, Mr Yiu states that, when reading the
LegCo Oath, he realised that he “accidentally
picked up” the additional sentence which he had “intended to add
at the end”. Nevertheless, he decided to “carry
on reading”. In the premises, whether or not the original
utterance was inadvertent, his own evidence confirms that he
consciously deviated from the contents of the oath when he decided to
“carry on reading”. Hence, even on his own case, he did at
the material time intend to read out the Extra Words in the middle of
the entire LegCo Oath as a whole, which objectively assessed in law
offends the Exact Form and Content Requirement. As a matter of
law, he had declined or neglected to take the LegCo Oath and should
be disqualified from assuming the Office.
208. In
relation to the second attempt, in his own evidence, it is clear that
he indeed intended to add and read out the Extra Words at the end of
the LegCo Oath. For the reasons I have explained above,
objectively viewed, the way and manner in which he read out those
words immediately and continuously after the LegCo Oath would lead a
reasonable person to understand him as reading out the Extra Words by
treating them as part of the LegCo Oath. This would be altering
the form and content of the LegCo Oath and thereby unlawful. As such,
objectively assessed as a matter of law, Mr Yiu declined or neglected
to take the LegCo Oath at least in his second attempt in any event.
He shall equally be disqualified from assuming the Office in
law.
209. Mr
Yiu claims in his affirmation[37] that
it is his understanding that there is no prohibition on insertion of
words before, in
between,
or after the LegCo Oath, and it is only unlawful to alter the
substance of the LegCo Oath on the pledges. He also claims that
although he was referred to the authority of Leung
Kwok Hung v Legislative Council Secretariat, supra,
in the LegCo circulars, he was not provided a copy. Presumably
what he wanted to highlight by this claim is that he had not read the
authority in forming his (mis)understanding of the legal position.
(1) Ignorance or misunderstanding of the law is never a good excuse to justify an act which is legally invalid.
(2) Further, whilst the court looks only at the objective effect of Mr Yiu’s words and conduct, it is worth noting that Mr Yiu was, at the material times, fully aware of the existence of Hartmann J’s judgment in Leung Kwok Hung v Legislative Council Secretariat, supra, and that he was reminded by the Clerk on 20 September 2016 that he should “read the judgment of Mr Justice Hartmann” if he had any doubt. The fact that “no copies of that judgment were handed out” to the members is no excuse for not reading it, since it is available online to everyone and Mr Yiu was intending to take the risk of adding words to his LegCo Oath.
(3) There is, therefore, no justification whatsoever for his alleged understanding that there is “no prohibition on insertion of words before, in between, or after the LegCo Oath”.
(4) Even the press release of 11 October 2016 (which Mr Yiu relies on, at Mr Yiu’s affirmation at paragraph 25) does not assist him. It refers expressly to Hartmann J’s judgment, stating that a member-elect “must take his or her oath in a manner and form that accords with the Ordinance” and that taking the oath in a manner or form that is inconsistent with that as prescribed by the ODO would thereby result in “altering the substance of the oath itself, the oath offends Article 104 of the Basic Law and will therefore be unlawful and of no legal effect”.
212. Second,
Ms Eu SC for Mr Yiu submits that in deciding whether Mr Yiu declined
or neglected to take the LegCo Oath on 12 October 2016, the
Plaintiffs have to establish that Mr Yiu “intentionally and
deliberately flouted” the legal requirements under BL104 and the
ODO when taking the LegCo Oath as he did.
213. I
disagree. As I have explained in paragraph 110 above, given the
objective test, all that the Plaintiffs have to satisfy the court is
that (a) objectively, Mr Yiu intended to add the Extra Words in the
way as he did; and (b) the Extra Words so added, objectively viewed,
altered the form or substance of the LegCo Oath. It is not
necessary to show that Mr Yiu intended to flout the specific legal
requirement.
214. Third,
Ms Eu submits that the substantive legal test of a valid oath is
whether, viewed objectively, the oath taker can be seen to give his
pledge in relation to the three aspects of the oath, namely, to
uphold the BL, to bear allegiance to the Hong Kong Special
Administrative Region and to serve the Hong Kong Special
Administrative Region conscientiously. Hence, even though a
valid oath has to be correct in form and substance, the oath taker is
only to be disqualified from assuming the office if he intentionally
refuses to be bound by or give the above three pledges of the oath.
In relation to this question, Ms Eu submits that Mr Yiu’s evidence
(as summarised above at paragraph 204) is clearly relevant, which
negates any conclusion that he refused to be bound or give the
pledges.
216. As
a matter of law, paragraph 2(3) of the Interpretation expressly
provides that “An oath taker who intentionally reads out words
which do not accord with the wording of the oath prescribed by law …
shall be treated as declining to take the oath”. In other
words, an oath taker must not intentionally do any acts to change the
form of the oath when taking it. Compliance with the exact form
of the oath is therefore a separate and distinct legal requirement
for a valid oath taking.
217. In
any event, in Leung Kwok Hung v Legislative Council
Secretariat, supra, Hartmann J has already held at
paragraphs 35 - 36 (as quoted above) that in law an
alteration in the form of the oath is also a change in the substance
of the oath itself.
218. Further,
the court assesses objectively whether an oath taker intentionally
change the form of the LegCo Oath when taking it.
219. Fourth,
Ms Eu submits that since the Court of Appeal in the CA Judgment at
paragraphs 39 - 40, 79 and 95 has emphasized that the court
in hearing a challenge on the validity of an oath taking has to be
engaged in a full merits review (which approach is binding on this
court), the court must have had regard to all the
relevant objective evidence put forward by Mr Yiu to
determine objectively whether he declined or neglected to take the
LegCo Oath.
(1) Yiu’s passion for and his past contribution to public affairs (paragraphs 4 - 7).
(2) His mission in running for office (paragraphs 9 - 10).
(3) His efforts in the election campaign (paragraphs 11 - 15).
(4) His work since the election (paragraphs 14 - 15).
(5) His meticulous attention to briefings, circulars, press release and past practices, as to the requirements for proper oath‑taking (paragraphs 16 - 37).
(6) His spontaneous response “好呀” (which can mean alright, okay or good) to the Clerk when he was stopped and invited to retake the oath on 12 October 2016 (paragraph 44).
(7) His taking of the oath afresh with the Extra Words after the oath-taking on 12 October 2016 (paragraph 44).
(8) His confirmation that he is at all material times ready and willing to become a LegCo member to uphold the BL, bear allegiance to the Hong Kong Special Administrative Region and serve the Hong Kong Special Administrative Region (paragraph 56).
(9) His questions to the Clerk at around 12:31 pm for explanation as to why he was not permitted to take the LegCo Oath (paragraph 47).
(10) His letter to the President dated 13 October 2016 asking to take the oath afresh (paragraph 49).
(11) His dedication to LegCo work during all this time (paragraph 57).
(12) His confirmation that he is not a secessionist or an advocate of Hong Kong independence (paragraphs 8, 53(1) and (3)).
(13) The total absence of any reason as to why Mr Yiu should decline or neglect to take the oath or refuse to be bound.
221. Ms
Eu submits that the above objective evidence sheds light on the
objective circumstances before, during and after Mr Yiu’s oath
taking, and his subjective intention before, during and after the
oath taking. Given all the above, it makes absolutely no sense for
him to intentionally refuse to take the oath. Further, says Ms
Eu, objectively speaking, Mr Yiu read out the three core aspects of
the LegCo Oath accurately and solemnly, and thus gave a pledge
intending to be bound by those three aspects of the oath.
Having regard to such objective evidence, Ms Eu submits that,
objectively assessed, the Plaintiffs simply cannot show that Mr Yiu
intended to flout the law and attract the serious consequence of
disqualification.
222. Alternatively,
Ms Eu points out that Mr Yiu has also provided in his affirmation the
“innocent explanations” as to why he took the LegCo Oath in the
way he did. These explanations are that:
(1) They would enjoy immunity from suit for words spoken before the LegCo, or written in a report (paragraph 17).
(2) An oath that is in form and manner “inconsistent with” the ODO, in the sense that it “[alters] the substance of the oath itself” will be unlawful and of no legal effect (paragraph 26(2)).
(3) The validity of the oath does not mechanically depend upon the utterance of the exact number of words, without more or less. Adding word or sentence to the oath would not invalidate the oaths taken (paragraphs 18, 24(3), 27 - 33, 35, 42 and 44 - 45).
(4) If the oath is not taken in accordance with the relevant requirements, a LegCo member may seek to take the LegCo Oath afresh and have the oath administered by the President at another Council meeting (paragraphs 19, 24(4), 26(4)).
(5) The many past cases of oath taking where words were added. It was never said that this amounted to an invalid oath and in the past the Hon Wong Yuk Man was allowed to retake the oath (paragraph 27 - 37).
223. Ms
Eu argues that, given these explanations and Mr Yiu’s repeated
statements in the affirmation that he never intended to decline or
neglect to take the oath,[38] viewed
objectively, there is simply no compelling evidence to show that he
intentionally and deliberately flouted the requirements of the law,
or he did not intend to be bound by the oath, or he refused to give
the pledge. In the circumstances, at most Mr Yiu made an
invalid and non-confirming oath and should be allowed to take it
again.
225. As
I see it, the underlying plank of Ms Eu’s above submission is that
in order to find that Mr Yiu had declined or neglected to take the
LegCo Oath, the court must find, albeit objectively, that he had a
specific intent to flout the legal requirements or that he intended
not to be bound by the pledges in the oath. Hence, as Ms Eu
further submits, given his innocent explanations, especially his
mistaken understanding of the law, and the lack of any good reasons
for him to want to risk losing his seat after winning it, there
cannot be a finding based on compelling evidence that he did
specifically intend to flout the law or not to commit to the pledges
in the LegCo Oath, and thereby to attract the serious consequence of
losing his hard won seat.
226. Ms
Eu’s submissions would amount to the need to find that the oath
taker, in taking the oath, intended to break the law relevant to oath
taking and to lose to his or seat by doing so. However, this
underlying contention is in my view incorrect.
227. As
I have repeatedly explained above, given the objective test, it
is not necessary as a matter of law to find a
specific intention to break or not to comply with the specific legal
requirements relevant to oath taking. It is sufficient to show
that the oath taker intended to adopt a particular way, conduct or
manner to take the LegCo Oath, and that particular way, conduct and
manner of taking the oath objectively assessed do not comply with the
relevant legal requirements.
228. Once
understood the legal test in this way regarding the finding in law
whether an oath taker has “declined” and “neglected” to take
the LegCo Oath, for the reasons I have set out in paragraphs
204 ‑ 211 above, the evidence and innocent
explanations put forward by Mr Yiu do not assist him. Quite to
the contrary, as explained above, they support the clear conclusion
that, objectively, Mr Yiu did decline or neglect to take the LegCo
Oath whether at his first or second attempt on 12 October 2016.
229. In
the premises and for the above reasons, I conclude that Mr Yiu failed
to comply with the constitutional requirement under BL104 and
declined or neglected to take the LegCo Oath when requested to do so
on 12 October 2016. He has since been disqualified from
assuming or entering on the Office.
230. The
President thus erred in law in allowing Mr Yiu to retake his oath.
His decision should be quashed.
231. Finally,
since Mr Yiu has claimed to be entitled to act as a LegCo member
since 19 October 2016, the court should grant a declaration and
injunction under section 73 of the LCO.
D.
THE DEFENDANTS’ STAY APPLICATIONS
232. On
the last day of the hearing, after Mr Mok had completed his reply
submissions for the Plaintiffs, Mr Dykes (for Mr Law) made an oral
application for a permanent stay of these proceedings.[39] In
gist, Mr Dykes’ main reasons for making the application are these.
In the absence of any explanations from the Plaintiffs as to why they
brought these disqualification proceedings against only the
Defendants but not some other LegCo members-elect (who took the LegCo
Oath in similar manners and ways as the Defendants did), the present
proceedings brought against Mr Law are an abuse of process, and the
court should exercise its inherent jurisdiction and under Order 18,
rule 19(1)(d) of the Rules of the High Court to stay permanently or
dismiss the proceedings.
233. All
the other Defendants through their respectively leading counsel then
followed suit and made an oral application for a permanent stay or
dismissal of the present proceedings for abuse.
234. Given
the informal way that the stay applications were made, and that the
Plaintiffs were not given a proper opportunity to deal with them, I
gave directions for the parties to file written submissions
respectively in support and in response to these applications. The
parties have duly done so.[40]
235. Further,
the court has also granted retrospective leave to the Plaintiffs to
file the 2nd affirmation
of Ms Wong Hwa Yih (a senior Assistant Law Officer) for this
purpose. Ms Wong deposes that:
(1) The CE and the Hong Kong Special Administrative Region Government have the constitutional responsibility to uphold and implement the BL, to execute the relevant laws under the BL and to safeguard public interest, and the SJ as the guardian of public interest has similar constitutional duties commensurate with his official position.
(2) The Plaintiffs’ reasons for deciding to commence proceedings on the four cases and these four cases alone after the handing down of the CA Judgment was purely based on advice as to legal merits (after consulting external independent counsel and senior counsel), without any political consideration.
(3) This indeed has all along been stated in public statements by the SJ, the Government and the CE (the public statements are exhibited in Mr Wong’s 2nd affirmation).
(1) It is an abuse of legal power and process for political considerations: Judicial Review Handbook at paragraph 52.2. In particular, it is submitted that the court should not allow its process to be used by the CE and the SJto advance sectional interests so that a political advantage is gained by selective disqualification. Cf: Porter v Magill [2002] 2 AC 357, at paragraph 19(5), per Lord Bingham.
(2) In the present context, there are many other members-elect (“the Other Members-Elect”) who took the LegCo Oath on 12 October 2016 in similar ways, conducts and manner as the Defendants did,[41] which ways, conducts and manner are now subject to the Plaintiffs’ complaint in these proceedings for legal non-compliance. In particular, a number of the Other Members-Elect read out messages and slogans not related to the oath before and after the oath itself. Notwithstanding the close similarities in the way in which the Other Members-Elect and the Defendants took the LegCo Oath, the Plaintiffs only selectively brought the present disqualification proceedings against the Defendants but not the Other Members-Elect.
(3) The Plaintiffs have not explained why they have not brought similar proceedings against the Other Members‑Elect. In the circumstances, in particular given the Defendants’ identification of the Other Members-Elect, the court can infer that the Government has no good reason if she gives no explanation for taking a particular course if all the circumstances of the case seem to put in favour of taking a certain course. Cf: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1053G-1054A, per Lord Pearce.
(4) In this respect:
(a) Mr Law further says it is obvious in these circumstances, in particular in the lack of any explanations from the Government, that the Government is “politically motivated” in only bringing the proceedings against the Defendants but not the others so as to disqualify so many pro‑democrats as would destroy their majority in the LegCo in Geographical Constituencies.[42] In support, Mr Law has filed his 3rd affirmation[43] disposing that the pro-democrats and non-establishment camp have a majority of 17:16 in the Geographical Constituencies, and that if he, Mr Leung, Ms Lau (excluding Mr Yiu who belongs to the functional constituency) are also disqualified, the pro-democracy and non-establishment camp would lose their 17:16 majority in the Geographical Constituency.
(b) Mr Lau asserts it is inevitable to infer in the absence of an explanation that these proceedings were brought against only the four Defendants for an improper purpose, namely succumbing to undue political pressure. She says the inference of political pressure is fortified in light of the fact that the Interpretation was issued in the middle of the judicial trial of the disqualification proceedings which eventually resulted in the CFI Judgment, and the Explanations that accompanied the Interpretation have gone far beyond the Interpretation.[44]
(c) Mr Yiu says that the Plaintiffs selectively targeted the four Defendants for purposes they (the CE and the SJ) do not want to make clear to the public. Mr Yiu further says the 2nd affirmation of Ms Wong Hwa Yih in fact shows that the Plaintiffs simply could not come up with any good reasons that they could disclose to say why only the Defendants have been targeted for disqualification, as the affirmation (including the press statements) contains nothing but bare denials and self‑serving assertions that they have relied on legal advice to sue only the Defendants. It must be noted (as emphasized by all the Defendants in their submissions) that the Plaintiffs have chosen not to waive the legal privilege (which they could have) and disclose the purported legal advice to support the explanations.[45]
(d) Mr Leung effectively agrees and adopts the above submissions of the other Defendants and says, in the absence of an explanation, the Plaintiffs’ decision to sue only the four Defendants was tainted with political considerations or arbitrary. He further submits that this is particularly so as these proceedings are “unique” in that the executive (the CE in his personal capacity) and the SJ are suing the legislature viz the President and the Clerk and the four elected members of the LegCo.[46]
(5) Mr Leung also argues that the Plaintiffs have extended their case in the hearing against the Defendants (which has not been set out in the Forms 86 and the Originating Summonses) by submitting that messages added before, during or after the reading of the LegCo Oath form part of the oath itself, amounting to a contravention of Exact Form and Content Requirement. This by itself is an abuse of process.[47]
238. I
am not persuaded that the commencement of the present proceedings
amount to an abuse of process as contended by the Defendants.
My reasons are as follows.
239. As
submitted by Mr Yu SC for the Plaintiffs, the burden on proving an
abuse is on the Defendants, which burden is a heavy one, and the
power to grant a permanent stay is one only to be exercised in the
most exceptional circumstances: Williams v Spautz (1992)
174 CLR 509 at 529; Fox v Attorney-General [2002]
NZLR 62 at 71. Hence, it has been observed by Sumption JSC
in Crawford Adjusters (Cayman) Ltd v Sagicor General
Insurance (Cayman) Ltd [2014] AC 366 at paragraph 149 that
such cases are extremely rare.
240. Moreover,
in considering an application for permanent stay based on using the
proceedings for an improper purpose, the law draws a clear and
important distinction based on the use of the
process for obtaining judgment against the misuse of the process for
a predominant purpose other than for which the proceedings are
designed. This important distinction has been explained and
illustrated in the following authorities.
241. Mason
CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz, supra,
at 526 gave the example as follows:
“Thus,
to take an example mentioned in argument, an alderman prosecutes
another alderman who is a political opponent for failure to disclose
a relevant pecuniary interest when voting to approve a contract,
intending to secure the opponent's conviction so that he or she will
then be disqualified from office as an alderman by reason of that
conviction, pursuant to local government legislation regulating the
holding of such offices. The ultimate purpose of bringing about
disqualification is not within the scope of the criminal process
instituted by the prosecutor. But the immediate purpose of the
prosecutor is within that scope. And the existence of the ultimate
purpose cannot constitute an abuse of process when that purpose is to
bring about a result for which the law provides in the event that the
proceedings terminate in the prosecutor's favour.”
242. Similarly,
Lord Wilson JSC and Sumption JSC respectively explained this
in Crawford Adjusters (Cayman) Ltd, supra, at
paragraphs 63 and 149:
“63.
What is an improper purpose? A helpful metaphor suggested by Isaacs J
in the High Court of Australia in Varawa
v Howard Smith Co
Ltd (1911)13
CLR 35, 91, is that of a stalking-horse:
‘If
the proceedings are merely a stalking-horse to coerce the defendant
in some way entirely outside the ambit of the legal claim on which
the court is asked to adjudicate they are regarded as an abuse of
process for this purpose ...’
The
metaphor aids resolution of the conundrum raised by the example of a
claimant who intends that the result of the action will be the
economic downfall of the defendant who may be a business rival or
just an enemy. If the claimant’s intention is that the
result of victory in the action will be the defendant’s downfall,
then his purpose is not improper: for it is nothing other than to
achieve victory in the action, with all such consequences as may flow
from it. If, on the other hand, his intention is to secure
the defendant’s downfall – or some other disadvantage to the
defendant or advantage to himself – by use of the proceedings
otherwise than for the purpose for which they are designed, then his
purpose is improper.”
“149
… The
essence of the tort is the abuse of civil proceedings for a
predominant purpose other
than that for which they were designed. This means for the purpose of
obtaining some wholly extraneous benefit other than the relief sought
and not reasonably flowing from or connected with the relief
sought. The
paradigm case is the use of the processes of the court as a tool of
extortion, by putting pressure on the defendant to do something
wholly unconnected with the relief which he has no obligation to do.”
(emphasis added)
243. Recently
in Melbourne City Investments Pty Ltd v Treasury Wine Estates
Ltd (2016) 243 FCR 474, Foster J at paragraphs 117 - 119
referred to Williams v Spautz for the principle that
it is the use of the proceedings which must be
examined and which may constitute an abuse of process. The
learned judge, after considering a line of authorities, then
concluded at paragraphs 147(d) and (f) that:
(1) An improper purpose is a purpose to use a proceeding as a means of obtaining some advantage for which that proceeding is not designed. It is the use of the proceedings which must be examined and which may constitute an abuse of process. The purposes which legal proceedings are designed to serve are the protection or vindication of particular rights or immunities, the maintenance or affection of particular legal relationships and the imposition of particular legal penalties, liabilities and obligations. The pursuit of a legal remedy is not converted into an abuse of process merely by an unworthy or ulterior motive.
(2) The onus of proving an abuse in any given case rests upon the party alleging abuse. That onus is a heavy one.
244. Bearing
in mind the above relevant principles and fundamental distinction, I
accept the Plaintiffs’ submissions that the Defendants have not
discharged the burden to show that it is an abuse of process for the
Plaintiffs to bring the present disqualification proceedings against
the Defendants.
245. As
emphasised by Mr Yu, it is for the Defendants to show that there had
been an abuse as contended, and prima facie not for
the Plaintiffs to explain why the commencement of the proceedings was
not an abuse.
246. In
any event, it is incorrect for the Defendants to say that the
Plaintiffs have not explained why the proceedings were brought
against the Defendants. As set out in Mr Wong’s
2nd affirmation,
the SJ, the CE and the Government have issued statements as early as
1, 2 and 6 December 2016 repeatedly explaining and emphasizing that
the only standard to be applied in taking action was based on legal
advice including advice from independent counsel, and there will not
be and has not been any political consideration.
247. As
the Plaintiffs have submitted, a case to disqualify a LegCo member
has to be clear and the court looks at the totality
of evidence in each case. It is the Plaintiffs’ case that in
their assessments, these four cases are clear because
they involve a number of features which, taken cumulatively in each
case, clearly establish a case for disqualification. They also
contain features over and above and are different from other cases
such as (as pointed out by Mr Yu): Ms Lau’s Opening Statement and
slow reading, Mr Law’s Opening Statement demonstrating his
insincerity and his intentional intonation, Mr
Yiu’s repeated insertion of the Extra Words as
part of his oath, Mr Leung’s theatrical performance showing his
insincerity and his use of props and theatrical conduct as
and when he was taking the oath forming part and parcel of the same.
The Plaintiffs therefore submit they formed the view on legal
advice that these four cases best satisfied the clear ones, and that
is entirely reasonable for them to act on legal advice as to the
merits of each case and to proceed only on cases which are regarded
as clear.
248. Mr
Yu further emphasizes that the pursuit of clear cases by the CE or
the SJ meets or accords with the Defendants’ submissions on the
cogency of evidence required. The CE or the SJ recognize the
need for a high threshold and adopt a prudent approach. This
is, says Mr Yu, the antithesis of an abuse.
249. In
this respect, it must be noted that the court must consider each case
on its own facts and against its own context. As made clear in
the CA Judgment (at paragraph 39): “In the final analysis, what is
at stake is the compliance of a constitutional requirement of
great significance. In any given set of facts, this can admit of
one correct answer only.” (emphasis added). The
Defendants never contend that the court must necessarily reach the
same “correct answer” in each of the four cases here. The
case against each of them differs, and they retain different legal
teams and advance different defences. It is not the Defendants’
case that either the court should rule against all four Defendants or
else it should rule against none of them.
250. The
court also notes that it is not the Defendants’ case that, if the
CE or the SJ were to pursue the other LegCo members, the court must
necessarily reach the same “correct answer” and either rule
against all these LegCo members (including the Defendants) or else
rule against none of them.
251. In
the premises, when it is looked at in the above way, I am of the view
that the Defendants cannot fault the Plaintiffs’ prima
facieexplanation that the decisions to bring the present
proceedings against them but not the Other Members‑Elect were
based on legal advice on merits.
252. But
more importantly, the court is not persuaded by the Defendants’
contentions as summarized above to say why the present proceedings
brought against them are an abuse of process. This is what I
now turn to look at.
253. With
respect, the Defendants’ principal basis for saying that the
proceedings were brought for political purposes is at best
speculative and in any event does not hold out:
(1) Mr Law’s above contention (which is shared by Mr Leung and Ms Lau) on political motivation is, as submitted by Mr Yu, a non sequitur. If there was indeed a political motive in seeking disqualification of pro-democrats in order to secure a pro-establishment majority in the Geographic Constituency as alleged, Mr Law’s theory does not explain why the Plaintiffs would have to be selective and only proceeded against the four Defendants, but not the Other Members-Elect, who could generally also be regarded belonging to the “pro-democrats” and “non-establishment” camp. The theory also could not explain why the Plaintiffs at the same time also commenced the proceedings against Mr Yiu who, as pointed by Mr Law himself, belongs to the functional constituency.
(2) The same applies to Ms Lau’s allegation that the proceedings were issued under “political pressure”. If this were correct, it is difficult to understand why the same alleged “political pressure” would not have caused the Plaintiffs to seek to disqualify the Other Members-Elect as well.
(3) It must be remembered that the burden is on Defendants to prove abuse. Mere speculation based on a prima facie logically defective theory does not suffice.
(4) Mr Yiu’s purely speculative, vague and unsupported submission that “it appears the Plaintiffs selectively targeted the four Defendants for purposes they (the CE and the SJ) do not want to make clear to the public” also simply could not discharge the burden to show abuse.
(5) Mr Leung’s additional submission to say that the proceedings are brought for political considerations because it is “unique” for the executive (being the CE and the SJ) to sue the legislative (viz the President and the four elected members-elect) is, with the greatest respect, without any substance. As a matter of proper legal procedures and rights, the CE and the SJ are the proper parties to bring these proceedings concerning the constitutional compliance by members-elect of the LegCo to take the LegCo Oath. See: the CA Judgment, paragraphs 48 - 50, per Cheung CJHC.
(6) Moreover, as emphasized by Poon JA in the CA Judgment at paragraph 87, elected members-elect of the LegCo must also comply with the constitutional requirements provided in the BL. When disputes arise as to whether individual LegCo members have breached the constitutional requirements mandated in the BL, the court has a duty to adjudicate and rule on the matters, and in so doing, the court does not seek to undermine the authority or function of the LegCo or diminish the mandate that the electors gave to the LegCo members concerned. Rather, the court ensures that the LegCo or the members concerned exercise their powers lawfully in accordance with the constitutional requirements to maintain the integrity of the LegCo and the confidence of the public in the institution.
(7) Hence, the mere fact that disqualification proceedings are commenced by the CE and the SJ (as the proper parties) against elected members-elect of the LegCo and the President or the Clerk in relation to disputes concerning the important question of constitutional compliance in taking the LegCo Oath and in assuming the Office cannot by itself be said to be political in nature.
254. Further,
in my view, the above identified falsity of the Defendants’
theories and submissions as to why they say the proceedings against
them only are brought with political motivation or improper purpose
rather reinforces the Plaintiffs’ explanation that these
proceedings were taken out based on legal advice on merits.
255. As
summarized at paragraph 237(5) above, the Defendants seek also to
rely on the contention that the Plaintiffs had purportedly expanded
the case against the Defendants at the hearing to
support the submissions that the Plaintiffs had abused the process by
targeting only the Defendants but not the Other Members‑Elect
(since the “new case” is allegedly equally applicable to the
circumstances of the Other Members‑Elect). Even if (which
I do not accept) the Plaintiffs did expand their case against the
Defendants by contending that an oath taker cannot add any worded
messages to the LegCo Oath itself, given that it is the Defendants’
contention that the Plaintiffs only thought of and relied on the “new
case” by the time these proceedings have come to the hearing in
March 2017, by definition, the Plaintiffs simply could not have
recognised that they could pursue against the Other Members-Elect
based on the “new case” at the time the commencement of the
present proceedings. By March 2017, as pointed out by Mr Dykes
in his skeleton at paragraph 16, it would already be too late for the
Plaintiffs to bring any disqualification proceedings against the
Other Members-Elect on the new ground. This “new case”
submission simply does not support an abuse of process as contended
by the Defendants.
256. Finally,
there is also no evidence to suggest that the Plaintiffs did not
intend to bring the proceedings to their conclusion and seek the
relief sought. To the contrary, it is indeed clear that the
Plaintiffs have proceeded against the Defendants to trial. In
the premises, bearing in mind the important distinction in law as
emphasised above, purely for the sake of argument, even if (which is
not established by the Defendants for the above reasons) the
Plaintiffs did so with the object of seeking disqualification thereby
achieving some extraneous purpose, this cannot constitute an abuse of
process when that alleged purpose is to bring about a result for
which the law provides in the event that the proceedings end in
favour of the Plaintiffs.
257. In
the premises, I am not satisfied that the Defendants have discharged
the burden to show a clear case that the commencement of these
proceedings against the Defendants is an abuse of process by the
Plaintiffs to achieve an ulterior or political motive.
258. I
would dismiss the Defendants’ respective applications for a
permanent stay or dismissal of the present proceedings.
E.
CONCLUSION AND DISPOSITIONS
259. For
all the above reasons, the Plaintiffs succeed in each of these
proceedings respectively against the Defendants. As against
each of the Defendants, I will make the following orders.
(1) Under the judicial review in HCAL 223/2016:
(a) A declaration that the President’s Ruling is contrary to law and ultra vires.
(b) A declaration that the LegCo Oath purportedly taken by Mr Law on 12 October 2016 is invalid.
(c) A declaration that Mr Law has since 12 October 2016 been disqualified from assuming and entering on the Office or has vacated the same.
(d) A declaration that the Office purportedly held by Mr Law is now vacant.
(e) An order of certiorari to quash the President’s Ruling.
(2) Under the Origination Summons in HCMP 3379/2016:
(a) Declarations that:
(i) The LegCo Oath purportedly taken or made by Mr Law on 12 October 2016 is invalid.
(ii) Mr Law has since 12 October 2016 been disqualified from assuming and entering on the Office or has vacated the same.
(iii) The Office purportedly held by Mr Law is now vacant.
(iv) Mr Law acted as a member of the LegCo and/or claimed to be entitled to act as a member of the LegCo while disqualified from acting in such office.
(v) Mr Law is not entitled to act as a member of the LegCo or claim to act as a member of the LegCo.
(b) An injunction to restrain Mr Law from acting as a member of the LegCo and claiming to act as a member of the LegCo.
(1) Under the judicial review in HCAL 224/2016:
(a) A declaration that the Clerk’s Decision is contrary to law and ultra vires.
(b) A declaration that the LegCo Oath purportedly taken by Mr Leung on 12 October 2016 is invalid.
(c) A declaration that Mr Leung has since 12 October 2016 been disqualified from assuming and entering on the Office or has vacated the same.
(d) A declaration that Mr Leung is disqualified as a member of the LegCo and the Office purportedly held by Mr Leung is now vacant.
(e) An order of certiorari to quash the Clerk’s Decision.
(2) Under the Origination Summons in HCMP 3382/2016:
(a) Declarations that:
(i) The LegCo Oath purportedly taken or made by Mr Leung on 12 October 2016 is invalid.
(ii) Mr Leung has since 12 October 2016 been disqualified from assuming and entering on the Office or has vacated the same.
(iii) The Office purportedly held by Mr Leung is now vacant.
(iv) Mr Leung acted as a member of the LegCo and/or claimed to be entitled to act as a member of the LegCo while disqualified from acting in such office.
(v) Mr Leung is not entitled to act as a member of the LegCo or claim to act as a member of the LegCo.
(b) An injunction to restrain Mr Leung from acting as a member of the LegCo and claiming to act as a member of the LegCo.
(1) Under the judicial review in HCAL 225/2016:
(a) A declaration that the President’s Ruling is contrary to law and ultra vires.
(b) A declaration that since 12 October 2016, Ms Lau has been disqualified from assuming and entering on the Office of a member of the LegCo or has vacated the same and is not entitled to take the LegCo Oath afresh.
(c) A declaration that the President had no power to administer the LegCo Oath purportedly taken by Ms Lau on 2 November 2016.
(d) A declaration that the LegCo Oath purportedly taken by Ms Lau on 2 November 2016 is invalid.
(e) A declaration that the Office purportedly held by Ms Lau is now vacant.
(f) An order of certiorari to quash the President’s Ruling.
(2) Under the Origination Summons in HCMP 3381/2016:
(a) Declarations that:
(i) The LegCo Oath purportedly taken or made by Ms Lau on 12 October 2016 is invalid.
(ii) Ms Lau has since been disqualified from assuming and entering on the Office or has vacated the same.
(iii) Ms Lau is not entitled to retake the LegCo Oath.
(iv) The LegCo Oath purportedly taken or made by Ms Lau on 2 November 2016 is invalid.
(v) The Office purportedly held by Ms Lau is now vacant.
(vi) Ms Lau acted as a member of LegCo and/or claimed to be entitled to act as a member of LegCo while disqualified from acting in such office.
(vii) Ms Lau is not entitled to act as a member of the LegCo or claim to act as a member of the LegCo.
(b) An injunction to restrain Ms Lau from acting as a member of the LegCo and claiming to act as a member of the LegCo.
(1) Under the judicial review in HCAL 226/2016:
(a) A declaration that the President’s Ruling is contrary to law and ultra vires.
(b) A declaration that Mr Yiu has since 12 October 2016 been disqualified from assuming and entering on the Office of a member of the LegCo or has vacated the same, and is not entitled to take the LegCo Oath afresh.
(c) A declaration that the President had no power to administer the LegCo Oath purportedly taken by Mr Yiu on 19 October 2016.
(d) A declaration that the LegCo Oath purportedly taken by Mr Yiu on 19 October 2016 is invalid.
(e) A declaration that Mr Yiu is disqualified as a member of the LegCo and the Office purportedly held by Mr Yiu is now vacant.
(f) An order of certiorari to quash the President’s Ruling.
(2) Under the Origination Summons in HCMP 3378/2016:
(a) Declarations that:
(i) The LegCo Oath purportedly taken or made by Mr Yiu on 12 October 2016 is invalid.
(ii) Mr Yiu has been disqualified from assuming and entering on the Office or has vacated the same.
(iii) Mr Yiu is not entitled to retake the LegCo Oath.
(iv) The LegCo Oath purportedly taken or made by Mr Yiu on 19 October 2016 is invalid.
(v) The Office purportedly held by Mr Yiu is now vacant.
(vi) Mr Yiu acted as a member of the LegCo and/or claimed to be entitled to act as a member of the LegCo while disqualified from acting in such office.
(vii) Mr Yiu is not entitled to act as a member of the LegCo or claim to act as a member of the LegCo.
(b) An injunction to restrain Mr Yiu from acting as a member of the LegCo and claiming to act as a member of the LegCo.
264. There
are no reasons why costs should not follow the event. I
therefore make an order nisi that costs of each of
the judicial reviews be to the Plaintiffs and costs of each of the
origination summonses be to the SJ, to be taxed if not agreed with
certificate for three counsel. Mr Leung’s own costs be taxed
in accordance with legal aid regulations.
(Thomas
Au)
|
|
Judge
of the Court of First Instance
|
|
High
Court
|
Mr
Benjamin Yu, SC (only in opposing the Defendants’ stay
application), Mr Johnny Mok, SC, Mr Jimmy Ma & Mr Jenkin Suen,
instructed by Department of Justice, for the plaintiffs in HCAL
223-226/2016 and the plaintiffs in HCMP 3378, 3379, 3381, 3382/2016
Mr
Philip Dykes, SC, & Mr Jeffrey Tam, instructed by Ho Tse Wai &
Partners, for the interested party in HCAL 223/2016 and the defendant
in HCMP 3379/2016
Ms
Audrey Eu, SC, & Ms Christine Yu, instructed by Khoo & Co,
for the interested party in HCAL 226/2016 and the defendant in HCMP
3378/2016
Mr
Martin Lee, SC, Mr Carter Chim & Ms Senia Ng, instructed by JCC
Cheung & Co, assigned by Director of Legal Aid for the interested
party in HCAL 224/2016 and the defendant in HCMP 3382/2016
Mr
Johannes Chan, SC (Hon), Mr Hectar Pun, SC, & Mr Anson Wong
Yu-yat, instructed by Bond Ng Solicitors, for the interested party in
HCAL 225/2016 and the defendant in HCMP 3381/2016
Lo
& Lo for the respondent in HCAL 223 - 226/2016,
attendance excused
[1] The
constitution for the Hong Kong Special Administrative Region.
[2] Leading
counsel for the other Defendants have rightly recognized this
position and sought only to reserve their rights to advance similar
arguments concerning the effect of the Interpretation on appeal.
[3] See The
New Shorter Oxford English Dictionary.
[4] Mr
Lee relies on the accepted practices that can be found in the LegCo’s
Rules of Procedure, various past rulings by the President and the
“Committee on Rules of Procedure of the LegCo for the Hong Kong
Special Administrative Region – Progress Report for the period
October 2013 to June 2014” dated 9 July 2014. Some of these
have also been referred to and summarized in “A companion to the
history, rules and practices of the Legislative Council of the Hong
Kong Special Administrative Region” printed by the LegCo Commission
and laid on the table of the LegCo on 18 June 2014. See also
Leung Kwok Hung’s 2nd affirmation,
paragraphs 62 - 79.
[5] LC
Paper No CB(3) 2/16-17
[6] LC
Paper No CB(3) 17/16-17
[7] LC
Paper No CB(3) 18/16-17
[8] English
translation: Affirmation, English being “affirmation”, has the
original meaning in Latin of rendering it more assertive or
strengthened. Taking the oath is a solemn ceremony, requiring
us to make a pledge to Hong Kong people that we will keep our words
and actions as one, to staunchly protect the rights of Hong Kong
people. However, this sacred ceremony has today been reduced to
a political tool used by those in power to forcefully subject
representatives of people’s will to the system and the totalitarian
authority. You can chain me, you can torture me, you can even
destroy this body, but you will never imprison my mind. Today I
must complete the necessary procedure, but this does not mean I am
subjugating myself under the totalitarian authority. Hong Kong
citizens will forever be the ones whom we serve and unite, I will
absolutely not bear allegiance to a political administration which
brutally killed its people, I will maintain my principles, and
protect Hong Kong people with my conscience. Hope is in the
people, change is in resistance.
[9] English
translation: Civil Disobedience.
[10] English
translation: End One-Party Dictatorship.
[11] English
translation: National People’s Congress (“NPC”) 831 Decision.
[12] English
translation: Umbrella Movement! Indomitable! Civil Disobedience!
Without Fear! Self-Autonomy and Self-Determination for People! No
Approval from the Communist Party of China is Required! I Want Dual
Universal Suffrage! Leung Chun Ying Step Down!
[13] English
translation: Okay? Use Chinese or English or Shanghainese? I
chose Chinese, excuse me. Listen everybody, it is very solemn.
Two years ago, people were out there, fighting for dual universal
suffrage, and were arrested and beaten up.
[14] English
translation: I, Leung Kwok Hung, solemnly, sincerely, and truly
declare and affirm that, being a member of the Legislative Council of
the Hong Kong Special Administrative Region of the People’s
Republic of China, I will uphold the Basic Law of the Hong Kong
Special Administrative Region of the People’s Republic of China,
bear allegiance to the Hong Kong Special Administrative Region of the
People’s Republic of China and serve the Hong Kong Special
Administrative Region conscientiously, dutifully, in full accordance
with the law, honestly and with integrity.
[15] English
translation: Revoke NPC 831 Decision! I Want Dual Universal Suffrage!
[16] English
translation: NPC 831 Decision.
[17] English
translation: Revoke NPC 831 Decision! Revoke NPC 831 Decision! I Want
Dual Universal Suffrage! Self-Autonomy and Self-Determination for
People! No Approval from the Communist Party of China is Required!
[18] Mr
Leung deposed at paragraph 87 of his 2nd affirmation
that “I have always understood that the LegCo oath has to be taken
seriously, solemnly and sincerely…”
[19] English
translation: I, Lau Siu Lai, hereby make this pledge, that I, having
entered the Council from the streets, will certainly carry forth the
spirit of self-determination of destiny in the Umbrella Movement,
walk with the Hong Kong people, connect the inside and outside of the
Council, to fight against totalitarianism. We must live in truth,
break the indifference and cynicism, look for hope in the darkness
and blaze a trail to democratic self-determination together. Tear
down the high wall [for] self-determination and self-reliance.
[20] English
translation: Fight for universal retirement protection, implement
policy for bazaar and staunchly defend the dignity of Hong Kong
people in their living.
[21] English
translation: What I read, was ninety-odd unrelated and independent
word sentences, entirely devoid of coherence and meaning. All meaning
was merely a guess from the subjective judgment of the audience by
making up the clauses themselves.
[24] English
translation: With regard to the oath-taking ceremony yesterday, I
would like to tell a story.
[25] English
translation: A story told by Vaclav Havel. In the Czech Republic in
the seventies, a vegetable stall owner put up a banner in the stall:
“Unite the workers in the whole world!” Anyone would notice that
the vegetable stall owner did not truly believe in that slogan; the
reason why he had to display the banner was only because he was
afraid of inviting trouble, and so he acted perfunctorily, to
maintain “social harmony”. This slogan was clearly hinted
by the one in authority; the most artful point was that the vegetable
stall owner need not expressly state his fear about the authorities;
he could even hide it with a lie: “‘Unite the workers in the
whole world’, what’s the problem with that?”
[26] English
translation: A totalitarian society is maintained by lies.
People live in lies and hypocrisy. They may not agree to the
lies, but as long as they pretend to agree, or at least remain
silent, they can live in the system. Those who choose to obey
may even take the initiative to meet the requirements of the system
to obtain benefits, in order to satisfy their own desire to power.
[27] English
translation: In the Chamber yesterday, all members of the LegCo took
their oaths. Some patriots in suits, representing the
privileged class, read the oaths aloud and openly, and completed the
ritual script, as if they were really to “solemnly and sincerely”
promise to serve the people. As a result, they became honorable
members of the Council, to act as hatchet men of the bigwigs to
suppress Hong Kong people, and can even hide it with a he: “To
serve the people as a Legislative Councillor, what’s the problem
with that?”
[28] English
translation: The core of the lie is the whole political system of the
SAR Government, which has legitimacy on the face of it, but actually
there is none! The whole Basic Law, the whole political system
together with the Chief Executive, have not been authorized by the
public will of the Hong Kong people, and are therefore fundamentally
illegal!
[29] English
translation: A fair and just Council was supposed to be the
manifestation of democracy, freedom and people's will. But in
Hong Kong, we only have birdcage-style semi-democracy; the various
manipulations and disqualification of candidates in this election,
trampled the only procedural fairness left. At the election of
the President of the LegCo, Andrew Leung’s and the Secretariat’s
handling of Leung’s nationality issue was like child’s play, as
there were, surprisingly, still a lot of doubtful points on the day
of polling. At the end Andrew Leung was “elected” in chaos,
but it was difficult to convince the public.
[30] English
translation: Yesterday, I read out the official oath word-by-word.
The oath became ninety-odd sentences devoid of any coherence, without
any combination, connection and meaning, so that the audiences could
not hear any sentence structure and tone. In this way, all
meaning was merely a guess resulting from the subjective judgment of
the audiences by making up the clauses themselves. This course of
action was to manifest the hypocrisy of the ritual. The
pro‑establishment camp including Andrew Leung, raved that any
members of the opposition camp who tried to obstruct Andrew Leung
from being elected as the President smoothly were “creating
troubles” and “causing damage to the Council”, but I want to
convey a message instead: fluent and sonorous oath is hypocritical, a
harmonious Council is also hypocritical.
[31] English
translation: Vaclav Havel said, to fight totalitarianism, the most
fundamental way is to smash the lies and hypocrisy that maintain the
totalitarianism. Only when everyone insist on not declaring
their stance in accordance with the conventions, and say their own
true thoughts, would it be possible for the high wall to be broken.
Yesterday was just a beginning, from now on I will walk with the Hong
Kong people, inside and outside of the Council, to strive to fight
against the hypocrisy of various institutional requirements, to
accomplish what Vaclav Havel said – living in truth, and to blaze a
trail to democratic self-determination together.
[32] English
translation: Lastly, the speech I made before reading out the
official oath was a more sincere version:
I,
Lau Siu Lai, solemnly and sincerely, pledge to the Hong Kong people
that: I, having entered the Council from the streets, will certainly
carry forth the spirit of self-determination of destiny in the
Umbrella Movement, walk with the Hong Kong people, connect the inside
and outside of the Council, to fight against totalitarianism.
We must live in truth, break the indifference and cynicism, look for
hope in the darkness, and blaze a trail to democratic
self-determination together. Tear down the high wall [for]
self-determination and self-reliance!
[33] English
translation: Ifthere is a 6-second pause in between each word, how
can you view them as one sentence? They could be ninety-odd pieces of
articles!
[34] The
underlined words being words added to the content of the prescribed
oath under section 16(d) of and Schedule 2to the ODO. The
words, translated into English means, “I will protect the justice
system in Hong Kong, fight for true democracy, and serve Hong Kong
for its sustainable development”.
[35] The
underlined words being words added to the content ofthe prescribed
oath, carrying the same translated meaning as that in Footnote 34
above.
[36] Translated
as: I will protect the justice system in Hong Kong, fight for true
democracy, and serve Hong Kong for its sustainable development.
[37] See
paragraphs 20, 24(3) and 26(2).
[38] See
paragraphs 42 - 44, 53(6) and 56 of Mr Yiu’s affirmation.
[39] Mr
Dykes did in the course of the hearing indicate that he might
consider making such an application after hearing Mr Mok’s reply
submissions to see if Mr Mok would provide any explanations as to why
the Plaintiffs had commenced the disqualification proceedings against
only the Defendants.
[40] It
should be noted that despite the clear purpose that these
supplemental submissions are only to deal with the stay applications,
Mr Lee has at paragraphs 6 - 13 of the written submissions
dated 17 March 2017 and paragraphs 5 - 7 of the reply
submissions dated 12 April 2017 made substantial further and new
submissions based on an argument of legitimate expectation to oppose
the substantive applications against Mr Leung under the judicial
review and the Originating Summons (in substance that the past
practices of the President and the Clerk in accepting the way and
manner in which Mr Leung and other LegCo members-elect had taken the
LegCo Oath in the past have created a legitimate expectation on the
part of Mr Leung that his present oath taking would not be treated as
unlawful. In the premises, he should be given prior notice for
any change in the benchmark for measuring the degree of solemnity
required for taking the LegCo Oath). This is clearly in breach
of the directions and should not be condoned. Mr Lee should not
be allowed to have a second bite of the cherry in his submissions.
The court therefore would disregard this part of the submissions.
In any event, the court would accept Mr Yu SC’s submissions set out
in the appendix to his written submissions dated 31 March 2017 to
reject the argument based on legitimate expectation on principal
ground that an expectation is not legitimate or cannot be
substantively enforced if the substantive enforcement would be
contrary to law.
[41] See
paragraph 3 of Mr Leung’s written submissions listing a total of 18
such Other Members‑Elect. Mr Law has identified seven
(which overlap with the 18 identified by Mr Leung) at paragraphs
25 - 26 of his affirmation. Ms Lau relies on the same
as identified by Mr Law (see paragraph 13 of Ms Lau’s written
submissions). Mr Yiu has identified five such Other
Members-Elect (which also overlap with the 18 identified by Mr Leung)
at paragraph 35 of his affirmation.
[42] See
paragraph 17 of Mr Law’s written submissions dated 17 March 2017,
and paragraph 22 of his reply submissions dated 12 April 2017.
[43] The
court would also grant retrospective leave for the filing of Mr Law’s
3rd affirmation
dated 12 April 2017.
[44] See
paragraphs 13 - 14 of Ms Lau’s written submissions dated
17 March 2017, and paragraphs 5 - 13 of her written
submissions dated 12 April 2017.
[45] See
paragraph 8 of Mr Yiu’s written submissions dated 17 March 2017,
and paragraphs 12 and 13 of the reply submissions dated 12 April
2017.
[46] See
paragraphs 2 and 5 of Mr Leung’s written submissions dated 17 March
2017 and paragraph 3 of the reply submissions dated 12 April 2017.
[47] See
paragraph 1(a) of Mr Leung’s written submissions.
香港特別行政區
高等法院原訟法庭
*****
|
||
憲法及行政訴訟
2016年
223
至
226
號
|
||
及
|
||
雜項案件
2016
年
3378，3379，3381
及
3382
號
|
||
本摘要由高等法院司法助理擬備，並非判決書的一部分
*****
新聞摘要
HCAL 223/2016 |
|
第一申請人 |
香港特別行政區行政長官 |
第二申請人 |
律政司司長 |
答辯人 |
立法會主席 |
利害關係人 |
羅冠聰先生 |
HCMP 3379/2016 |
|
原告人 |
律政司司長 |
被告人 |
羅冠聰先生 |
HCAL 223/2016的第一及第二申請人及HCMP 3379/2016的原告人代表大律師 |
資深大律師莫樹聯先生、大律師馬耀添先生及大律師孫靖乾先生 |
HCAL 223/2016的利害關係人及HCMP 3379/2016的被告人代表大律師 |
資深大律師戴啟思先生及大律師譚俊傑先生 |
HCAL 223/2016的答辯人 |
豁免出席聆訊 |
*** |
|
HCAL 224/2016 |
|
第一申請人 |
香港特別行政區行政長官 |
第二申請人 |
律政司司長 |
答辯人 |
立法會書記 |
利害關係人 |
梁國雄先生 |
HCMP 3382/2016 |
|
原告人 |
律政司司長 |
被告人 |
梁國雄先生 |
HCAL 224/2016的第一及第二申請人及HCMP 3382/2016的原告人代表大律師 |
資深大律師莫樹聯先生、大律師馬耀添先生及大律師孫靖乾先生 |
HCAL 224/2016的利害關係人及HCMP 3382/2016的被告人代表大律師 |
資深大律師李柱銘先生、大律師詹鋌鏘先生及大律師吳思諾女士 |
HCAL 224/2016的答辯人 |
豁免出席聆訊 |
*** |
|
HCAL 225/2016 |
|
第一申請人 |
香港特別行政區行政長官 |
第二申請人 |
律政司司長 |
答辯人 |
立法會主席 |
利害關係人 |
劉小麗女士 |
HCMP 3381/2016 |
|
原告人 |
律政司司長 |
被告人 |
劉小麗女士 |
HCAL 225/2016的第一及第二申請人及HCMP 3381/2016的原告人代表大律師 |
資深大律師莫樹聯先生、大律師馬耀添先生及大律師孫靖乾先生 |
HCAL 225/2016的利害關係人及HCMP 3381/2016的被告人代表大律師 |
資深大律師陳文敏先生、資深大律師潘熙先生及大律師黃宇逸先生 |
HCAL 225/2016的答辯人 |
豁免出席聆訊 |
*** |
|
HCAL 226/2016 |
|
第一申請人 |
香港特別行政區行政長官 |
第二申請人 |
律政司司長 |
答辯人 |
立法會主席 |
利害關係人 |
姚松炎先生 |
HCMP 3378/2016 |
|
原告人 |
律政司司長 |
被告人 |
姚松炎先生 |
HCAL 226/2016的第一及第二申請人及HCMP 3378/2016的原告人代表大律師 |
資深大律師莫樹聯先生、大律師馬耀添先生及大律師孫靖乾先生 |
HCAL 226/2016的利害關係人及HCMP 3378/2016的被告人代表大律師 |
資深大律師余若薇女士及大律師余卓穎女士 |
HCAL 226/2016的答辯人 |
豁免出席聆訊 |
*****
主審法官: |
高等法院原訟法庭法官區慶祥 |
聆訊日期： |
2017年3月1至3日 |
書面補充陳詞： |
2017年3月17、31日及4月12日 |
判案書日期： |
2017年7月14日 |
摘要：
1. 在本案中，法庭須要為以下的法律問題作出裁定：(a)羅冠聰先生（“羅先生”）、梁國雄先生（“梁先生”）、劉小麗女士（“劉女士”）及姚松炎先生（“姚先生”）在2016年10月12日的宣誓在法律上是否有效，以及(b)他們在法律上是否應被視為拒絕或忽略宣誓。羅先生、梁先生、劉女士及姚先生統稱為“被告人”。
2. 被告人均是2016年新一屆立法會的候任立法會議員。於2016年10月12日，他們在立法會秘書（“秘書”）面前進行立法會誓言。秘書為羅先生、梁先生及劉女士監誓，但是因為姚先生擅自更改誓言的形式，秘書表明他無權為姚先生監誓（“秘書的決定”）。
3. 於2016年10月18日，立法會主席（“主席”）裁定羅先生的宣誓為有效，而劉女士及姚先生的宣誓則為無效。不過，主席容許劉女士及姚先生重新宣誓（“主席的裁決”）。劉女士及姚先生分別於2016年11月2日及10月19日重新宣誓，而主席視他們的重新宣誓為有效。
4. 行政長官及律政司司長（統稱為“原告人”）向法庭提出申請，尋求多項濟助，當中包括：(a)要求命令推翻秘書的決定及主席的裁決，以及(b)要求宣布各被告人的宣誓均為無效，及取消各被告人就任或上任立法會議員的資格。
5. 依據《基本法》第104條（連同2016年11月7日全國人民代表大會常務委員會就此條文發出的解釋（“《解釋》”））的恰當詮釋、《宣誓及聲明條例》的條文、以及參考相關案例，法庭指出有關作出立法會誓言的法律規定有以下的原則。
(a) 準確地完全按照《宣誓及聲明條例》附表2所訂明的立法會誓言的形式及內容宣誓（“嚴格形式和內容規定”）
(b) 莊重及真誠地作出誓言（“莊重規定”）；
(c) 真誠相信及嚴格遵守誓言（“實質信念規定”）。
8. 第三，根據“嚴格形式和內容規定”，宣誓人必須準確及完整讀出法例訂明的誓言，不得讀出任何與訂明誓言用字不相符的言詞語句。所有加入在誓言中的其他言詞信息在法律上會被視為改變誓言的訂明形式，故屬違反“嚴格形式及內容規定”。
9. 第四，根據“莊重規定”，宣誓人必須以符合及相應於立法會宣誓場合的莊重態度宣誓。“莊重”的意思是莊嚴及正式。該態度必須反映及展示宣誓人對宣誓過程有適當的尊重，而且該態度必須反映出宣誓過程在憲法上是極奇重要的，以及彰顯宣誓人將致力遵行誓言的嚴肅及重要承諾。
11. 第六，宣誓人若在宣誓時擅自改變誓言的形式、內容及宣誓的方式，即屬觸犯《基本法》第104條，他所作出的誓言是為不合法及無效。該宣誓人將被視為拒絕或忽略宣誓。任何候任立法會議員拒絕或忽略宣誓，即在法律上自動喪失就任或上任立法會議員的資格。
(i) 在客觀評定中，法庭會根據宣誓人在作出立法會誓言時所採取的行為、態度及言詞，來決定該等行為、態度和言詞將會向一位合理人士所傳遞甚麼意思。宣誓人的主觀意圖或想法並不相干。
(ii)在客觀評定中，若宣誓人(a)在宣誓時客觀上故意採取的某些特定的態度、行為或言詞，而(b)該等特定的態度、行為或言詞從客觀看來並不符合宣誓的法律規定，該宣誓人在法律上將被視為拒絕或忽略宣誓。至於宣誓人是否故意違反相關的法律規定，並非裁定宣誓人是否拒絕或忽略宣誓的必要元素。
羅先生
14. 各方沒有爭議的是，羅先生正要在讀出誓言前，有以下一段開場白：“誓詞，英文係‘Affirmation’，佢拉丁文原意係使其更堅定更堅強。宣誓就係一個莊嚴嘅儀式，要我地向香港人承諾未來要知行合一，捍衛香港人嘅權利。但今日呢個神聖嘅儀式，已經淪為政權嘅工具，強行令民意代表屈服喺制度同埋極權之下。You
can chain me, you can torture me, you can even destroy this body, but
you will never imprison my mind.
我今日要完成必要嘅程序，但係唔代表我會屈服喺極權之下。香港市民永遠都係我地服務同埋團結嘅對象，我係絕對唔會效忠於殘殺人民嘅政權，我一定會堅持原則，用良知守護香港。希望在於人民，改變始於抗爭。”
(a) 客觀來看，羅先生是想藉著他的開場白，向合理人士傳遞兩項信息，(i)就是作出立法會誓言的規定，是制度及極權“逼使”羅先生作為當選議員去做的一項事情；及(ii) 中華人民共和國及香港特別行政區利用立法會誓言的規定作為政治工具，逼使他承諾效忠香港特別行政區及擁護《基本法》。
(b) 在這段開場白作為背景下去理解，羅先生把“中華人民共和國香港特別行政區”中的“國”字的聲調提高，在客觀上是要表達出他對中華人民共和國作為香港特別行政區的合法主權國的地位的質疑或不尊重。
(c) 本庭和上訴法庭早前已在另一案件中裁定，質疑或拒絕承認中華人民共和國作為香港的合法主權國，是與宣誓效忠香港特別行政區及擁護《基本法》的誓言，是互不相符並且是互相對立的。
(d) 基於這些原因，客觀來看，羅先生在作出立法會誓言的時候，並沒有表現出真正及忠實的意圖，他將會致力擁護、遵守及履行誓言中的責任。
(e) 此外，羅先生故意作出開場白及提高聲調，是沒有爭議的事實。因此，羅先生在法律上被視為於2016年10月12日被要求作出立法會誓言後，拒絕或忽略宣誓。
18. 此外，就羅先生而言，在他正要讀出立法會誓言前，隨即作出開場白，又在完成讀出立法會誓言後，即時作出結束詞。客觀來看，羅先生是有意傳遞開場白及結束詞中包含的言詞信息，作為其宣誓過程的一部分。因此法庭亦同意原告人的陳詞，羅先生所作出開場白及結束詞，並不符合在作出立法會誓言時的“嚴格形式和內容規定”。
19. 羅先生在其誓章中為他在宣誓過程中所做的事，提出了某些主觀解釋。這些解釋是屬於羅先生的主觀思考過程、想法及為本身行為所賦予的主觀含意的證據或事宜。法庭不考慮這些解釋，因為它們與羅先生的宣誓是否符合法律規定的客觀驗證標準並不相干。無論如何，即使法庭把相關解釋納入考慮，它們明顯地與在法庭席前提出的清晰及客觀的證據不相符。因此，羅先生的解釋並不影響客觀評定，亦不能取代法庭所裁定其行為的客觀含意。
20. 羅先生亦說，他作出立法會誓言時採用的方式是仿效過往某些立法會議員的做法，而該等做法皆獲主席或秘書接納為有效，故當他以其採用的方式宣誓時，並無故意違反法律規定。因此，他不應被裁定為拒絕或忽略宣誓。基於上文第13(ii)段述明的法律原則，法庭亦不接受他這方面的陳詞。
梁先生
22. 不爭議的事實是，在秘書邀請梁先生宣誓後，身穿寫有“公民抗命”字樣的黑色汗衫的梁先生便走向枱前，當時他右手拿着一把張開的黃色雨傘（上面寫上不同字句，包括“結束一黨專政”），左手拿着一塊展示“人大831決議”字樣的紙板，並同時以廣東話大叫口號。在他走到枱前之後，便用廣東話說：“雨傘運動！不屈不撓！公民抗命！無畏無懼！人民自主自決！無須中共批准！我要雙普選！梁振英下台！”然後斷斷續續地讀出立法會誓言。讀畢後，他再大叫另一句口號：“撤銷人大831決議！我要雙普選！”然後他放下雨傘，將一張寫有“人大831決議”字樣的紙張撕碎，拋向天花，然後離開。
26. 在梁先生的情況而言，手拿張開的雨傘、叫喊口號及撕碎寫有信息的紙張，皆與宣誓之真正目的無關。客觀上，對一個合理人士而言，這些誇張的行徑與行為顯然超出了在該場合所須有的莊嚴及尊重的合理範圍，而該莊嚴與尊重是須與宣誓場合所具有的嚴肅性及憲法重要性相應的。因此，梁先生在作出立法會誓言時的行為舉止，客觀來看並不符合“莊重規定”。
28. 梁先生也在其誓章中提出不同的解釋，稱他在宣誓的過程中作出那些簡短的陳述，是向他的選民表達自己的政治目標。他並非倡議港獨，而且在誓言中作出承諾是出自真心。這些解釋都是關於梁先生的思考過程、想法和為本身行為賦予主觀的含意。法庭並不認為這些主觀解釋與客觀評定有任何相干。無論如何，即使法庭把這些解釋納入考慮，它們也不會影響法庭認為他不符合“莊重規定”的結論，並且這些解釋實際上支持法庭的客觀看法，即認為梁先生試圖在宣誓中，納入及傳遞額外的言詞，是故違反了“嚴格形式和內容規定”。
29. 基於在上述第13(ii)段所指出的法律原則，法庭也不接受梁先生聲稱，他是依賴主席以往的裁決，接受梁先生本人及其他立法會議員過往的宣誓，藉以指稱他並沒有蓄意違反法律規定，故他沒有拒絕或忽略宣誓。同樣，法庭並不接受他的陳述，說應該以立法會處理其會議程序及辯論進行時為議員所訂的行事方式，作為衡量宣誓莊重性的基準。法庭認為兩者的性質和目的並不相同。
30. 因此，法庭的結論是，客觀地，梁先生於2016年10月12日獲邀宣誓時，拒絕及忽略作出立法會誓言。他應喪失上任議員的資格，而且無權聲稱以立法會議員的身分行事。而秘書決定接納梁先生所作的宣誓為有效，在法律上是錯誤的，應予以推翻。法庭給予原告人所尋求針對梁先生的濟助。
劉女士
31. 各方沒有爭議的是，劉女士獲邀作出立法會誓言後，但尚未讀出誓言的字句時，先說出一段開場白：“本人劉小麗謹此承諾，本人由街頭進入議會，定必秉承雨傘運動命運自主精神，與香港人同行，連結議會內外，對抗極權。我們要活在真誠磊落之中，打破冷漠犬儒，在黑暗中尋找希望，共同開創民主自決之路。推倒高牆，自決自強。”然後她緩慢地逐字讀出誓言，每字之間有明顯的停頓，長達6秒左右。劉女士共花了大約10分鐘才以這個方式讀完立法會誓言的全文。緊接讀完誓言全文後，劉女士說出一段結束詞“爭取全民退休保障，落實墟市政策，捍衛香港人生活尊嚴”。於2016年10月13日，劉女士在臉書（Facebook）刊登一篇文章說明她在宣誓過程中所作的行為。同日在蘋果日報刊登的一篇報導也登載了她的說明。
33. 法庭把相關的法律原則運用於本案的客觀事實上，同意原告人的陳詞，即劉女士的行為客觀上清楚顯示她並非真正和忠誠地作出承諾，她將致力擁護、遵守及履行立法會誓言中所表明的責任。劉女士把每字拆散、相隔6秒才讀出一字的宣誓方式，客觀上是對一名合理人士表達出她無意傳達立法會誓言的內容和承諾中所包含的意義。所以，客觀上，劉女士在宣誓過程中所持的態度和所用的方式清楚表示她無意履行立法會誓言所訂明的責任。而她自己在臉書的文章裏和蘋果日報的報導中亦確認了這一點。因此，劉女士的行為並不符合“實質信念規定”。
34. 法庭亦裁定劉女士違反了“嚴格形式和內容規定”。鑑於她在獲邀作出立法會誓言後，在讀出誓言之前立即作出開場白，其後在讀畢誓言後又即時作出結束詞，客觀看來，她有意在宣誓過程中把一些誓言以外的言詞信息（而該信息包含在開場白和結束詞裏）作為誓言的一部分傳遞開去。
36. 法庭重申這些關於她自己思考過程、想法和為本身行為賦予主觀意義的解釋，與客觀評定並不相干，不應把它們納入考慮之列。再者，法庭亦拒絕把它們視為有關的背景和情況，因為這些背景和情況不會是在劉女士宣誓時一般合理人士可以知道的事情。無論如何，即使法庭把它們列入考慮，該等解釋亦不足以取代法庭所裁定，從慢讀行為所帶出、明顯及無可置疑的客觀含義。
37. 劉女士顯然是故意以慢讀方式宣誓。因此，客觀地，她是拒絕或忽略作出立法會誓言，而她作出的誓言是不合法和無效的。法律上，她自那時起便喪失就任議員的資格。故此，秘書的決定和主席的裁決在法律上是錯誤的，應予以推翻。法庭給予原告人他們尋求針對劉女士的濟助。
姚先生
38. 各方沒有爭議的是，於2016年10月12日姚先生第一次作出立法會誓言時，他在誓言的中間部分加入和讀出這段額外字句“定當守護香港制度公義，爭取真普選，為香港可持續發展服務”。其後，秘書對姚先生說，因為姚先生在誓詞中加入額外字句，他是無權為他監誓的，並且要求姚先生按照法例訂明的格式重新宣誓。在重新宣誓時，姚先生又在誓言完結處加入相同的額外字句。秘書於是告訴姚先生他無權為他監誓。姚先生便回到座位。
41. 法庭裁定，客觀看來，姚先生第一次試圖宣誓時故意在立法會誓言的中間部分加入那些額外字句。法庭留意到，姚先生讀出那這些額外字句後短暫停頓，然後繼續讀出立法會誓言餘下的字句。法庭認為，基於那些額外字句是長達25字的完整句子，客觀上，姚先生在誓言中間完整地讀出整句額外字句，並繼續完成誓言其餘的字句，這是與姚先生應該蓄意如此讀出誓言的行為是一致的。從另一方面看，即使加入那些額外字句真是無心之失，在位於姚先生處境的合理人士在發現其錯誤時，定必重新由頭開始再讀誓言，而不會繼續讀出誓言餘下的字句。姚先生在加入那些額外字句後決定繼續讀出誓言餘下的字句，清楚證明了(至少在當時)他是故意用其方式加入和讀出那些額外字句。因此，姚先生在第一次嘗試宣誓時違反了“嚴格形式和內容規定”，並在他獲邀宣誓後拒絕或忽略作出立法會誓言。
42. 無論如何，法庭毫不猶疑裁定姚先生的第二次試圖宣誓亦為無效。姚先生第二次試圖宣誓時，秘書已警告他，如果加入額外字句，其宣誓便告無效。但他仍然在立法會誓言的訂明格式的完結處加入那些額外字句。他讀完立法會誓言的訂明字句的最後一句後以即時、連貫、和暢順方式讀出那些額外字句。客觀看來，姚先生是有意使他讀出的額外字句被理解為誓言的一部分，這違反了“嚴格形式和內容規定”。因為姚先生故意以其方式讀出那些額外字句，他是拒絕或忽略作出立法會誓言。他第二次試圖宣誓後便應喪失就任資格。
43. 姚先生聲稱他並沒有拒絕作出立法會誓言。他解釋他在第一次嘗試宣誓時錯誤地把額外字句加入誓言中間，而無論如何，他誤解了法律，以為在沒有改變實質承諾的情況下，法律是容許他加入額外字句的。他聲稱他並不是故意違反宣誓法律。
44. 法庭不接受姚先生的解釋，因為：(a)正如上述第13(ii)段指出，在客觀評定下，故意違反法律並不是必要元素；(b)這些主觀解釋都是關於姚先生自己的思想過程、想法和為本身行為所賦予主觀含意，與客觀評定並不相干；(c)無論如何，姚先生的解釋支持法庭的結論，即他違反了“嚴格形式和內容規定”，因為他自行承認他是故意在誓言完結處加入額外字句的。
45. 因此，姚先生在2016年10月12日作出立法會誓言時沒有符合“嚴格形式和內容規定”。在法律上，客觀地，他拒絕或忽略作出立法會誓言。主席容許姚先生重新宣誓的決定是錯誤的。主席的裁決應被推翻。法庭給予原告人他們尋求針對姚先生的濟助。
被告人的擱置申請
46. 在聆訊的最後一日，被告人以濫用司法程序為原因申請永久擱置或撤銷此等針對他們的法律程序。他們指稱，原告人展開此等針對他們的法律程序，是出於原告人不可告人的政治考慮或是其他別有用心的目的。被告人聲稱，尤其明顯的是，在本屆立法會有其他候任議員也據稱用相同的態度和方式作出立法會誓言，但原告人沒有解釋為何沒有展開針對他們的取消資格法律程序。
(a) 法庭注意到，政府已早於2016年12月發出公告，說明展開此等法律程序的決定純粹是基於法律意見，包括獨立的大律師的法律意見，並沒有滲雜任何政治考慮。
(b) 被告人指出，政府是有“政治動機”才只針對他們展開法律程序，而不向其他人士提出訴訟，目的是使到這些民主派人士喪失資格，從而摧毀民主派及其他非建制派在立法會地方選區議席的大多數比例。被告人亦呈述，在此情況下，一項恰當的推斷是，此等針對他們的法律程序只是因為政府屈服於不當的政治壓力所致。法庭認為此等指稱頂多只屬揣測，而且無論如何這結論是不合邏輯的，因為這個理論不能合理地解釋為何原告人選擇只是針對本案的四名被告人而不針對其他人，當該等其他人也可概括地視為“民主派”或非建制派。
(c) 此外，案例強調，法律上有一項重要和清晰的區分，就是運用司法程序取得有利的判決，和不當地利用司法程序，從而為達到制定有關司法程序目的以外的目的。明顯地，原告人控告被告人，是有意圖使他們受到正式審判，從而尋求原告人所申索的濟助。就算取消被告人的資格可以達到司法之外的某些目的（雖然法庭並不接受此說法），這並不構成濫用司法程序，因為指稱的目的是要取得法律所容許的結果。
(d) 當上述各點作為整體地衡量，被告人無法達到其舉證責任，以證明展開這些針對他們的法律程序是濫用司法程序，並是由於原告人為了達到別有用心的目的或政治動機而作出的。
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