Colocation arrangement ruled legally sound

Top News | Phoenix Un 14 Dec 2018

The arrangement that allows mainland officials to impose national laws within parts of the SAR's new rail terminus in West Kowloon is legally sound.

That was the ruling yesterday by Justice Anderson Chow Ka-ming of the Court of First Instance, with his written judgment on judicial review applications by ousted legislators "Long Hair" Leung Kwok-hung and Sixtus Leung Chung-hang, "king of judicial reviews" Kwok Cheuk-kin and social worker Hendrick Lui Chi-hang.

They had challenged the constitutionality of the arrangement that gives powers to Chinese immigration, customs and health officers in the mainland port area of the West Kowloon Express Rail terminus.

The applicants had argued that the arrangement known as colocation violated the Basic Law's Article 18, which states that no national laws can be applied in the SAR unless listed in an annex.

They also challenged the legal status of the National People's Congress Standing Committee's decision in December last year that colocation complied with the Basic Law.

Chow wrote that the NPCSC's "free-standing" power of interpretation of the Basic Law is respected and accepted by Hong Kong's courts. He also accepted the expert evidence of Wang Lei of Peking University's Faculty of Law that the NPC has the power to decide if a particular matter fits within the one country, two systems principle and also the Basic Law.

The NPCSC, he added, can exercise supervisory power on whether any arrangement complies with the Basic Law and issue "decisions."

Chow admitted that it could be argued with considerable force that the Colocation Ordinance passed by the Legislative Council in June after the NPCSC decision was inconsistent with Basic Law articles such as Article 18.

But he agreed with the argument of senior counsel Benjamin Yu Yuk-hoi, representing the Hong Kong government, that the establishment of the mainland port was not prohibited by the Basic Law.

He wrote that colocation was not contemplated when the Basic Law was promulgated in 1990.

So to view the Basic Law as prohibiting colocation was "a failure to recognize the Basic Law as a 'living instrument.'"

He added: "As submitted by Mr Yu, the establishment of the mainland port area and the setting up and application of customs, immigration and quarantine control at that port is itself a manifestation of the exercise of a high degree of autonomy by Hong Kong." And the benefits the arrangement brought to the overall interests of Hong Kong was a relevant consideration on whether colocation complied with the Basic Law.

He concluded that on the basis of the NPCSC decision the Colocation Ordinance was consistent with the Basic Law.

The four applicants did not need to pay the legal costs, but Sixtus Leung must bear the expenses of Legislative Council president Andrew Leung Kwan-yuen, who was listed as one of the respondents.

That was because Chow had found that Sixtus Leung dragged Andrew Leung into the case unnecessarily.

Sixtus Leung, who earlier said there was not much chance of the four losing the case, told The Standard he was surprised by the decision.

He added: "If Chow is correct that anything the Basic Law does not prohibit can be done then we can always hold a referendum."

Sixtus Leung also said he needed to consult his lawyers on what could be his next step, but applicants Kwok and "Long Hair" Leung said they had already decided to appeal.

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