FAMV Nos.

7, 8, 9 and 10 of 2017

FAMV No. 7 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 225 OF 2016)

____________________

BETWEEN

CHIEF EXECUTIVE OF THE 1st Applicant

HONG KONG SPECIAL ADMINISTRATIVE (1st Respondent)
REGION

SECRETARY FOR JUSTICE 2nd Applicant

(2nd Respondent)

and

THE PRESIDENT OF THE LEGISLATIVE Respondent

COUNCIL

and

SIXTUS LEUNG CHUNG HANG 1st Interested Party

YAU WAI CHING 2nd Interested Party

(Applicant)
 - 2 -

____________________

FAMV No. 8 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 226 OF 2016)

____________________

BETWEEN

THE CHIEF EXECUTIVE OF THE HKSAR 1st Plaintiff

(1st Respondent)

SECRETARY FOR JUSTICE 2nd Plaintiff

(2nd Respondent)
and

YAU WAI CHING 1st Defendant

(Applicant)

SIXTUS LEUNG CHUNG HANG 2nd Defendant

PRESIDENT OF THE LEGISLATIVE COUNCIL 3rd Defendant

____________________
 - 3 -

FAMV No. 9 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 224 OF 2016)

____________________

BETWEEN

CHIEF EXECUTIVE OF THE 1st Applicant

HONG KONG SPECIAL ADMINISTRATIVE (1st Respondent)
REGION

SECRETARY FOR JUSTICE 2nd Applicant

nd
(2 Respondent)
and

THE PRESIDENT OF THE LEGISLATIVE Respondent

COUNCIL

and

SIXTUS LEUNG CHUNG HANG 1st Interested Party

(Applicant)

YAU WAI CHING 2nd Interested Party

____________________
 - 4 -

FAMV No. 10 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 227 OF 2016)

____________________

BETWEEN

THE CHIEF EXECUTIVE OF THE HKSAR 1st Plaintiff

(1st Respondent)

SECRETARY FOR JUSTICE 2nd Plaintiff

(2nd Respondent)
and

YAU WAI CHING 1st Defendant

SIXTUS LEUNG CHUNG HANG 2nd Defendant

(Applicant)

PRESIDENT OF THE LEGISLATIVE COUNCIL 3rd Defendant

____________________

Appeal Committee : Chief Justice Ma, Mr Justice Ribeiro PJ and

Mr Justice Fok PJ

Date of Hearing and

25 August 2017
Determination :
Date of Reasons for
1 September 2017
Determination :
 - 5 -

__________________________________

REASONS FOR DETERMINATION

__________________________________

The Appeal Committee:

Introduction
1. These applications for leave to appeal to the Court of Final
Appeal arise out of proceedings concerning the taking of the oath of a
Legislative Councillor by the two applicants, Sixtus Leung Chung Hang and
Yau Wai Ching (“Leung” and “Yau” respectively), following the general
election in September 2016 and the consequences of their purporting to do so.
As will be seen, it was determined by the President of the Legislative Council
(“Legco”) that their actions did not constitute a valid taking of the requisite
oath and he decided that they should be given a further opportunity to do so.
Before they were able to do so, however, these proceedings were commenced
by the then Chief Executive and the Secretary for Justice, the material
question being whether in the circumstances Leung and Yau were entitled to
re-take their oaths. The Court of First Instance concluded that they were not
and made declarations as to the invalidity of their oaths and of their
disqualification from assuming office as members of Legco and acting as
such. That decision was affirmed on appeal and has led to the applications
now before us.

2. These proceedings have received widespread publicity and the

circumstances leading to them have provoked strong expressions of opinion
and comment amongst many members of the community. Be that as it may
(and the Court’s role is not to enter into matters of political debate), the sole
 - 6 -

legal issue for the Appeal Committee on these applications has been whether
the criteria for the grant of leave to appeal have been satisfied. As provided
by the Court’s Ordinance, such leave will only be granted if the Court is of
the opinion that the question involved in the appeal is one which, by reason of
its great general or public importance, or otherwise, ought to be submitted to
the Court for decision.1 It is not enough that an important question is raised,
though, since it must also be reasonably arguable that the answer to that
question will affect the judgment under appeal.2

3. It was submitted on behalf of the applicants that the proposed

appeal does indeed involve various questions which, by reason of their great
general or public importance, or otherwise, ought to be submitted to the
Court. However, having considered the written and oral submissions
advanced on behalf of the applicants, we had no doubt that the threshold for
leave to appeal is not met and that, accordingly, the applications must be
dismissed. In summary, although the questions touch upon issues of law of
general and public importance, there is no reasonably arguable basis for
disturbing the judgments under appeal. At the conclusion of the hearing, we
therefore dismissed the applications for leave to appeal indicating that we
would provide our reasons for doing so in writing in due course, which we
now do.

Background leading to the proceedings below

4. Article 104 of the Basic Law of the Hong Kong Special
Administrative Region (“BL104”) provides:

“When assuming office, the Chief Executive, principal officials, members

of the Executive Council and of the Legislative Council, judges of the

1
Hong Kong Court of Final Appeal Ordinance (Cap.484), s.22(1)(b).
2
Li Tak Ming v Secretary for Justice, FAMV 18/1998 (23 November 1998) at p.4; Chan Yu Nam v
The Secretary for Justice, FAMV 39/2011 (18 January 2012) at [6].
 - 7 -

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.”

5. The Oaths and Declarations Ordinance (Cap.11) (“the

Ordinance”) stipulates, in section 16, that, among other oaths, that referred to
in the Ordinance as the Legislative Council Oath (“the Legco oath”) shall be
in the form set out in Schedule 2 and the oath in question is at Part IV of
Schedule 2 in the following terms:

“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.”

6. Materially, section 19 of the Ordinance provides that:

“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.”

7. Furthermore, section 21 of the Ordinance provides for the

consequence of non-compliance in the following terms:

“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.”
 - 8 -

8. Leung and Yau were respectively elected to be members of

Legco in the general election held in September 2016. They were duly asked
to take the Legco oath before the Clerk to Legco at its meeting on 12 October
2016. Instead of taking the Legco oath in the form stipulated in Schedule 2 to
the Ordinance, each of them made a number of material alterations to it and
accompanied their words by various actions, described by Au J in paragraph
[5] of his judgment in the Court of First Instance as follows:

“(1) Each of them used the term ‘Hong Kong nation’ right at the outset
of oath-taking:

(a) Mr Leung declared in open public that he shall keep guard

over the interest of the Hong Kong nation;

(b) Ms Yau declared in open public that she will be faithful

and bear true allegiance to the Hong Kong nation.

(2) The Clerk interrupted each of them and said he could not
administer their respective oath-taking as that was not taken in
compliance with the LegCo Oath.

(3) Each of them then purported to take the oath again.

(4) In doing so, each of them mis-pronounced the word ‘China’

consecutively for three times, as ‘Geen-na’ or ‘Sheen-na’ (‘支那’).

(5) Further, Ms Yau mis-pronounced ‘People’s Republic of China’ as

‘the People’s Refucking of Sheen-na’ consecutively for three
times.

(6) Each of them also intentionally unfolded and displayed a blue

banner bearing the words ‘HONG KONG IS NOT CHINA’.

(7) Mr Leung adopted a contrast in the tone of his voice between his
initial words before the interjection by the Clerk and his
subsequent words after such interjection (which shows a
dismissive and not serious attitude). He further crossed the index
and middle fingers of his right hand over the Bible in seeking to
take the oath again after the initial interjection by the Clerk.

(8) Ms Yau emphasized ‘Hong Kong’ with a distinctly loud tone of

voice but adopted a lower voice and hurried manner for the rest of
the oath.”
 - 9 -

9. In the light of this, on 18 October 2016, the President decided

that the oath taken by each of Leung and Yau on 12 October 2016 was
invalid. However, his decision went on to permit each to re-take their oaths at
the next meeting of Legco on 19 October 2016 if they requested to do so in
writing. Leung and Yau both requested to do so. However, events were then
overtaken by these legal proceedings which were commenced on 18 October
2016.

10. There were two sets of proceedings below which were heard
together. In HCMP 2819 of 2016, the Chief Executive and Secretary for
Justice sought declaratory and injunctive relief against Leung and Yau in
relation to their respectively entering on the office of Legco member; and, in
HCAL 185 of 2016, the Chief Executive and Secretary for Justice sought
relief to quash the President’s decision of 18 October 2016 and to declare that
Leung and Yau’s oaths could not be re-administered.

The Interpretation of BL104 by the Standing Committee

11. On 7 November 2016, after the hearing of the proceedings in the
Court of First Instance but before judgment was given, the Standing
Committee of the National People’s Congress (“NPCSC”) of the People’s
Republic of China (“PRC”) exercised its power under Article 158(1) of the
Basic Law 3 to interpret BL104 (the “Interpretation”). The Interpretation
states 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

3
BL158(1), which provides: “The power of interpretation of this Law shall be vested in the Standing
Committee of the National People’s Congress.”
 - 10 -

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.
 - 11 -

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.”

The decisions below

12. In the Court of First Instance, Leung and Yau opposed the
proceedings against them on a number of grounds, not all of which are sought
to be pursued in this Court. First, they invoked the non-intervention principle
to argue that the court should not intervene in respect of the President of
Legco’s decision that they be allowed to re-take their oaths. Second, they
argued that their conduct in the oath-taking process is immune from suit.4
Third, they contended that section 21 of the Ordinance does not operate
automatically as a matter of law to disqualify them as members of Legco.
Fourth, they contested the Chief Executive’s locus to bring these proceedings.
In his judgment dated 15 November 2016, Au J rejected each of Leung and
Yau’s grounds of opposition and held in favour of the Chief Executive and
Secretary for Justice, granting the declaratory and injunctive relief sought.

13. The Judge reached his conclusions independently of the

Interpretation 5 but considered Leung and Yau’s submissions on it, which
were: that under paragraph 2(4) of the Interpretation the person administering
the oath is the final arbiter to determine the validity of an oath and its
compliance with BL104 and the Ordinance, hence supporting reliance on the
non-intervention principle; that, properly construed as a matter of common

4
Under Article 77 of the Basic Law and sections 3 and 4 of the Legislative Council (Powers and
Privileges) Ordinance (Cap.382).
5
CFI Judgment at [120] and [125].
 - 12 -

law, the Interpretation went further than the meaning of BL104 and so was
not in compliance with BL158 and not binding on the court; and that the
Interpretation was effectively an amendment of BL104 and so had no
retrospective effect. He rejected their reliance on the Interpretation in support
of the non-intervention principle and held that it was not necessary for him to
determine the other contentions in view of his conclusions on the issues in
favour of the Chief Executive and Secretary for Justice without reference to
the Interpretation.6

14. Leung and Yau appealed to the Court of Appeal essentially

repeating the arguments advanced at first instance. The Court of Appeal
(Cheung CJHC, Lam VP and Poon JA) unanimously rejected those arguments
and, by their judgment dated 30 November 2016,7 dismissed their appeals.
By a further judgment dated 16 January 2017, the Court of Appeal dismissed
Leung and Yau’s applications for leave to appeal to this Court.

15. It is important to emphasise one particular matter that arises from

the decisions below, which is the finding of fact by Au J that, when they
purported to take the Legco oath on 12 October 2016, Leung and Yau each:

“… manifestly refused (and thus declined) to solemnly, sincerely and truly

bind themselves to uphold the BL or bear true allegiance to the Hong
Kong Special Administrative Region of the People’s Republic of China.
Alternatively, at the least, they must have wilfully omitted (and hence
neglected) to do so.”8

The Court of Appeal affirmed this finding, holding that:

“On the facts, there can be no dispute that both Leung and Yau have
declined respectively to take the LegCo Oath. They have put forward no
argument to dispute this. Nor can they. There can be no innocent
explanation for what they uttered and did on 12 October 2016. What has

6
CFI Judgment at [123]-[125].
7
CACV 224, 225, 226 & 227/2016, Judgment dated 30 November 2016 (“CA Judgment”).
8
CFI Judgment at [46], affirmed by the Court of Appeal in the CA Judgment at [41].
 - 13 -

been done was done deliberately and intentionally. This conclusion,

reached by the judge after careful consideration, is unassailable.”9

The present applications

16. By notices of applications dated 13 February 2017, Leung
(FAMV 9 and 10 of 2017) and Yau (FAMV 7 and 8 of 2017) have renewed
their applications for leave to appeal to the Appeal Committee, contending
that their proposed appeals raise questions of law which, by reason of their
great general or public importance, or otherwise, ought to be submitted to the
Court for decision. Although not in identical terms, the questions of law
sought to be raised by each of the applicants’ respective notices of application
engage: (1) the issue of the applicability of the non-intervention principle, (2)
the proper construction of section 21 of the Ordinance, and (3) the ambit and
effect of the Interpretation. In addition, Yau raises a question concerning the
proper construction of certain provisions of the Legislative Council Ordinance
(Cap.542) which relates to the question of whether disqualification for
declining or neglecting to take the Lego oath is automatic.

The non-intervention principle

17. In Leung Kwok Hung v President of the Legislative Council
(No.1), 10 the Court of Final Appeal acknowledged, 11 as a common law
doctrine, the doctrine of the separation of powers and, within it, the
established relationship between the legislature and the courts, including the
principle that the courts will recognise the exclusive authority of the
legislature in managing its own internal processes in the conduct of its
business, in particular its legislative processes. The Court also acknowledged,

9
CA Judgment, per Cheung CJHC, at [41].
10
(2014) 17 HKCFAR 689.
11
Ibid. at [28].
 - 14 -

as a corollary to this, the proposition that the courts will not intervene to rule
on the regularity or irregularity of the internal processes of the legislature but
will leave it to determine exclusively for itself matters of this kind: this is the
non-intervention principle.

18. In these applications, Leung and Yau rely on the non-

intervention principle to challenge the proceedings against them and to
contend that, the President of Legco having decided that they should be
allowed to re-take their oaths, it was not for the courts to interfere with that
decision. They seek leave to appeal in respect of the following questions
relating to this principle:

(1) Leung’s Questions (1) and (2):

“(1) Does the constitutional principle of judicial non-
intervention in the internal affairs of LegCo apply to the Ruling of
the President of LegCo to allow the Applicant a further opportunity
to take the LegCo Oath?”

“(2) If the answer to Question (1) is negative, what are the

respective roles of the oath administrator and the Court in
determining whether a LegCo member has ‘decline[d] or
neglect[ed] to take an oath duly requested’ under section 21 of the
ODO and in determining whether to allow the LegCo Member a
further opportunity to take the Oath? In particular, what is the
extent of review by the Court?”

(2) Yau’s Questions (2) and (3):

“(2) Whether the principle whereby the LegCo has exclusive
control over the conduct of its own affairs extends to the matter of
oath-taking by legislators within the LegCo as required by the
provisions of the ODO and in particular, whether the LegCo may
by its internal procedures and practice control the manner of such
oath-taking.”

“(3) Whether in relation to such oath-taking within the LegCo,

the purpose of which is to have the legislators sworn, the court
should not intervene unless it is necessary for the protection of the
constitutional rights of the Hong Kong Permanent Residents who
voted for a duly elected legislator to take part in the conduct of
 - 15 -

public affairs through their freely chosen representative and of the

constitutional rights of a duly elected legislator under Basic Law
Articles 39, 77, 78, Article 25 of the International Covenant on
Civil and Political Rights and Article 21 of the Bill of Rights
against the consequences of a decision by the President in relation
to such oath-taking.”

19. It is important to recognise the proper scope of the principle of

non-intervention. In Leung Kwok Hung v President of the Legislative Council
(No.1), the context was the appropriateness of court intervention in the
legislative process where the President of Legco had made a decision in
relation to the length of debate on a bill which had been the subject of
attempts to filibuster it. Even in that context, the Court stated that:

“In this respect it is important to recognise that the principle of non-

intervention is necessarily subject to constitutional requirements. The
provisions of a written constitution may make the validity of a law depend
upon any fact, event or circumstance they identify, and if one so identified
is a proceeding in, or compliance with, a procedure in the legislature the
courts must take it under its cognizance in order to determine whether the
supposed law is a valid law.”12

20. Hence, the Court concluded, in answer to the issue of whether

Article 73(1) of the Basic Law mandated the exercise of jurisdiction by the
Hong Kong courts to ensure compliance with the Rules of Procedure of
Legco (“the Rules of Procedure”) in its legislative processes, that:

“… although art.73(1) does not make compliance with the Rules essential
to the validity of the enactment of a law by LegCo and that it is for LegCo
itself to determine its own procedures and how they will be applied, the
courts will exercise jurisdiction to determine the existence of a power,
privilege or immunity of LegCo. We also arrived at the conclusion that the
courts will exercise jurisdiction to determine the existence of a power,
privilege or immunity of the President of LegCo. We arrived at this
conclusion in the light, not only of art.73(1), but also of the provisions of
art.72 of the BL and the important powers and functions which it confers
on the President, particularly the power to ‘preside over meetings’. The
courts, however, will not exercise jurisdiction to determine the occasion or

12
Ibid. at [32] (footnotes omitted).
 - 16 -

the manner of exercise of any such powers, privileges or immunities either

by LegCo or the President.”13

21. In the present context, the principle of non-intervention cannot

apply in respect of the court’s duty to rule on the question of compliance with
the constitutional requirements of BL104. In the exercise of their judicial
power conferred by the Basic Law, it is the duty of the courts of the Hong
Kong Special Administrative Region, as a matter of obligation and not
discretion, to enforce and interpret that law: Ng Ka Ling & Others v Director
of Immigration (1999) 2 HKCFAR 4 at 25H-I. BL104 gives rise to a
constitutional duty on members of Legco to take an oath to swear to uphold
the Basic Law and to swear allegiance to the Hong Kong Special
Administrative Region. This is clear from the terms of BL104 itself but is
reinforced by paragraph 2 of the Interpretation. Although the precise terms of
the oath to be taken are not expressly set out in BL104, the provision imposes
a duty to swear “in accordance with law”. That law is the Ordinance, sections
16 and 19 and Schedule 2 of which stipulate the form of the Legco oath that
members are required to take and also provides, by section 21, that certain
consequences will attach to a person who declines or neglects to take that oath
when duly requested to do so.

22. In the circumstances, by reason of the constitutional requirement

in BL104, the courts are plainly duty bound to consider the question of
whether Leung and Yau did each duly take the Legco oath on 12 October
2016 and, if not, with what consequences, and the non-intervention principle
does not preclude such judicial inquiry. This conclusion is reinforced by the
fact that it has not been contended by either Leung or Yau that any of sections
16, 19 or 21 of the Ordinance are generally unconstitutional. Furthermore,

13
Ibid. at [43].
 - 17 -

the Interpretation provides explicitly that the taking of the Legco oath is a
legal prerequisite to taking up office and that a person who declines to take
the oath is disqualified from assuming office.

23. It was contended, on behalf of Leung, that because there are no

specific constitutional requirements in BL104 relating to the manner in which
the Legco oath is taken, the general principle of non-intervention applies and
it is for the President of Legco, and not the courts, whether to allow him a
second opportunity validly to take that oath. Similarly, on behalf of Yau, it
was contended that the procedural arrangements for the taking of the Legco
oath are part of the internal processes of Legco and governed by the Rules of
Procedure, so that it is a matter for the President of Legco to decide if and
when she should re-take her oath. Alternatively, Yau contended that, if the
non-intervention principle does not apply, the procedural decision of the
President of Legco (to permit her to re-take her Legco oath) should be
reviewable by the courts only where necessary for the protection of the
constitutional rights of a Hong Kong permanent resident who voted for a duly
elected legislator.

24. These submissions are untenable and the same submissions in

substance were rightly rejected by the courts below. As explained above,
BL104 imposes a constitutional requirement on a member of Legco validly to
take the Legco oath. The question of whether that has been done, when
properly raised, is a matter into which the courts are duty bound to inquire.
None of the questions sought to be raised by Leung or Yau in respect of the
non-intervention principle are reasonably arguable or give rise to a reasonably
arguable ground of appeal.
 - 18 -

The proper construction of section 21 of the Ordinance and whether

disqualification is automatic
25. Section 21 of the Ordinance is a legislative provision mandated
by the constitutional requirement in BL104 and provides for the consequence
where a member of Legco declines or neglects to take the Legco oath. It has
not been contended that it does not meet the constitutional requirement of
legal certainty or that it does not constitute a provision “in accordance with
law” within BL104.

26. Instead, Leung and Yau argue that section 21 of the Ordinance
should not be construed as requiring a member of Legco who declines or
neglects to take the Legco oath to vacate his office automatically by operation
of law and seek to raise the following questions relating to the interpretation
of section 21 of the Ordinance:

(1) Leung’s Questions (3) and (4):

“(3) On the proper construction of section 21(a) of the ODO, is
vacation of office automatic by operation of law, or does the
provision confer a discretion and/or requires the office-holder to
vacate the office?”

“(4) If section 21(a) of the ODO or Article 104 of the BL

otherwise prohibits the President of LegCo from allowing a LegCo
Member to have a further opportunity to take the Oath, would this
breach the constitutional requirement of proportionality, having
regard to the rights of the LegCo Member and the electors of his
constituency under Article 26 of the BL?”

(2) Yau’s Questions (4) and (5):

“(4) Whether a legislator is to be adjudged as having declined or
neglected to take an oath which he is required to take pursuant to section 21
of the ODO by reference to his solemnity or lack thereof, there being no
express requirements in the ODO or in the Rules of Procedure or practice of
the LegCo as to the conduct or manner of taking the oath and/or by
reference to his sincerity or lack thereof in light of his words or conduct at
the time of oath-taking.”
 - 19 -

“(5) Whether a legislator determined to have declined or neglected to

take an oath which he is required to take pursuant to section 21 of the ODO
is ‘ipso facto’ automatically disqualified from being a LegCo member or
automatically ceases to hold office as a LegCo member.”

27. In addition, Yau raises a question (Question (6)) concerning the

construction of section 73 of the Legislative Council Ordinance (Cap.542),
which is relied upon as an allied argument to those advanced on her behalf on
the construction of section 21 of the Ordinance, in these terms:

“(6) Whether on the proper construction of section 73 of the LCO, the

circumstances in which a person is disqualified from acting as a Member
are confined to the circumstances provided for in section 15 of the LCO.”

28. It is important to recognise that any question as to the

interpretation of section 21 of the Ordinance arises, in the present cases, in the
context of Leung and Yau having been found to have manifestly refused and
wilfully omitted (and so, in the language of section 21, to have declined and
neglected) to take the Legco oath when requested to do so. That finding of
fact, as already noted above, cannot reasonably be contested. In the
circumstances, the arguments advanced on behalf of Leung and Yau that
section 21 of the Ordinance is not intended to disqualify a member of Legco
who inadvertently omits some words of the Legco oath or who mistakenly
reads the wrong oath are simply not engaged on the present facts. In such a
situation, the oath taker would not have declined or neglected to take the
requisite oath and the President of Legco would be acting lawfully in
requesting the member to re-take the Legco oath at another sitting of Legco.
On the other hand, where a member has been incontrovertibly found by a
court to have declined or neglected to take the Legco oath, as in the present
case, there is no discretion or judgment to be exercised by the President of
Legco.
 - 20 -

29. Such a conclusion on the effect of section 21 of the Ordinance is

consistent with BL104 as construed in light of the Interpretation (in particular
paragraph 2(3) thereof) and also, independently, on the proper construction of
section 21 itself in the light of its context and purpose. This was the clear
conclusion of both Au J14 and the Court of Appeal15 and we do not consider it
to be reasonably arguable that their construction of section 21 of the
Ordinance is wrong.

30. Yau’s argument that section 21 of the Ordinance does not impose
a requirement of solemnity is without substance and not reasonably arguable.
Construed in the light of its context and purpose, which include the provisions
of BL104, it is plainly to be implied that the requirement to take the Legco
oath is a requirement to take that oath in an objectively solemn manner. This
is amply supported by: the wording of the oath itself (see above); the
provisions concerning the normal manner of administration of oaths in
general (section 5 of the Ordinance); and, where a person objects to being
sworn, the need for an affirmation in lieu of an oath which by its express
terms is to be taken “solemnly, sincerely, and truly” (section 7 of the
Ordinance). In any event, the requirement for solemnity in the taking of the
Legco oath is now also expressly stipulated in paragraphs 2(2) and 2(3) of the
Interpretation which (as discussed below) is binding on the courts of the Hong
Kong Special Administrative Region.

31. Leung’s argument that the words “who declines or neglects to

take an oath” should be interpreted so that a person who fails to take a valid
oath, but is willing to do so with minimal delay, neither “declines or neglects”
for the purposes of section 21 of the Ordinance since any broader

14
Section D3 at [92] to [100] of the CFI Judgment.
15
CA Judgment at [42] to [44].
 - 21 -

interpretation would conflict with the principle of proportionality must

similarly be rejected as not reasonably arguable since we can see no basis for
such a construction and no unconstitutionality requiring the provision to be
read down. On the facts of the present case, Leung and Yau manifestly
refused and wilfully omitted, and therefore declined and neglected, to take the
Legco oath. There is no reasonable basis for the argument that
disqualification in these circumstances amounts to a disproportionate
interference with any constitutional rights.

32. Yau’s argument in reliance on section 73 of the Legislative

Council Ordinance (Cap.542) does not assist her. We do not accept that it is
reasonably arguable that the scope and effect of section 21 of the Ordinance is
excluded by the existence of other circumstances and procedures by which a
member of Legco can be disqualified from office.

The Interpretation
33. In respect of the Interpretation, Leung and Yau seek to raise the
following questions by way of appeal:

(1) Leung’s Question (5):

“(5) Whether the Interpretation alters the legal position in this case.
The following legal issues arise:

(a) Should the Court give the narrowest possible meaning to the
Interpretation given that it is an extraordinary power which
conflicts with normal principles of the separation of powers by
telling a Court how to interpret a constitutional document?

(b) Does ‘determined’ in the final sentence of paragraph 2(4) of the

Interpretation mean only by a decision of the President of LegCo
(see (1) above)?

(c) Does the Interpretation prohibit a second opportunity to take the

Oath, whatever the circumstances (an inadvertent stumbling over
the words?) and however disproportionate that would be?
 - 22 -

(d) If the Interpretation does allow for a second opportunity in some

circumstances, who decides whether to allow such a second
opportunity?

(e) Does the Interpretation have retrospective effect, however unfair

that may be in the circumstances of this case?

(f) Does the Interpretation amount to an ‘amendment’ of the BL

without complying with the prescribed procedure under Article
159 of the BL, so that the Interpretation is not made ‘in accordance
with the provisions of the Basic Law and the procedure therein’
and the courts of Hong Kong have a duty to declare it to be invalid
according to the principles stated in Ng Ka Ling v Director of
Immigration (1999) 2 HKCFAR 4, 26A-B and Ng Ka Ling v
Director of Immigration (No.2) (1999) 2 HKCFAR 141, 142D-E?

(g) Do paragraphs 1, 2(3) and 2(4) of the Interpretation (or any part
thereof) go beyond interpreting Article 104 of the BL and therefore
do not amount to a binding interpretation of Article 104 of the
BL?”

(2) Yau’s Question (1):

“(1) Whether the courts of the HKSAR, in interpreting the

Interpretation, have the jurisdiction to do any of the
following:

a. Consider and determine whether the Interpretation or parts

of it is or are not an interpretation of a provision of the
Basic Law but is instead an interpretation of a local law
made by the Legislature of the HKSAR namely the ODO
and to the extent that it is an interpretation of a local law
made by the Legislature of the HKSAR, it is not made
under Basic Law Article 158;

b. Alternatively, on the basis that the Interpretation is binding,

whether it is for the HKSAR internally to prescribe what
are the requirements of ‘in accordance with law’ as stated
in Basic Law Article 104 to accord with the Interpretation
which in terms mean the amendment of ODO and Rules of
Procedure of the LegCo to conform to the Interpretation
and in particular to make the legal requirements for
sincerity and solemnity objectively clear;

c. Consider and determine whether the Interpretation which is

silent as to the date of its commencement is not
retrospective in its effect and the date of commencement
should only start from the date of promulgation or
 - 23 -

alternatively requires the HKSAR to make conforming

amendments to the ODO and the Rules of Procedure of the
LegCo and the law to be applied to Ms. YAU Wai Ching’s
case is as it existed prior to the Interpretation.”

34. In approaching questions raised in respect of the Interpretation, it

must be borne in mind that the Court has previously considered the scope of
BL158(1), the power of the NPCSC to interpret provisions of the Basic Law
and the effect of such interpretations on a number of occasions, among them
in the Court’s decisions in Ng Ka Ling & Others v Director of Immigration,16
Ng Ka Ling & Others v Director of Immigration (No.2),17 Lau Kong Yung &
Others v Director of Immigration,18 Director of Immigration v Chong Fung
Yuen19 and, most recently, Vallejos v Commissioner of Registration.20

35. Thus, certain basic propositions are authoritatively established.

Under the constitutional framework of the Hong Kong Special Administrative
Region, the Basic Law is a national law of the PRC, having been enacted by
the National People’s Congress pursuant to Article 31 of the Constitution of
the PRC. 21 The NPCSC’s power to interpret the Basic Law derives from
Article 67(4) of the Constitution of the PRC and is provided for expressly in
the Basic Law itself in BL158(1) and is in general and unqualified terms.22
The exercise of interpretation of the Basic Law under PRC law is one
conducted under a different system of law to the common law system in force
in the Hong Kong Special Administrative Region, and includes legislative
interpretation which can clarify or supplement laws.23 An interpretation of

16
(1999) 2 HKCFAR 4.
17
(1999) 2 HKCFAR 141.
18
(1999) 2 HKCFAR 300.
19
(2001) 4 HKCFAR 211.
20
(2013) 16 HKCFAR 45.
21
Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4 at p.13A-B.
22
Lau Kong Yung & Others v Director of Immigration (1999) 2 HKCFAR 300 at p.323B-C; Director
of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at p.222G-H.
23
Director of Immigration v Chong Fung Yuen (supra) at pp.222J-223A.
 - 24 -

the Basic Law issued by the NPCSC is binding on the courts of the Hong
Kong Special Administrative Region.24 It declares what the law is and has
always been since the coming into effect of the Basic Law on 1 July 1997.25

36. In these circumstances, unless this Court were to revisit these

fundamental propositions of law, it is apparent that many of the questions
sought to be raised by Leung and Yau as to the Interpretation have already
been authoritatively determined by the Court. In our view, there is no warrant
for revisiting those propositions and Leung and Yau’s contentions questioning
their correctness are not reasonably arguable. In short, we are satisfied that
the Interpretation is clear in its scope and effect, that disqualification of Leung
and Yau is the automatic consequence of their declining or neglecting to take
the Legco oath, and that it is binding on the courts of the Hong Kong Special
Administrative Region as regards the true construction of BL104 at the
material time when Leung and Yau purported to take their oaths.

37. In any event, in respect of the other questions sought to be raised

by Leung and Yau on the Interpretation in relation to the true construction of
BL104, in view of the proper construction of section 21 of the Ordinance as
held by the courts below (the proposed challenges to which, we have
concluded, are not reasonably arguable) and the unchallenged findings of fact
of those courts, the outcome of the present case would be the same
irrespective of the Interpretation. We do not consider it to be reasonably
arguable that the effect of the Interpretation is to oust the jurisdiction of the
courts in respect of the question of whether a member of Legco has validly

24
Ng Ka Ling & Others v Director of Immigration (No.2) (1999) 2 HKCFAR 141 at p.142D; Lau
Kong Yung & Others v Director of Immigration (supra) at pp.322D-324E (per Li CJ) and 344C-346E (per
Sir Anthony Mason NPJ); Director of Immigration v Chong Fung Yuen (supra) at p.223A-C.
25
Lau Kong Yung & Others v Director of Immigration (supra) at pp.326D-E and 346J-347A.
 - 25 -

taken the Legco oath or that it precludes the application of the Ordinance to
govern the consequences of declining or neglecting to take a required oath.

Conclusion
38. In view of his full written submissions in response to the
applications, we did not call on Mr Benjamin Yu SC, counsel for the Chief
Executive and Secretary for Justice, after hearing Lord Pannick QC for Leung
and Ms Gladys Li SC for Yau. We were satisfied that, regardless of the
general and public importance of some of the questions sought to be raised,
Leung and Yau’s appeals against the decisions below, declaring them to have
been disqualified from the office of Legco member and precluding their re-
taking their Legco oaths, are not reasonably arguable and that there is no
reasonable prospect of the Court differing from the conclusions of the courts
below.

39. In the circumstances, we dismissed the applications for leave to

appeal with costs, to include a certificate for two counsel.

(Geoffrey Ma) (R A V Ribeiro) (Joseph Fok)

Chief Justice Permanent Judge Permanent Judge
 - 26 -

Lord Pannick QC, Mr Hectar Pun SC and Mr Anson Wong Yu Yat,

instructed by Ho Tse Wai & Partners, for the Applicant in FAMV 9 &
10/2017

Ms Gladys Li SC and Mr Jeffrey Tam, instructed by Khoo & Co., for the
Applicant in FAMV 7 & 8/2017

Mr Benjamin Yu SC, Mr Johnny Mok SC, Mr Jimmy Ma and Mr Jenkin

Suen, instructed by the Department of Justice, for the Respondents in
FAMV 7-10/2017
A A

CACV 200/2017 & CACV 201/2017

B B
[2019] HKCA 173
C C
CACV 200/2017
D D

IN THE HIGH COURT OF THE

E E
HONG KONG SPECIAL ADMINISTRATIVE REGION
F
COURT OF APPEAL F
CIVIL APPEAL NO 200 OF 2017
G (ON APPEAL FROM HCMP NO 3382 OF 2016) G

_______________
H H

BETWEEN
I I

SECRETARY FOR JUSTICE Plaintiff

J (Respondent) J

K and K

L
LEUNG KWOK HUNG Defendant L
(Appellant)
M M
_______________

N N
AND
O O
CACV 201/2017
P P

IN THE HIGH COURT OF THE

Q Q
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
R R
CIVIL APPEAL NO 201 OF 2017
S
(ON APPEAL FROM HCAL NO 224 OF 2016) S
_______________
T T

U U

V V
 -2-
A A

BETWEEN
B B
st
CHIEF EXECUTIVE OF THE HONG KONG 1 Applicant
st
C SPECIAL ADMINISTRATIVE REGION (1 Respondent) C

D SECRETARY FOR JUSTICE 2nd Applicant D

(2nd Respondent)
E E
and
F F
CLERK TO THE LEGISLATIVE COUNCIL Respondent
rd
(3 Respondent)
G G
LEUNG KWOK HUNG Interested Party
H (Appellant) H

I _______________ I

J J
Before: Hon Lam VP, Barma and Poon JJA in Court
K Dates of Hearing: 28 and 29 November 2018 K
Date of Judgment: 15 February 2019
L L

M M
JUDGMENT
N N

O
Hon Poon JA (giving the Judgment of the Court) : O

P 1. This is an appeal brought by the appellant, Mr Leung Kwok P

1
Hung, against the judgment of Au J (as he then was) dated 14 July 2017.
Q Q

R R

S S

1
Au J’s judgment is now reported as Chief Executive of HKSAR v President of Legislative
T Council [2017] 4 HKLRD 115 (“Judgment”). T

U U

V V
 -3-
A A

A. BACKGROUND
B B

2. Pursuant to article 104 of the Basic Law (“BL104”) and the

C C
relevant provisions of the Oaths and Declarations Ordinance, Cap 11
D (“ODO”), all newly elected members of the 6th Legislative Council were D

required to take the Legislative Council Oath (“Legco Oath”2) at the first
E E
meeting on 12 October 2016. As it turned out, the manner and way in
F which certain members, including the appellant, purported to take the F

Legco Oath gave rise to much controversy. In consequence, the Chief

G G
Executive of the HKSAR and the Secretary for Justice commenced
H H
separate sets of legal proceedings against 6 of such members, including

I
the appellant.3 I

J J
3. The appellant purported to take the Legco Oath in the
K following manner :4 K

L “ 116. … [After the Clerk to Legco] called Mr Leung’s name L

requesting Mr Leung to walk up to the table at the centre of the
chamber to take the Legco Oath in accordance with the
M predetermined order, Mr Leung, who was wearing a black M
t-shirt with the words “公民抗命”5 printed thereon, walked
N down the hallway to the table, carrying an opened yellow N
umbrella (with many words written thereon, including “結束一
黨專政”6) in his right hand and a paper board showing the
O O
words “人大 831 決議”7 (with a cross on it) in his left hand

P 2 P
Set out in Part IV of the Schedule 2 to the ODO.
3
As against Ms Yau Wai Ching and Mr Sixtus Leung Chung Hang, see Chief Executive of
HKSAR v President of Legislative Council [2016] 6 HKC 417 (CFI); Chief Executive of
Q HKSAR v President of Legislative Council [2017] 1 HKLRD 460 (CA) and Yau Wai Ching v Q
Chief Executive of HKSAR (2017) 20 HKCFAR 390 (Appeal Committee). The proceedings
concerning the appellant, Mr Law Kwun Chung, Ms Lau Siu Lai and Mr Yiu Chung Yim
R were heard by Au J together. He ruled against all of them. Mr Law and Mr Yiu did not R
appeal against his judgment. Ms Lau initially appealed but subsequently abandoned it.
What remains is the appellant’s present appeal.
S 4
Judgment, at [116] – [119]. S
5
English translation : Civil Disobedience.
6
English translation : End One-Party Dictatorship.
7
T English translation : National People’s Congress (“the NPC”) 831 Decision. T

U U

V V
 -4-
A A

and shouted in Cantonese “雨傘運動！不屈不撓！公民抗命！

B B
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！”.8
C C
117. When Mr Leung reached the oath-taking table, he put
the paper board on the table, continued holding the yellow
D D
umbrella in his right hand and said the following in Cantonese
(“the Statement”) :
E E
“ 得未？係用中文定英文定上海話？我揀咗中文，唔
好意思呀。聽住各位，係好莊嚴架。兩年之前人民
F F
喺出面，爭取雙普選，俾人拉俾人打。”9

G 118. Mr Leung then paused for around two seconds and G

started reading words of the Legco Oath in Cantonese with a
much louder voice and in a truncated manner as follows (with
H the opened yellow umbrella in his right hand) : H

I “ 本人(pause)梁國雄(pause)，謹以至誠(pause)，據實聲 I
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
J J
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
K 別行政區(pause)基本法》(pause)，效忠(pause)中華人 K
民 (pause) 共 和 國 (pause) 香 港 (pause) 特 別 行 政 區
L (pause)，盡忠職守(pause)，遵(pause)守法律[in low L
voice](pause)，廉潔奉公(pause)，為香港(pause) [in
louder voice]特別行政區(pause)服務。”10
M M
119. Around one second after he had read out the words of
N the Legco Oath, Mr Leung (a) shouted “撤銷人大 831 決議！ N
我要雙普選！”;11 (b) put down the yellow umbrella on the
O O
8
English translation : Umbrella Movement! Indomitable! Civil Disobedience! Without
Fear! Self-Autonomy and Self-Determination for People! No Approval from the
P P
Communist Party of China is Required! I Want Dual Universal Suffrage! Leung Chun
Ying Step Down!
9
English translation : Okay? Use Chinese or English or Shanghainese? I chose Chinese,
Q excuse me. Listen everybody, it is very solemn. Two years ago, people were out there, Q
fighting for dual universal suffrage, and were arrested and beaten up.
10
English translation : I, Leung Kwok Hung, solemnly, sincerely, and truly declare and affirm
R that, being a member of the Legislative Council of the Hong Kong Special Administrative R
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
S Kong Special Administrative Region of the People’s Republic of China and serve the Hong S
Kong Special Administrative Region conscientiously, dutifully, in full accordance with the
law, honestly and with integrity.
11
T English translation : Revoke the NPC 831 Decision! I Want Dual Universal Suffrage! T

U U

V V
 -5-
A A

table, opened with the top of the umbrella pointing away from
B him; (c) tore a piece of paper with the words “人大 831 決 B

議”12 (without a cross on it) into pieces while shouting “撤銷

C 人大 831 決議！撤銷人大 831 決議！我要雙普選！人民自 C
主自決！無須中共批准！”;13 (d) threw the pieces of paper
D away towards the ceiling; and (e) left where he had been D
standing with his other props.”

E E
4. The appellant then left the table at the centre of the Chamber.
F The Clerk did not say anything and had effectively decided his purported F

G
oath-taking as valid. G

H H
5. On 7 November 2016, the National People’s Congress
I Standing Committee (“the NPCSC”) exercised its power under article I

67(4) of the Constitution and article 158(1) of the Basic Law to interpret
J J
BL104 (“the Interpretation”).
K K

B. PROCEEDINGS BELOW
L L

6. In the proceedings below, the Chief Executive and the

M M
Secretary for Justice contended that the Clerk’s said decision was
N unlawful because, as a matter of law, the appellant should be regarded as N

having declined or neglected to take Legco Oath, and thereby be

O O
disqualified from taking up the office of a Legco member. The
P appellant argued that what he did in taking the Legco Oath was legally P

compliant; or alternatively if it was not in strict compliance with the legal

Q Q
requirements, he did not in law decline or neglect to take the Legco Oath.
R R

S 12
English translation : the NPC 831 Decision. S
13
English translation : Revoke the NPC 831 Decision! Revoke the NPC 831 Decision! I
Want Dual Universal Suffrage! Self-Autonomy and Self-Determination for People! No
T Approval from the Communist Party of China is Required! T

U U

V V
 -6-
A A

7. Au J held that, as a constitutional and mandatory

B B
requirement, a member-elect to Legco must properly and validly take the
C Legco Oath both in form and in substance as required by the law before C

he could assume office. In his legal analysis,14 the Judge accepted that
D D
the Interpretation is binding on all the courts in Hong Kong. He derived
E E
from the Interpretation, the proper construction of the relevant provisions

F
of the ODO and the relevant case law three requirements that a Legco F
member must fulfill when making the Legco Oath, namely, (1) the Exact
G G
Form and Content Requirement; (2) the Solemnity Requirement; and (3)

H
the Substantive Belief Requirement. H

I I
8. On the appellant’s purported oath-taking, Au J found :
J J
“ 123. As I have explained above, under the Solemnity
Requirement, as a matter of law, an oath maker must take the
K Legco Oath in a solemn and sincere manner which is K
objectively consistent with and commensurate with the
constitutional importance of the oath taking ceremony and
L L
procedure, and the seriousness of the pledges of allegiance
enshrined in the oath.
M M
124. Moreover, given the fundamental constitutional
importance of the requirement to take the Legco Oath, and the
N utmost seriousness expected of the oath taker in making the N
constitutionally required pledges in the oath, the objective
solemnness and sincerity required of in the procedure should
O O
be such that the oath taker must take the oath in such a formal
and dignified manner that demonstrate to a reasonable person
P the oath taker’s high degree of respect and seriousness given to P
the oath taking procedure and the oath itself. This is also to
demonstrate to the public the oath taker’s sincere and
Q Q
substantive belief in pledging his allegiance as required by the
constitution.
R R

S S

14
See Judgment, Part B where the Judge discussed the law governing the taking of the Legco
T Oath. T

U U

V V
 -7-
A A

125. In my view, the manner in which Mr Leung took the

B oath goes well outside an objective reasonable range of such B
requisite solemnity and sincerity :
C C
(1) The ceremony and procedure of the oath taking
is to serve only one purpose, that is for the oath
D taker to comply with the constitutional D
requirements to take the oath in the form and
substance as prescribed and required by BL104
E E
and the ODO. Hence, the ceremony and
procedure demands a solemnity and sincerity
F that underline this only purpose. F

(2) However, the holding of an umbrella, in

G particular with it opened, in the oath taking G
ceremony clearly simply does not accord in any
reasonable way with the importance and
H H
seriousness of the taking of an oath as the
ceremony’s only purpose.
I I
(3) Similarly, the chanting of slogans and the
tearing of the paper with the message on it are
J also acts and conducts which were totally J
unrelated to the taking of the oath itself.
K K
(4) Clearly in my view, these theatrical acts viewed
objectively had rendered the occasion without
L the requisite dignity and respect that was L
consistent with the constitutional importance
and seriousness of the oath taking exercise.
M M
(5) Further, viewed against the above theatrical
N conducts, the Statement (with the words “係好 N
莊嚴架”) uttered by Mr Leung just before he
purportedly took the Legco Oath was, as
O submitted by the Plaintiffs, plainly a sarcastic O
remark as objectively appeared to a reasonable
P person suggesting precisely the opposite. P

126. In the premises, on any objective view, the above acts

Q and conducts of Mr Leung, whether viewed independently or Q
collectively, show that Mr Leung did not take the Legco Oath
with the requisite solemnity and sincerity as required by the
R R
law. He therefore failed to satisfy the Solemnity
Requirement.
S S
127. Moreover, Mr Leung’s chanted slogans were all carried
out after he had been requested by the Clerk to the Legco Oath,
T T

U U

V V
 -8-
A A

and close to and after the reading of the Legco Oath. In the
B circumstances, viewed objectively, I also agree with Mr Mok B
that it is clear that Mr Leung also sought to incorporate as part
C of the oath taking itself additional worded messages through C
his chanted slogans. For the reasons I have set out at
paragraphs 91 and 92 above, he also therefore failed to comply
D with the Exact Form and Content Requirement. The oath D
taking is unlawful and invalid.”
E E

9. The Judge therefore concluded :

F F
“ 128. Again, there is no doubt that he intended to adopt and
G carry out those acts and conducts, which objectively viewed G
did not comply with the Solemnity Requirement and the Exact
Form and Content Requirement. Mr Leung therefore
H declined or neglected to take the Legco Oath when requested H
to do so on 12 October 2016. He should since 12 October
I 2016 be disqualified in law from assuming the Office, and I
there is no question of retaking the oath.”

J J
C. GROUNDS OF APPEAL
K K
10. The appellant raised 7 Grounds of Appeal.15
L L

11. Mr Martin Lee, SC (together with Mr Carter Chim and Ms

M M
Senia Ng), for the appellant, adopted the primary position that the
N N
Interpretation is, by reason of Grounds 1 to 3, not valid or binding on the

O
Hong Kong courts and does not in any event have retrospective effect. O

P
(1) Ground 1 contends that the Interpretation was not a true or P
proper interpretation of BL104 because, by virtue of articles
Q Q
15
See the amended notice of appeal filed on 27 November 2018. Originally the notice of
appeal contained 10 grounds of appeal. He subsequently abandoned 3 of them by way of
R amendment by summons dated 23 August 2018. Below, Grounds 1 to 3 are the original R
Grounds 1 to 3. Ground 4 is the original Ground 5. Grounds 5 to 7 are the original
Grounds 8 to 10. In the same summons, the applicant sought leave to raise an additional
S ground of appeal to contend that the Interpretation was not binding on all courts of Hong S
Kong as it was not issued in accordance with the conditions laid down in BL158(3). We
dismissed the application as it is plainly unarguable. The Interpretation was issued under
T BL158(1). BL158(3) was simply not engaged. T

U U

V V
 -9-
A A

B 5, 8, 18 and 158 of the Basic Law and article 67(3) and (4) B
of the Constitution of the PRC, the NPCSC is not entitled to
C C
supplement any provision of the Basic Law when
interpreting it under BL158.
D D
(2) Ground 2 contends that insofar as the Interpretation was in
E E
the nature of a supplementation of BL104, it should not,
according to common law, have retrospective effect.
F F

(3) Ground 3 contends that the Interpretation usurped the

G G
functions of the HKSAR Legco as it purports to interpret the
ODO by supplementing it, which the NPCSC is not entitled
H H
to do under articles 2 and 17 of the Basic Law.
I I

12. Mr Lee’s alternative position is that even if the

J J
Interpretation is valid, binding and has retrospective effect, the Legco
K Oath taken by the appellant was nevertheless valid by reason of Grounds K

4 to 7.
L L

(1) Ground 4 complains that the requirements for taking the

M M
Legco Oath are not prescribed by law because unless the
N ODO is amended at the statutory level to give effect to the N
requirements imposed by the NPCSC in the Interpretation at
O the constitutional level by providing sufficiently clear O

guidance and objective and reasonable criteria at the

P P
statutory level, the requirements of oath-taking pursuant to
Q the Interpretation, in the absence of such statutory guidance Q

and criteria, cannot satisfy the “prescribed by law”

R R
requirement and are thus unconstitutional.

S (2) Ground 5 argues that as long as the member-elect takes the S

Legco Oath in a way and manner that accords with the

T T

U U

V V
 - 10 -
A A

B Legco Practices, 16 the legal requirement of solemnity is B

fulfilled and the Judge erred in disregarding the appellant’s
C C
legitimate expectation that, in the absence of any
notification to the members’ elect to the contrary, the Legco
D D
Practices and the previous rulings of the President of Legco
E would continue to be adopted as the only benchmark in E

determining the validity of his oath-taking on 12 October

F F
2016.
G (3) Ground 6 contends that in determining if a member-elect’s G

oath taking accords with the requisite solemnity and

H H
sincerity, the court should give a wide margin of deference
I and/or substantial weight to the decision of the Clerk or the I
President who are better placed than the court in making
J such a determination. J

K (4) Ground 7 challenges various findings by the Judge in K

support of his conclusion that the appellant had failed to
L meet the Solemnity Requirement and the Exact Form and L

Content Requirement.
M M

N 13. We will first consider Grounds 1 to 3 together. As said, N

they all concern the validity, scope and effect of the Interpretation.
O O

P P

Q Q

R R

S S
16
Defined by the Judge at [42] of the Judgment read together with footnote 4, essentially
referring to the accepted rules and practices relating to members’ attire and display of objects
T in the Legco. T

U U

V V
 - 11 -
A A

D. GROUNDS 1 TO 3 – VALIDITY, SCOPE AND EFFECT OF

B B
THE INTERPRETATION
C C
D1. An impermissible challenge

D 14. In Yau Wai Ching v Chief Executive of HKSAR (2017) 20 D

E
HKCFAR 390, the Appeal Committee, after referring to the
E
17
jurisprudence on the NPCSC’s power to interpret the Basic Law, held :
F F
“ 35. Thus, certain basic propositions are authoritatively
established. Under the constitutional framework of the Hong
G G
Kong Special Administrative Region, the Basic law is a
national law of the PRC, having been enacted by the National
H People’s Congress pursuant to art.31 of the Constitution of the H
PRC. The NPCSC’s power to interpret the Basic Law derives
from art.67(4) of the Constitution of the PRC and is provided
I I
for expressly in the Basic Law itself in BL158(1) and is in
general and unqualified terms. The exercise of interpretation
J of the Basic Law under PRC law is one conducted under a J
different system of law to the common law system in force in
the Hong Kong Special Administrative Region, and includes
K legislative interpretation which can clarify or supplement laws. K
An interpretation of the Basic Law issued by the NPCSC is
L binding on the courts of the Hong Kong Special Administrative L
Region. It declares what the law is and has always been since
the coming into effect of the Basic Law on 1 July 1997.
M M
36. In these circumstances, unless this Court were to revisit
these fundamental propositions of law, it is apparent that many
N of the questions sought to be raised by Leung and Yau as to the N
Interpretation have already been authoritatively determined by
O the Court. In our view, there is no warrant for revisiting those O
propositions and Leung and Yau’s contentions questioning
their correctness are not reasonably arguable. In short, we are
P satisfied that the Interpretation is clear in its scope and effect, P
that disqualification of Leung and Yau is the automatic
Q
consequence of their declining or neglecting to take the Legco Q
Oath, and that it is binding on the courts of the Hong Kong
Special Administrative Region as regards the true construction
R of BL104 at the material time when Leung and Yau purported R
to take their oaths.”
S S

17
Omitting the footnotes giving the references to the relevant cases determined by the Court of
T Final Appeal, some of which we will discuss below. T

U U

V V
 - 12 -
A A

15. By mounting the challenges against the validity, scope and

B B
effect of the Interpretation, Mr Lee effectively asked us to revisit those
C fundamental propositions laid down by the Court of Final Appeal C

authoritatively over the years. But when the Appeal Committee, as

D D
recently as 1 September 2017 (the date of its judgment in Yau Wai
E E
Ching), saw no warrant for revisiting those fundamental propositions,

F
such a course is not open to this Court. Mr Lee submitted that the F
Appeal Committee’s judgment in Yau Wai Ching is not binding on us
G G
because it is not a determination by the full Court of Final Appeal, citing

H
HKSAR v Ma Zhujiang [2007] 4 HKLRD 285, at [39] in support. We H
do not consider Mr Lee’s reliance on that case could take him any further.
I I
We first note that the Court of Appeal there did not actually decide the
J point but, just for the purposes of the appeal before it, accepted the J

proposition. But the fundamental propositions summarized by the

K K
Appeal Committee are all derived from previous judgments of the Court
L of Final Appeal which are binding on this Court. By applying those L

undisputable fundamental propositions to the Interpretation, the Appeal

M M
Committee concluded that the Interpretation is binding on all the courts
N of Hong Kong, which must include this Court, as regards the true N

construction of BL104 on 12 October 2016.

O O

P 16. In our view, the Appeal Committee’s judgment in Yau Wai P

Ching is a complete answer to Mr Lee’s challenges against the validity,

Q Q
scope and effect of the Interpretation. Indeed, Mr Lee accepted in his
R oral submissions that if we take the view that the Appeal Committee’s R

judgment in Yau Wai Ching is binding on us, that is the end of Grounds 1
S S
to 3. In any event, as we will demonstrate shortly, Mr Lee’s attack on
T T

U U

V V
 - 13 -
A A

the validity, scope and effect of the Interpretation is, on a closer analysis,
B B
doomed to fail.
C C

D
D2. Mr Lee’s submissions D

E
17. Mr Lee mounted the challenge against the validity, scope
E
and effect of the Interpretation by firstly submitting that the courts of
F F
Hong Kong have the duty to determine whether an interpretation of the

G
Basic Law by the NPCSC, if challenged, is in compliance with all the G
conditions stipulated in BL158 by adopting the common law approach,
H H
and if compliant, to determine the scope with which such interpretations

I applies in Hong Kong. In support, Mr Lee referred to Ng Ka Ling v I

Director of Immigration (1999) 2 HKCFAR 4, at pp.25A-B where Li CJ
J J
said that the courts of Hong Kong had the jurisdiction to examine
K whether any legislative acts of the NPC or the NPCSC were consistent K

with the Basic Law and to declare them to be invalid if found to be

L L
inconsistent. Although in Ng Ka Ling v Director of Immigration (No 2)
M (1999) 2 HKCFAR 141, at p.142D-E, the Court of Final Appeal said that M

it could not question the authority to the NPC or the NPCSC to do any
N N
act which is in accordance with the provisions of the Basic Law and the
O procedure therein, Mr Lee submitted that Ng Ka Ling (No 2) did not O

resile from Ng Ka Ling so that if any act of the NPC or the NPCSC is
P P
inconsistent with the provisions of the Basic Law, the courts of Hong
Q Kong can declare it invalid. Q

R R
18. Mr Lee then embarked on an analysis of various articles of
S the Basic Law and the Constitution concerning the power of the NPCSC S

T T

U U

V V
 - 14 -
A A

to interpret the Basic Law. Focusing first on the NPCSC’s power to

B B
interpret the Basic Law under BL158(1), Mr Lee argued :
C C
(1) While the NPCSC’s power to interpret the Basic Law under
D article 67(4) of the Constitution is unlimited, it is limited D

under BL158(1). The NPCSC’s power to interpret the

E E
Basic Law under BL158(1) is not “a general and unqualified
F one”, contrary to the decision of the Court of Final Appeal F
in Lau Kong Yung v Director of Immigration (1999) 2
G HKCFAR 300. It is a limited one because the NPCSC’s G

power to interpret the Basic Law comes from BL158 as a

H H
whole, so that it must “consult its Committee for the Basic
I Law of the Hong Kong Special Administrative Region I

before giving an interpretation of this Law” under BL158(4).

J J
Nor should BL158(2) or (3) be ignored. In other words,
K
BL158(1) is not a free-standing provision. Read together K
with BL158(2) and (3), the NPCSC can only exercise its
L power to interpret the Basic Law when there is a case L

referred to it by the Hong Kong court.

M M
(2) Even if there is no judicial referral under BL158(3), the
N NPCSC can interpret the Basic Law but cannot supplement N

it by way of interpretation. For there is simply no

O O
provision for supplementation in the Basic Law.
P (3) BL158 (interpretation of the Basic Law) should be P

considered with BL159 (amendment of the Basic Law).

Q Q
Under both articles, the powers given to the NPCSC are
R express and specific. Under BL158, it may interpret the R

Basic Law. Under BL159, it may only propose bills for

S S
amendments to the Basic Law to be submitted to the NPC

T
for action. No power of supplementation is given to the T

U U

V V
 - 15 -
A A

B NPCSC or indeed the NPC. Importantly, BL159(4) B

provides that no amendment to the Basic Law shall
C C
contravene the established basic policies of the PRC
regarding Hong Kong. 18 One of the PRC’s established
D D
policies is that the legislative power of the Hong Kong
E Special Administrative Region shall be vested in the E

Legislative Council. That established policy is now

F F
enshrined in BL17. But by making the Interpretation, the
G
NPCSC had in effect legislated for the Hong Kong Special G
Administrative Region by supplementing the provisions of
H the ODO, thereby usurping the functions of the Legislative H

Council in contravention of that established policy and

I I
indeed BL17. It would be bizarre, if not absurd, if the NPC
J is prevented from amending the Basic Law as would J
contravene the established policies of the PRC regarding
K K
Hong Kong, and yet this can be done with impunity by its
subordinate, the NPCSC, by way of partial supplementation
L L
of the Basic Law, even though it cannot make the slightest
M amendment to the Basic Law. M

N N
19. Turning to article 67(4) of the Constitution, Mr Lee went on
O to submit : O

P (1) The NPCSC cannot supplement the Basic Law under article P
67(4) either. Under article 67(4), the NPCSC can only
Q interpret laws but it cannot supplement laws. Its power to Q

partially supplement laws is conferred by article 67(3). So

R R
the opinion of Professor Lian Xisheng adduced in Director
S S
18
The PRC Government’s established policies regarding Hong Kong are set out in para.3 of the
Joint Declaration and are further elaborated by the PRC Government at Annex I to the Joint
T Declaration. T

U U

V V
 - 16 -
A A

B of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, B

cited by Li CJ at p.221I-J, that under the Mainland system,
C C
the NPCSC, when interpreting laws, may further clarify the
scope and make supplementation provisions, is wrong.
D D
Professor Lian appeared to have conflated the NPCSC’s
E power to interpret laws under article 67(4) with its power to E

partially supplement laws under article 67(3).

F F
(2) In any event, Professor Lian appeared to be referring to the
G power of the NPCSC to interpret laws generally without G

being specific as to its power to interpret the Basic Law.

H H
Under the Mainland system, the NPCSC does have the
I power to partially supplement laws under article 67(3) of the I
Constitution. But it has no such power under the Basic
J Law. Similarly, the general statement by the Court of Final J

Appeal in Chong Fung Yuen at pp.221H-I and 223A that

K K
under the Mainland system, legislative interpretation by the
L NPCSC can clarify or supplement laws is not specific as to L

the NPCSC’s power to interpret the Basic Law. As such, it

M M
is an obiter dictum not binding on this Court.

N (3) The courts of Hong Kong should interpret article 67(4) of N

the Constitution in accordance with the common law

O O
approach, that is, to consider the meaning of the language in

P
the light of its context and purpose. The result of such P
purposive interpretation is that the word “interpret” in both
Q article 67(4) and BL158(1) should only be construed as Q

“clarify” and not also as “supplement”.

R R

S S

T T

U U

V V
 - 17 -
A A

20. In the end, Mr Lee submitted that the Interpretation, in the

B B
nature of supplementation, is invalid and the courts of Hong Kong should
C so declare. C

D D
21. With respect, most if not all of Mr Lee’s arguments are
E E
flatly contradicted by an array of well-established authorities decided by

F the Court of Final Appeal and the Court of Appeal. F

G G
D3. No jurisdiction to examine validity
H H
22. First and foremost, Mr Lee’s argument on the jurisdiction of
I the courts of Hong Kong Special Administrative Region to examine the I

validity of an interpretation of the Basic Law made by the NPCSC must

J J
be rejected. Whatever the Court of Final Appeal might have said or
K might have been perceived to have said in Ng Ka Ling, the Court of Final K

Appeal had clarified in unequivocal terms in Ng Ka Ling (No 2), ibid :

L L

“ the Court’s judgment in [Ng Ka Ling] did not question

M the authority of [the NPCSC] to make an interpretation under M
[BL158] which would have to be followed by the courts of the
Region. The Court accepts that it cannot question that
N N
authority. Nor did the Court’s judgment question, and the
Court accepts that it cannot question, the authority of [the NPC]
O or [the NPCSC] to do any act which is in accordance with the O
provisions of the Basic Law and the procedure therein.”

P P
23. Since Ng Ka Ling (No 2), it has been well settled that the
Q Q
courts of Hong Kong have no jurisdiction to examine and determine if

R
any act done by the NPC and the NPCSC in accordance with the R
provisions of the Basic Law and the procedure therein is valid or not.
S S
In case of an interpretation of the Basic Law by the NPCSC under article

T
67(4) of the Constitution and BL158, it is binding on all courts of Hong T

U U

V V
 - 18 -
A A

Kong and they are under a duty to follow it. For more authorities by the
B B
Court of Final Appeal on the point, see further Lau Kong Yung and
C Chong Fung Yuen; and Yau Wai Ching. A recent authority of the Court C

of Appeal on the same point is Chief Executive of HKSAR v President of

D D
the Legislative Council [2017] 1 HKLRD 460. There, Cheung CJHC
E E
(as Cheung PJ then was), after rejecting the argument that the

F
Interpretation was only an interpretation in name but an amendment of F
the Basic Law in substance which could only be done by the NPC in
G G
accordance with BL159, said at [58] – [59] :

H H
“ 58. But more importantly, this present argument raises an a
priori question of whether under the Basic Law, the courts of
I the Hong Kong Special Administrative Region have ever been I
vested with the jurisdiction to determine whether an
interpretation officially promulgated as such by the NPCSC in
J accordance with art.67(4) of the Constitution and art.158 of the J
Basic Law and the procedure therein is invalid on the ground
K
under discussion. Apart from citing to the Court a passage in K
[Ng Ka Ling] which must be read together with [Ng Ka Ling
(No 2)] where the Court of Final Appeal clarified in no
L uncertain terms that the courts in Hong Kong cannot question L
‘the authority of [the NPC] or [the NPCSC] to do any act
which is in accordance with the provisions of the Basic Law
M M
and the procedure therein’. Mr Pun has simply made no
submission on this fundamental question of jurisdiction.
N N
59. In my view, the Court has no jurisdiction to deal with the
issue raised.”
O O

P
24. The Interpretation expressly stated that it was made by the P
NPCSC under article 67(4) of the Constitution and BL158(1) after
Q Q
consulting the Committee of the Basic Law of the Hong Kong Special

R Administrative Region under the NPCSC. It is thus an officially R

promulgated interpretation in accordance with article 67(4) of the
S S
Constitution and BL158(1) and the procedure contained in BL158(4).
T As the authorities now stand, the courts of Hong Kong simply have no T

U U

V V
 - 19 -
A A

jurisdiction to determine if the Interpretation is invalid on the grounds

B B
relied on by Mr Lee.
C C

D
D4. Applicability of article 67(4) of the Constitution D

E
25. The next general point in Mr Lee’s submissions that we
E
must reject concerns the applicability of article 67(4) of the Constitution
F F
in the Hong Kong Special Administrative Region. Mr Lee accepted that

G
under both article 67(4) of the Constitution and article 158(1) of the G
Basic Law, the NPCSC is empowered to interpret the Basic Law. In his
H H
written submissions, Mr Lee submitted that since the Constitution is not

I included under BL18 and Annex III to the Basic Law, article 67(4) of the I
Constitution has no application in Hong Kong. Thus, the courts of
J J
Hong Kong need not have regard to article 67(4) when considering an
K interpretation of the Basic Law issued by the NPCSC. However, in his K

oral submissions, Mr Lee took a significant turn. He said he had to

L L
accept that the Constitution is applicable to Hong Kong as the
M establishment of the Hong Kong Special Administrative Region would M

have no other constitutional foundation other than article 31 of the

N N
Constitution. He however submitted that by enacting the Basic Law,
O the NPC and the NPCSC have by way of self-restraint circumscribed the O

exercise of their powers under the Constitution by the provisions of the

P P
Basic Law. Therefore, the applicability of any provision in the
Q Constitution must be subject to any contrary provision in the Basic Law. Q

On that basis, Mr Lee also agreed that the Constitution has to be read
R R
together with the Basic Law to determine the NPCSC’s powers,
S including the power to interpret the Basic Law. In short, as we S

understand him, Mr Lee no longer maintained the argument in his written

T T

U U

V V
 - 20 -
A A

submissions that Hong Kong courts need not have regard to article 67(4)
B B
of the Constitution in considering an interpretation of the Basic Law
C issued by the NPCSC under BL158. C

D D
26. Even if maintained by Mr Lee, we do not consider it a viable
E E
argument. As explained by Li CJ in Lau Kong Yung, at p.322D-E and

F Chong Fung Yuen, at pp.222J-223D : F

G (1) Article 67(4) of the Constitution confers on the NPCSC the G

function and power to interpret laws, including the Basic
H Law which is a national law. BL158(1) also provides that H

the power to interpret the Basic Law shall be vested in the

I I
NPCSC.
J (2) In interpreting the Basic Law, the NPCSC functions under J

the Mainland system, which is different from the system in

K K
Hong Kong.
L L
(3) When the NPCSC makes an interpretation of a provision of
the Basic Law, whether under BL158(1) or BL158(3), the
M M
courts of Hong Kong are bound to follow it. Thus the
N authority of the NPCSC to interpret the Basic Law is fully N

acknowledged and respected in the Hong Kong Special

O O
Administrative Region. This is to give effect to the Basic
P
Law implementing the “one country, two systems” principle. P
Both systems being within one country (of which, we
Q emphasise, Hong Kong is an unseparable part), the Q

NPCSC’s interpretation made in conformity with BL158

R R
under the Mainland system is binding in and part of the
S system in Hong Kong. S

T T

U U

V V
 - 21 -
A A

27. It is thus established by the Court of Final Appeal that when

B B
the NPCSC interprets the Basic Law under BL158, it functions under the
C Mainland system, within which it derives the power to interpret laws, C

including the Basic Law, from article 67(4) of the Constitution. And
D D
the NPCSC’s authority to interpret the Basic Law under the Mainland
E E
system pursuant to article 67(4) of the Constitution is fully acknowledged

F
and respected in Hong Kong. Indeed, such an interpretation by the F
NPCSC is binding in and part of the system in Hong Kong. Hong Kong
G G
courts must have and in fact have always had regard to article 67(4) of

H
the Constitution, which is the primary source of the NPCSC’s power to H
interpret the Basic Law, in approaching an interpretation it made under
I I
BL158. This explains why the courts in Hong Kong fully accept that
J the NPCSC’s power to interpret the Basic Law under BL158(1) is J

general and unqualified. It is so because, as Hong Kong courts accept,

K K
under article 67(4) of the Constitution, its power to interpret laws is
L general and unqualified. This also explains why the NPCSC can L

supplement a provision of the Basic Law when interpreting it. It is so

M M
because, as Hong Kong courts also accept, under article 67(4) of the
N Constitution, it can supplement laws when interpreting them. N

O O
D5. The NPCSC’s power to interpret the Basic Law
P P
28. Coming to the specific arguments raised by Mr Lee on the
Q NPCSC’s power to interpret the Basic Law under various article of the Q

Basic Law and article 67(3) and article 67(4) of the Constitution, we do
R R
not consider any of them valid either.
S S

T T

U U

V V
 - 22 -
A A

29. As to Mr Lee’s various submissions on the NPCSC’s power

B B
to interpret the Basic Law under BL158 :
C C
(1) The same argument that the NPCSC could interpret the
D Basic Law under BL158(1) only when there was a judicial D

reference under BL158(3) was firmly rejected by the Court

E E
of Final Appeal in Lau Kong Yung at p.323B-H :
F “ This argument cannot be accepted. It is clear that the F
Standing Committee has the power to make the Interpretation.
This power originates from art.67(4) of the Chinese
G G
Constitution and is contained in art.158(1) of the Basic Law
itself. The power of interpretation of the Basic Law conferred
H by art.158(1) is in general and unqualified terms. H

That power and its exercise is not restricted or qualified

I in any way by art.158(2) and 158(3). By art.158(2), the I
Region’s courts are authorized to interpret on their own in
J
adjudicating cases the provisions within the limits of the J
Region’s autonomy. The words ‘on their own’ underline the
absence of a duty to refer the provisions in question to the
K Standing Committee for interpretation in contrast to the K
mandatory requirement relating to the excluded provisions
provided for in art.158(3). That provision enables the courts
L L
to interpret provisions other than those within the limits of the
Region’s autonomy but, where the conditions provided for are
M satisfied, obliges the Court of Final Appeal not to interpret the M
excluded provisions and to seek an interpretation from the
Standing Committee. So, there is no question of art.158(3)
N restricting the Standing Committee’s general power in N
art.158(1). That provision is directed to limiting the Court’s
O power by requiring a judicial reference of the excluded O
provisions in the circumstances prescribed.

P In any event, the entire scheme of art.158 is P

inconsistent with the argument that restrictions are to be
implied from art.158(2) and 158(3) on the general power of
Q Q
interpretation conferred by art.158(1). The authority given by
art.158(2) to the courts of the Region stems from the general
R power of interpretation vested in the Standing Committee. R
Article 158(3) extends that authority but subject to a
qualification requiring a judicial reference. The reference
S results in the making by the Standing Committee of an S
interpretation which proceeds from the general power vested in
T it by art.158(1). Mr Chang SC’s submission, if it were T

U U

V V
 - 23 -
A A

accepted, would deny to the Standing Committee power to

B interpret provisions in the Basic Law other than the excluded B
provisions. Such a limited power of interpretation would be
C inconsistent with the general power conferred by the C
art.158(1).”

D D

Li CJ reaffirmed the same point in Chong Fung Yuen at

E E
p.222G-H.

F F
(2) The argument that the NPCSC cannot supplement the Basic
G Law when interpreting it under BL158 because there is no G
provision for supplementation in the Basic Law is
H misconceived. For it ignores the fact that when the H

NPCSC interprets the Basic Law, it functions under the

I I
Mainland system and under that system, legislative
J interpretation by the NPCSC can clarify or supplement laws : J

see Chong Fung Yuen at p.223.

K K
(3) The argument based on the combined effect of BL158 and

L
BL159 presupposes that the Interpretation is a
L
supplementation of BL104 and the ODO. But as will be
M seen shortly, a closer analysis of the terms of the M

Interpretation, BL104 and the provisions of the ODO

N N
properly construed will demonstrate that presupposition is
O wrong. The very basis for raising that argument simply O
does not exist.
P P

30. Mr Lee’s various arguments on article 67(4) of the

Q Q
Constitution fail to sufficiently recognize that when the NPCSC
R interprets the Basic Law, it operates under the Mainland system, a system R

different from ours. More specifically :

S S

T T

U U

V V
 - 24 -
A A

B (1) The argument that under article 67(4), NPCSC can only B
interpret laws and cannot supplement laws as the latter can
C C
be done only under article 67(3), is based on Mr Lee’s own
reading of the two articles. But as said, when NPCSC
D D
interprets laws under article 67(4), it operates under the
E Mainland system. How to properly read articles 67(4) and E

67(3) is necessarily a matter of the Mainland law. With

F F
respect, Mr Lee and indeed any common law lawyer who is
G
untrained in the Mainland system, is not qualified to make G
such a submission. In the absence of any evidence to
H contradict Professor Lian’s view that NPCSC could H

supplement laws when interpreting them, which had been

I I
accepted by the Court of Final Appeal in Chong Fung Yuen,
J Mr Lee simply has no basis to submit that Professor Lian J
had conflated NPC’s powers under article 67(4) and 67(3).
K K
(2) The argument that Professor Lian in Chong Fung Yuen made
L no reference to the Basic Law under which the NPCSC has L

no power to supplement has no substance. Under article

M M
67(4), the NPCSC can supplement laws, including national
law such as the Basic Law.
N N

(3) The argument that the general statement of the Court of

O O
Final Appeal in Chong Fung Yuen that under the Mainland

P
system legislative interpretation by the NPCSC can clarify P
or supplement laws is not specific as to NPCSC’s power to
Q interpret the Basic Law and hence is only an obiter dictum, Q

is misconceived. In Chong Fung Yuen, the Court of Final

R R
Appeal was dealing with the Director’s contention that the
S Court should seek an interpretation of article 24(2)(1) of the S
Basic Law from the NPCSC pursuant to BL158(3). The
T T

U U

V V
 - 25 -
A A

B Court rejected that contention. It was in such context that B

the Court of Final Appeal made the statement concerned.
C C
Properly understood in its context, that statement must
concern specifically an interpretation of the Basic Law by
D D
the NPCSC under BL158.
E E
(4) The argument that Hong Kong courts should interpret article
67(4) of the Constitution in accordance with the common
F F
law approach is wrong. The Constitution is a feature and
G indeed the cornerstone of the Mainland system. G

Interpretation of the Constitution must be approached by

H H
reference to the Mainland civil law system. There is
I simply no substance in the contention that one should apply I
the purposive construction under the common law to the
J word “interpret” in both article 67(4) of the Constitution and J

BL158, thereby arriving at the conclusion that it should only

K K
be construed as “clarify” and not also “supplement”.19
L L
D6. Supplementation
M M
31. Mr Lee next mounted two challenges against the scope and
N N
effect of the Interpretation. He argued that as a supplementation of

O
BL104, the Interpretation should not have retrospective effect. Further, O
as a supplementation of the ODO, the Interpretation usurps the functions
P P
of the Legco by enacting local laws. The Judge should have construed

Q the Interpretation as a view expressed by the NPCSC as to how Q

legislators should take the Legco Oath in future. The Interpretation thus
R R

19
In the course of his oral submissions, Mr Lee went so far as suggesting that it could be
S assumed that when the NPCSC interprets the Basic Law, it applies the common law. This S
suggestion is plainly erroneous. Operating under the Mainland system, the NPCSC
obviously applies the Mainland civil law, not the common law, when interpreting the Basic
T Law. T

U U

V V
 - 26 -
A A

has no effect at the time when the appellant took his Legco Oath. As
B B
will be seen below, there is no substance in Mr Lee’s pivotal contention
C that the Interpretation is a supplementation of BL104 and the ODO. We C

will deal with his contention on retrospectivity later.

D D

E E
32. In our view, whether the Interpretation is a supplementation

F calls for a closer scrutiny of, on the one hand, the established law F
regarding the duty to take the Legco Oath, the requirements for the
G G
manner in which the Oath is to be taken, the consequences of declining
H or neglecting to take the Legco Oath, the role of the oath administrator H

and the court; and on the other, the terms of the Interpretation regarding
I I
those matters.
J J

33. BL104 provides :

K K

“ When assuming office, the Chief Executive, principal

L officials, members of the Executive Council and of the L
Legislative Council, judges of the courts at all levels and other
members of the judiciary in the Hong Kong Special
M M
Administrative Region must, in accordance with law, swear to
uphold the Basic Law of the Hong Kong Special
N Administrative Region of the People’s Republic of China and N
swear allegiance to the Hong Kong Special Administrative
Region of the People’s Republic of China.”
O O

P 34. The Interpretation states : P

Q “ 1. ‘To uphold the Basic Law of the Hong Kong Special Q

Administrative Region of the People’s Republic of China’ and
to bear ‘allegiance to the Hong Kong Special Administrative
R Region of the People’s Republic of China’ as stipulated in R
Article 104 of the Basic Law of the Hong Kong Special
Administrative Region of the People’s Republic of China, are
S S
not only the legal content which must be included in the oath
prescribed by the Article, but also the legal requirements and
T T

U U

V V
 - 27 -
A A

preconditions for standing for election in respect of or taking

B up the public office specified in the Article. B

2. The provisions in Article 104 of the Basic Law of the

C C
Hong Kong Special Administrative Region of the People’s
Republic of China that ‘When assuming office’, the relevant
D public officers ‘must, in accordance with law, swear’ bear the D
following meaning :
E (1) Oath taking is the legal prerequisite and E
required procedure for public officers specified
F in the Article to assume office. No public F
office shall be assumed, no corresponding
powers and functions shall be exercised, and no
G corresponding entitlements shall be enjoyed by G
anyone who fails to lawfully and validly take
the oath or who declines to take the oath.
H H
(2) Oath taking must comply with the legal
I requirements in respect of its form and content. I
An oath taker must take the oath sincerely and
solemnly, and must accurately, completely and
J solemnly read out the oath prescribed by law, J
the content of which includes ‘will uphold the
K
Basic Law of the Hong Kong Special K
Administrative Region of the People’s Republic
of China, bear allegiance to the Hong Kong
L Special Administrative Region of the People’s L
Republic of China’.
M (3) An oath taker is disqualified forthwith from M
assuming the public office specified in the
N Article if he or she declines to take the oath. N
An oath taker who intentionally reads out words
which do not accord with the wording of the
O oath prescribed by law, or takes the oath in a O
manner which is not sincere or not solemn, shall
P
be treated as declining to take the oath. The
P
oath so taken is invalid and the oath taker is
disqualified forthwith from assuming the public
Q office specified in the Article. Q

(4) The oath must be taken before the person

R authorized by law to administer the oath. The R
person administering the oath has the duty to
S ensure that the oath is taken in a lawful manner. S
He or she shall determine that an oath taken in
compliance with this Interpretation and the
T T

U U

V V
 - 28 -
A A

requirements under the laws of the Hong Kong

B Special Administrative Region is valid, and that B
an oath which is not taken in compliance with
C this Interpretation and the requirements under C
the laws of the Hong Kong Special
Administrative Region is invalid. If the oath
D taken is determined as invalid, no arrangement D
shall be made for retaking the oath.
E E
3. The taking of the oath stipulated by Article 104 of the
Basic Law of the Hong Kong Special Administrative Region of
F the People’s Republic of China is a legal pledge made by the F
public officers specified in the Article to the People’s Republic
of China and its Hong Kong Special Administrative Region,
G and is legally binding. The oath taker must sincerely believe G
in and strictly abide by the relevant oath prescribed by law.
H
An oath taker who makes a false oath, or, who, after taking the H
oath, engages in conduct in breach of the oath, shall bear legal
responsibility in accordance with law.”
I I

35. With BL104 and the Interpretation in mind, we look at the

J J
matters listed at [32] above more specifically. For the purpose of this
K K
appeal, we shall focus on para.2 of the Interpretation.

L L
D6.1 Constitutional duty to take the Legco Oath
M M
36. BL104 imposes a constitutional duty on members of Legco
N N
to swear to uphold the Basic law and to swear allegiance to the Hong

O Kong Special Administrative Region : Chief Executive of HKSAR v O

President of the Legislative Council, at [27], Yau Wai Ching, Appeal
P P
Committee, at [21]. The Interpretation at para.2 reinforces the same
Q constitutional duty : Yau Wai Ching, Appeal Committee at [21]. Q

R R
D6.2 The requirements for the manner of taking the Legco Oath
S S
37. BL104 does not spell out the exact terms of the oaths to be
T taken or the requirements that an oath taker must meet when taking the T

U U

V V
 - 29 -
A A

oath. It only requires the oath taker to do it “in accordance with law”.
B B
Apart from the Interpretation, that law is the ODO : Yau Wai Ching,
C Appeal Committee, ibid. C

D D
38. Relevantly for present purposes, the ODO provides in :
E E
(1) Section 16 stipulating that the Legco Oath shall be in the
F form as set out in Schedule 2. F

G (2) Part IV of Schedule 2 prescribing the Legco Oath in the G

following terms :
H H
“ I swear that, being a member of the Legislative Council
of the Hong Kong Special Administrative Region of the
I People’s Republic of China, I will uphold the Basic Law of the I
Hong Kong Special Administrative Region of the People’s
J
Republic of China, bear allegiance to the Hong Kong Special J
Administrative Region of the People’s Republic of China and
serve the Hong Kong Special Administrative Region
K conscientiously, dutifully, in full accordance with the law, K
honestly and with integrity.”
L L
(3) Section 19 mandating the time when a Legco member shall
M take the Legco Oath and depending on the occasion, the M
identity of the oath administrator (either the Clerk or the
N N
President or any member acting in his place).

O (4) Section 21 setting out the consequences of non-compliance O

thus :
P P
“ Any person who declines or neglects to take an oath
duly requested which he is required to take by this Part, shall:
Q Q
(a) if he has already entered on his office, vacate it,
and
R R
(b) if he has not entered on his office, be
S disqualified from entering on it.” S

T T

U U

V V
 - 30 -
A A

39. Under a purposive construction with BL104 and the relevant

B B
common law on oath-taking in mind, the above provisions of the ODO
C entail the following legal requirements for taking the Legco Oath. C

D D
40. First, the content of the Legco Oath, being fixed by statute,
E E
must be strictly adhered to if a Legco member is to take the oath in

F accordance with law : Leung Kwok Hung v Legislative Council F

Secretariat, HCAL 112/2004, unreported, 6 October 2004, per Hartmann
G G
J (as he then was) at [27]; Chief Executive of HKSAR v President of the
H Legislative Council, per Cheung CJHC, [27].20 H

I I
41. Second, the Legco Oath must be taken in a solemn and
J sincere manner : Yau Wai Ching, Appeal Committee at [30]; Chief J

Executive of HKSAR v President of the Legislative Council, per Cheung

K K
CJHC, ibid.21
L L

42. Third, as under the common law taking an oath in a form of

M M
attestation by which the oath taker signifies that he is bound in
N conscience to conduct himself as the terms of the oath dictate, the Legco N

member taking the Legco Oath must sincerely believe in and strictly
O O
abide by the pledges contained therein when he or she takes it : Chief
P P
Executive of HKSAR v President of the Legislative Council, per Cheung

Q
CJHC, ibid, approving Chief Executive of HKSAR v President of the Q
22
Legislative Council [2016] 6 HKC 417, per Au J at [31] – [33].
R R

S S
20
The Judge described it as “the Exact Form and Context Requirement”.
21
The Judge described it as “the Solemnity Requirement”.
22
T The Judge described it as “the Substantive Belief Requirement”. T

U U

V V
 - 31 -
A A

43. The above requirements are now expressly set out in the
B B
Interpretation, at para.2(2) : Yau Wai Ching, Appeal Committee, at [30].
C C

D
D6.3 A precondition to the assumption of office D

E
44. Taking the Legco Oath is a prerequisite and precondition to
E
the assumption of the office by a Legco member : Chief Executive of
F F
HKSAR v President of the Legislative Council, per Cheung CJHC, at [27].

G
This is also plain from the wording of BL104 itself. There is no basis to G
suggest that it is not a substantive requirement or that the taking of the
H H
Oath is a mere formality.

I I

45. The Interpretation expressly stipulates the same

J J
precondition at para.2(1).
K K

D6.4 Declining or neglecting to take the Legco Oath

L L

46. Whether a Legco member fails to meet any of the above

M M
requirements in taking the Legco Oath is to be determined objectively :
N see Chief Executive of HKSAR v President of the Legislative Council, per N

Cheung CJHC, ibid; Yau Wai Ching, Appeal Committee, at [30]. When
O O
he does this intentionally, the Legco member shall be regarded in law as
P having declined or neglected to take the Legco Oath forthwith under P

section 21 of the ODO. He shall either vacate the office or be

Q Q
disqualified from entering on it, as the case may be, forthwith. The
R consequences for declining or neglecting to take the Legco Oath is R

automatic and are part of the constitutional requirement under BL104 :

S S

T T

U U

V V
 - 32 -
A A

Chief Executive of HKSAR v President of the Legislative Council, per

B B
Cheung CJHC, at [30]; Yau Wai Ching, Appeal Committee, at [28].23
C C

D
47. The Interpretation states the same consequences for D
declining or neglecting to take the Legco Oath at para.2(3).
E E

F D6.5 Role of the oath administrator and the court F

G 48. The Clerk or the President of Legco administering the taking G

of the Legco Oath plays purely an administrative role. The court is the
H H
final arbiter on the question whether a Legco member has declined or
I neglected to take the Legco Oath : Chief Executive of HKSAR v President I

of the Legislative Council, per Cheung CJHC, at [32] – [33], per Lam VP
J J
at [72] – [78], per Poon JA at [86] – [87]; Yau Wai Ching, Appeal
K Committee, at [21] – [24]. K

L L
49. The Interpretation does not expressly say that the court is
M the final arbiter. But in Chief Executive of HKSAR v President of the M

Legislative Council, Cheung CJHC at [36] firmly rejected the argument

N N
that under para. 2(4) of the Interpretation, it is for the oath administrator,
O rather than the court, to decide if the Legco Oath has been validly taken, O

or whether the purported oath taker has declined or neglected to take the
P P
oath. In a like vein, in Chief Executive of HKSAR v the President of the
Q Legislative Council, CACV 224, 225, 226 & 227/2016, unreported, 16 Q

R R

S 23
The Appeal Committee that when a Legco member inadvertently or mistakenly read the S
wrong oath, he would not have declined or neglected to take the Oath and the President of the
Legco would be acting lawfully in requesting the member to retake the Legco Oath at another
T sitting of Legco. T

U U

V V
 - 33 -
A A

January 2017, in refusing the applicants in those cases leave to appeal to

B B
the Court of Final Appeal, Poon JA rejected the same argument at [14].
C C

D
D6.6 Not a supplementation D

E
50. It is plain from the above analysis that on the various
E
matters discussed in this appeal, the Interpretation, properly understood,
F F
states what the Hong Kong law has always been. Insofar as those

G
matters are concerned, the Interpretation does not supplement BL104 or G
the ODO as contended. The contention that the Interpretation is a
H H
supplementation of BL104 and the ODO is erroneous.

I I

D6.7 Not usurping the functions of Legco

J J
51. Since the Interpretation does not have the effect of
K K
supplementing the ODO as contended, there is no substance in Mr Lee’s
L challenge that by issuing the Interpretation, the NPCSC had usurped the L

functions of Legco by enacting statutory law at the statutory level by

M M
supplementing the ODO in contravention of the PRC Government’s
N established policy regarding Hong Kong and BL17. N

O O
D7. Retrospectivity
P P
52. Lastly, we come to Mr Lee’s contention that the
Q Interpretation as a supplementation cannot operate retrospectively from 1 Q

July 1997. This question is not engaged in light of our conclusion that
R R
the Interpretation is not a supplementation. In any event, such a
S contention is not maintainable in light of the authorities, which laid down S

the proposition that an interpretation of the Basic Law issued by the

T T

U U

V V
 - 34 -
A A

NPCSC under BL158(1) has retrospective effect back to 1 July 1997 as it

B B
states what the law has always been since the coming into effect of the
C Basic Law on that date. Nevertheless, Mr Lee argued that the C

authorities do not stand in his way because :

D D

(1) In Lau Kong Yung, the Court of Final Appeal relied on the
E E
common law declaratory theory of judicial decisions to hold
F that the interpretation issued by the NPCSC of the Basic F

Law in 1999 in that case took effect on the operation of

G G
the Basic Law, that is, 1 July 1997. However, the Court of
H Final Appeal was not then made aware of the possibility that H
the NPCSC might supplement the Basic Law when it
I interprets it. It was not until two years later that the Court I

of Final Appeal in Chong Fung Yuen took into account

J J
Professor Lian’s opinion dated 10 August 1999 adduced by
K the Director of Immigration and held, by way of obiter K

dictum, that in interpreting the Basic Law, the NPCSC can

L L
clarify and supplement laws.

M (2) In other words, it was only two years after the Court of Final M

Appeal made its decision in Lau Kong Yung that it was

N N
informed, in Chong Fung Yuen, of the possibility that the

O
NPCSC might supplement the Basic Law when interpreting O
it. The Court of Final Appeal’s ruling in Lau Kong Yung
P regarding the retrospective effect of an interpretation of the P

Basic Law should be understood as a ruling only on the

Q Q
temporal effect of a clarification, as opposed to a
R supplementation. To date, there has been no direct judicial R
authority in Hong Kong based on expert evidence on PRC
S S
law that both clarification and supplementation in an

T T

U U

V V
 - 35 -
A A

B interpretation of the Basic Law should take effect on 1 July B

1997.
C C
(3) Thus, the Court of Final Appeal’s statement in Lau Kong
D Yung on the retrospectivity of an interpretation of the Basic D
Law issued by the NPCSC is not a binding authority insofar
E E
as the interpretation is a supplementation, as opposed to a
clarification, of the Basic Law is concerned.
F F

G 53. In Lau Kong Yung, the Court of Final Appeal was dealing G

with BL22(4) and BL24(2)(3) and the interpretation on it issued by the

H H
NPCSC. BL22(4) provides :
I I
“ For entry into the Hong Kong Special Administrative
Region, people from other parts of China must apply for
J approval. Among them, the number of persons who enter the J
Region for the purpose of settlement shall be determined by
K
the competent authorities of the Central People’s Government K
after consulting the government of the Region.”

L L
BL 24(2)(3) stipulates :
M M
“ The permanent residents of the Hong Kong Special
Administrative Region shall be … Persons of Chinese
N N
nationality born outside Hong Kong of those residents listed in
categories (1) and (2).”
O O

The full text of the interpretation issued by the NPCSC, containing two
P P
clauses, was set out at pp.320B-321C of the Court’s judgment. For
Q present purposes, it is not necessary to repeat the interpretation here. Q

R R
54. After going through the terms of interpretation, Li CJ held
S that clause 1 had the effect of linking BL22(4) and BL24(2)(3) in that S

T
under the interpretation, as a matter of Basic Law, permanent residents of T

U U

V V
 - 36 -
A A

the Hong Kong Special Administrative Region by descent (BL24(2)(3))

B B
must obtain exit approval from the Mainland authorities and must hold
C the one-way permit before entry into Hong Kong (p.325H-I); and that the C

interpretation has the effect that permanent residents by descent are

D D
within BL22(4) (pp.325I-326B). In our view, clause 1 is arguably a
E E
supplementation of BL22(4) and BL24(2)(3). The positon is even

F
clearer with clause 2. It stated that BL24(2)(3) means both parents of F
such persons, whether born before or after the establishment of the
G G
HKSAR, or either of such parents must have fulfilled the condition

H
prescribed by category (1) or (2) of BL24(2) at the time of their birth. H
Li CJ held that the effect of clause 2 is that BL24(2)(3) means that the
I I
person concerned must have at least one parent who was a permanent
J resident within BL24(1) or BL24(2) at the time of birth of the person J

concerned. The time limit at the time of birth is definitely a

K K
supplementation to BL24(2)(3). So when the Court of Final Appeal
L held that the interpretation had retrospective effect, it must have had in L

mind that it was a supplementation as well as clarification. It is

M M
therefore wrong to suggest, as Mr Lee did, that the Court of Final Appeal
N was only made aware of the fact that an interpretation of the Basic Law N

by the NPCSC could supplement laws two years later in Chong Fung
O O
Yuen. And its ruling in Lau Kong Yung on retrospectivity of an
P interpretation of the Basic Law by the NPCSC did not draw any P

distinction between clarification and supplementation. It must apply to

Q Q
both.
R R

55. Even assuming that the above analysis of Lau Kong Yung is
S S
incorrect, and assuming that the Court of Final Appeal was not aware of
T T

U U

V V
 - 37 -
A A

the possibility the NPCSC could supplement laws when interpreting the
B B
Basic Law until Chong Fung Yuen, the Court of Final Appeal did not in
C Chong Fung Yuen draw any distinction between clarification and C

supplementation when it reaffirmed that an interpretation of the NPCSC

D D
has retrospective effect from 1 July 1997. Indeed, in all subsequent
E E
authorities, when the Court of Final Appeal is already fully aware of such

F
possibility, the Court has consistently reaffirmed the retrospective effect F
of an interpretation of the Basic Law by the NPCSC under BL158(1)
G G
without drawing any distinction between clarification and

H
supplementation. That proposition has also been consistently applied H
and adopted at lower courts including this Court : see e.g., Chief
I I
Executive of the HKSAR v President of the Legislative Council, per
J Cheung CJHC at [53]. We therefore reject Mr Lee’s submission that J

there is no direct binding authority on the retrospective effect of an

K K
interpretation of the Basic Law issued by the NPCSC under BL158(1).
L L

56. Mr Lee also sought to rely on an extra-judicial speech

M M
delivered by Tang PJ (as he then was) at Oxford, England, on 22
N February 2018 where he suggested that the question of retrospectivity of N

an interpretation of the Basic Law by the NPCSC could be re-visited by

O O
the Court of Final Appeal.24 With respect, it is no more than a personal,
P extra-judicial opinion expressed by Tang PJ. It is not a binding P

authority.
Q Q

R R

S S

24
T At [44] – [47] of his speech. T

U U

V V
 - 38 -
A A

57. This disposes of the question whether the Interpretation, as

B B
an interpretation of the BL104 by the NPCSC under BL158(1), has
C retrospective effect since 1 July 1997. The answer must be yes. C

D D
58. Insofar as it is contended that the Interpretation is a
E E
supplementation of the ODO and hence the Judge should only regard it

F as a view expressed by the NPCSC as to how legislators should take the F

Legco Oath in future, we have already held that the Interpretation is not a
G G
supplementation of the ODO. This contention must be rejected.
H H

D8. Conclusion
I I

59. In consequence, none of the challenges mounted by Mr Lee

J J
against the validity, scope and effect of the Interpretation succeeds. We
K are able to come to the same conclusion as the Appeal Committee did in K

Yau Wai Ching. Grounds 1 to 3 must therefore fail.

L L

M 60. We now consider Grounds 4 to 7 in turn. As said, they M

presuppose that the Interpretation is valid and binding on all the courts of
N N
Hong Kong. As it has retrospective effect since 1 July 1997, it is a true
O construction of BL104 on 12 October 2016 when the appellant O

purportedly took the Legco Oath.

P P

Q Q
E. GROUND 4 – PRESCRIBED BY LAW

R 61. Mr Lee argued that the requirements of taking the Legco R

Oath have to be “prescribed by law” since they are the legal requirements
S S
and preconditions for standing for election in respect of or taking up the
T T

U U

V V
 - 39 -
A A

public office specified in BL104. As such, they constitute restrictions

B B
on the appellant’s right to stand for election and right to take part in the
C conduct of public affairs. At the statutory level, insofar as a C

discretionary power is given to the Clerk and/or the President under

D D
section 19 of the ODO to determine whether a legislator elect has
E E
declined or neglected to take the Legco Oath, an adequate indication of

F
the scope of the discretion must be given to satisfy the constitutional F
requirement of “prescribed by law”. However, to date, the ODO has
G G
not been amended at the statutory level to incorporate the constitutional

H
requirements of oath-taking set out in the Interpretation; and thus does H
not provide any or any sufficiently clear guidance to the oath
I I
administrator as to how he should exercise his discretion in determining
J whether an oath is properly taken. The imposition of such requirements J

as the statutory level is thus unconstitutional. Further, the requirements

K K
of oath-taking are not formulated with sufficient precision to enable the
L citizen to regulate his conduct in that the citizen is unable to foresee, to a L

reasonable degree, the consequences of his actions. In particular, clear

M M
and definite guidelines are necessary, and cannot be replaced by
N “objective common sense” as the Judge held.25 N

O O
62. With respect, Mr Lee’s arguments are wrong.
P P
(1) Neither the Clerk nor the President of the Legco has any
Q discretionary power to determine whether a legislator-elect Q

has declined or neglected to take the Legco Oath under

R R
section 21 of ODO. As held by this Court in Chief

S
Executive of the HKSAR v The President of Legislative S

25
T Judgment, at [138]. T

U U

V V
 - 40 -
A A

B Council, they are oath administrators. And it is for the B

courts, and the courts alone, to determine if the
C C
constitutional requirements under BL104 and the legal
requirements under the ODO have been satisfied.
D D
(2) The ODO need not be amended to incorporate the
E E
constitutional requirements on oath-taking. The courts
simply interpret the ODO by adopting a purposive
F F
construction, taking into account its purpose and context,
G including BL104. Put slightly differently, as Mr Benjamin G

Yu SC (with Mr Johnny Mok SC, Mr Jimmy Ma and Mr

H H
Jenkin Suen) rightly submitted, the ODO is to be construed
I against BL104 (as interpreted by the Interpretation) as a I
purposive unity. This neither necessitates nor requires
J amendment of the ODO. J

K (3) There is no substance in the complaint that the requirements K

of oath-taking are not formulated with sufficient precision or
L based on objective and reasonable criteria. As rightly held L

by the Judge, what the legal requirements entail is an

M M
objective assessment of the oath taker’s conduct against a
N permissible range of acts of the degree of solemnity N

regarded by an ordinary and reasonable person to be

O O
commensurate and consistent with the oath-taking occasion

P
bearing in mind its importance and seriousness. This is P
necessarily a fact-sensitive question to be determined
Q objectively by the court on the particular circumstances of Q

the case. For convenience, the Judge used the shorthand

R R
“objective common sense”. But it does not mean that the
S test rightly adopted by him is vague or deficient in the way S
as contended.
T T

U U

V V
 - 41 -
A A

63. Ground 4 must for the above reasons fail.

B B

C C
F. GROUND 5 – LEGITIMATE EXPECTATION

D 64. Mr Lee complained that the Judge erred in rejecting the D

E
appellant’s argument on legitimate expectation.26 He submitted that in
E
determining whether an oath taker’s words, conduct or acts would be
F F
regarded as falling within the reasonable range of the degree of solemnity,

G
the Judge should have taken into account the appellant’s legitimate G
expectation that the clearly established Legco Practices would continue
H H
to be adopted as the benchmark for measuring solemnity in the

I oath-taking ceremony on 12 October 2016, in the absence of any notice I

to be contrary. As a matter of fact, in three circulars sent by the Clerk
J J
to all member-elect, 27 no reference was made to any of the new
K requirements of oath-taking set out in the Interpretation, and the Clerk K

and/or the President never stated that the previous standards would no
L L
longer apply.
M M

65. Put very briefly, a legitimate expectation disentitles the

N N
decision-maker entrusted with the statutory power under discussion from
O exercising the power in its discretion in such a manner that is inconsistent O

with the representation which he made giving rise to the legitimate

P P
expectation. Mr Lee’s reliance on legitimate expectation in the present
Q context is wholly misplaced. Here, for the determination if the Q

constitutional and legal requirements of taking the Legco Oath have been
R R
complied with and the consequences of non-compliance, neither the
S S

26
Judgment, at [42] – [46].
27
T Respectively dated 20 September, 7 October and 11 October 2016. T

U U

V V
 - 42 -
A A

Clerk nor the President is the ultimate decision maker. The courts are.
B B
And the questions of non-compliance and consequences of
C non-compliance are questions of law to be determined against the C

particular facts of the case. Both questions can only admit of one
D D
answer. None of them involve any discretion in determining the
E E
questions on the part of the oath administrator or indeed the courts.

F
There is no room for the doctrine of legitimate expectation to operate in F
the present context.
G G

H 66. Equally, Mr Lee’s reliance on the Legco Practices is also H

misplaced. The Legco Practices are, at the most, past decisions by the
I I
Clerk or the President as oath administrator. They cannot possibly bind
J the courts, the ultimate adjudicator on the questions of non-compliance J

and consequences of non-compliance, who have a constitutional duty to

K K
uphold the constitutional requirements under BL104.
L L

67. Ground 5 has no merit and we reject it.

M M

N G. GROUND 6 – MARGIN OF DEFERENCE N

O 68. Mr Lee argued that there is no single right answer to the O

question whether the appellant had taken the Legco Oath solemnly and
P P
sincerely and the Clerk is better placed than the court in making this
Q judgmental decision because the Clerk was present at the scene and was Q

able to judge whether or not the appellant was sincere or solemn in

R R
taking the Legco Oath and the Clerk is more familiar with traditions and
S practices of the Legco and is in a better position to determine what would S

T
fall within the acceptable range or solemnity in the context of the Legco, T

U U

V V
 - 43 -
A A

which is a political forum with its own traditions and practices. Mr Lee
B B
therefore submitted that the Judge should have accorded a wide margin
C of discretion and/or given substantial weight to the decision of the Clerk. C

D D
69. As said, the validity of the taking of the Legco Oath by a
E E
member is a question of law to be determined by the courts by reference

F to the actual circumstances as to how it was taken. Whether the court F

would take into account the Clerk’s decision and how much weight is to
G G
be attached to it are entirely a matter for the first instance court. Unless
H it can be demonstrated that the first instance court had plainly erred, there H

is no basis for the Court of Appeal to interfere.

I I

J 70. Here, as pointed out by Mr Yu, the Clerk did not provide J

any reasons why he considered the appellant’s Oath taking was valid. It
K K
is thus not clear why he so decided. In the circumstances, his decision
L is of little weight to the Judge. Since the whole episode of how the L

appellant purported to take the Legco Oath was recorded by transcript

M M
and videotape, the Judge was in as good a position as the Clerk to view
N and assess the appellant’s conduct. Mr Lee has not been able to satisfy N

us that the Judge had erred as contended.

O O

P P
71. Ground 6 fails.

Q Q

H. GROUND 7 – FINDINGS BY THE JUDGE

R R
72. Mr Lee argued that oath-taking begins when a member-elect
S S
reads out the first word of the Legco Oath prescribed in Schedule 2 of the

T ODO, and ends when he/she reads out the last word thereof. T

U U

V V
 - 44 -
A A

Oath-taking does not commence right after a member-elect is called upon

B B
to take the Legco Oath. He therefore contended that the Judge therefore
C erred : C

D (1) In holding that since the appellant’s “chanted slogans were D

all carried out after he had been requested by the Clerk to

E E
take the Legco Oath, and close to and after the reading of
F the Legco Oath”, he had failed to comply with the Exact F

Form and Content Requirement; and

G G
(2) In taking into account the words “係好莊嚴架” uttered by
H the appellant (which, it is submitted, was not a “sarcastic H

remark”) before taking the Oath when he held that the

I I
Solemnity Requirement was not met.

J J
73. Mr Lee further argued that a reasonable person would not
K objectively understand that the appellant “sought to incorporate in the K

oath taking itself additional message”. In particular, on an objective

L L
assessment of the evidence, the appellant did not intend to incorporate as
M part of his Oath (i) the holding of an opened umbrella, (ii) the chanting of M

N
slogans, or (iii) the tearing of piece of paper with a message on it. In
N
any event, a reasonable person would not consider that the manner in
O O
which the appellant took the Oath went “well outside an objective

P
reasonable range of such requisite solemnity and sincerity”. P

Q Q
74. Mr Lee thus contended that the appellant had duly complied
R with the Solemnity Requirement and the Exact Form and Content R

Requirement in taking the Oath.

S S

T T

U U

V V
 - 45 -
A A

75. Ground 7 is a challenge of the conclusion by the lower court

B B
on a question of fact. Mr Lee has to surmount the high hurdle of
C convincing us that the findings made by the Judge below were plainly C

wrong before we can interfere : ZJW v SY, CACV 10/2017, unreported, 1

D D
December 2017, per Poon JA at [26]-[32], especially 32(2). What Mr
E E
Lee has agreed is essentially repeating the appellant’s case below. That

F
is hardly sufficient to show that the Judge was plainly wrong in his F
factual findings that the appellant failed to meet the Solemnity
G G
Requirement and the Exact Form and Content Requirement.

H H

76. We are not impressed by Mr Lee’s argument that the court

I I
should limit its consideration to what the oath-taker said and did in the
J duration between reading out the first and last word of the Legco Oath, J

thereby ignoring all other acts and words which, on an objective view,
K K
are found to have been intended to form part of the oath-taking conduct.
L The limit advocated by Mr Lee is artificial and divorced from reality. L

M M
77. We have carefully considered the evidence on how the
N appellant purportedly took the Legco Oath and the Judge’s evaluation N

and assessment of the evidence. In our view, the Judge was perfectly
O O
entitled to make the factual findings as he did after a full merits review of
P the facts before him. Contrary to Mr Lee’s contention, his findings are P

plainly right, not plainly wrong.

Q Q

R R
78. Ground 7 fails.

S S

T T

U U

V V
 - 46 -
A A

I. DISPOSITIONS
B B

C C
79. For the above reasons, we dismiss the appellant’s appeal.

D D

80. Costs should follow the event. We make an order nisi that
E E
the appellant is to pay the Chief Executive of the Hong Kong Special
F Administrative Region and the Secretary for Justice costs of the appeal, F

with a certificate for 2 counsel, to be taxed if not agreed. 28 The

G G
appellant’s own costs are to be taxed in accordance with the legal aid
H regulations. H

I I

J J

K K

L L

(Johnson Lam) (Aarif Barma) (Jeremy Poon)

M Vice President Justice of Appeal Justice of Appeal M

N N

O Mr Benjamin Yu SC, Mr Johnny Mok SC, Mr Jimmy Ma and Mr Jenkin O

Suen, instructed by Department of Justice, for the Plaintiff
P (Respondent) in CACV 200/2017 and the 1st and 2nd Applicants P
(1st and 2nd Respondents) in CACV 201/2017
Q Q
Mr Martin Lee SC, Mr Carter Chim and Ms Senia Ng, instructed by
JCC Cheung & Co, assigned by the Director of Legal Aid, for the
R R
Defendant (Appellant) in CACV 200/2017 and the Interested Party
(Appellant) in CACV 201/2017
S S

28
Pursuant to his request based on the consideration of saving costs, the 3rd respondent has been
T excused from attendance. T

U U

V V
 - 47 -
A A

B B
Lo & Lo, for the Respondent (3rd Respondent) in CACV 201/2017,
attendance excused
C C

D D

E E

F F

G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V
 The Oath-taking Cases and the
NPCSC Interpretation of 2016:
Interface of Common Law and
Chinese Law
❒

Han Zhu* and Albert HY Chen**

The oath-taking cases involving the disqualification of six Legislative Councillors

in Hong Kong and the National People’s Congress (NPCSC) Interpretation in
2016 on oath taking were highly controversial. This article traces the origins
of the oath-taking law in Hong Kong to its English roots and explains the
difference today between the consequences of failure to comply with the oath-
taking requirements by Hong Kong legislators on the one hand and by British
Members of Parliament on the other hand. It analyses the distinction between
interpretation, supplementation and amendment of the Basic Law in the context
of NPCSC interpretations. It also considers the circumstances in which an
NPCSC interpretation should have retrospective effect.

1. Introduction
After the end of the Occupy Central movement in 2014, localism and
pro-independence activism escalated in the Hong Kong Special
Administrative Region (HKSAR). Some of the pro-independence
advocates attempted to move their street activism into political
institutions by running in the 2016 Legislative Council (LegCo)
elections. Two pro-independence activists, Leung Chung-hang and Yau
Wai-ching, were successfully elected, but they took their oath of office
in a manner that was insulting to the Chinese people and the People’s
Republic of China (PRC). This triggered a judicial review that resulted
in their disqualification as LegCo members. Subsequently, the HKSAR
Government also brought judicial review proceedings against four other
localist or pan-democratic LegCo members. They were likewise unseated

*
Assistant Research Officer, Centre for Chinese Law, Faculty of Law, University of Hong Kong.
**
Cheng Chan Lan Yue Professor of Constitutional Law, Faculty of Law, University of Hong
Kong. This article draws on our co-authored Chinese article, “A legal analysis of the Hong Kong
Legislative Council election 2016 and the oath-taking controversy”, published in (2017) 4 Law
Review（法學評論） 24–37. We are grateful to Law Review for permitting the translation of
relevant parts of the article.

HKLJ-49(1).indb 381 01/04/19 4:07 PM

 382 Han Zhu and Albert HY Chen (2019) HKLJ

by the court on the ground of their failure to take the oath properly.
During the judicial proceedings in Leung and Yau, the Standing Committee
of the National People’s Congress (NPCSC) issued an Interpretation
on Art 104 of the Basic Law (BL) (the 2016 NPCSC Interpretation)
to elaborate the legal requirements of oath taking.1 The oath-taking
cases and the 2016 NPCSC Interpretation have given rise to great
controversies and debates,2 as they raised fundamental constitutional
issues relating to the BL and the “One Country, Two Systems”
arrangement, such as the relationship between the central government
and the HKSAR, freedom of speech, rule of law, judicial independence,
separation of powers, etc.
This article traces the origins and development of the oath-taking
laws in Hong Kong with reference to the relevant laws and practices
in the United Kingdom. The comparative study shows that the oath-
taking law in Hong Kong was largely derived from relevant laws in
the United Kingdom, but due to historical reasons and Hong Kong’s
political system during the colonial period, the oath-taking law in
present-day Hong Kong stipulates more severe legal consequences than
in the United Kingdom for legislators who fail to take their oaths in
accordance with the law. This article also analyses the controversy
over the 2016 NPCSC Interpretation. The incident demonstrates the
growing interaction and increasing tension between Chinese law and
the common law system in Hong Kong after the 1997 handover. This
article considers the decisions of the Hong Kong courts on the binding
force and retrospective effect of the 2016 NPCSC Interpretation.
It examines whether such binding force or retroactivity depends on
whether the interpretation merely interprets and clarifies the relevant
provisions of the BL or whether it supplements the provisions and
creates new legal rules. This article also reviews the different schools of
thought on the retrospective effect of NPCSC interpretations among
Mainland Chinese scholars.
This article concludes that the controversies revolving around the
LegCo oath-taking cases and the 2016 NPCSC Interpretation illustrate
the unique challenges of the rule of law in the HKSAR. Hong Kong’s

1
“Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative
Region of the People’s Republic of China by the Standing Committee of the National People’s
Congress” (7 November 2016), available at http://www.basiclaw.gov.hk/en/basiclawtext/images/
basiclawtext_doc25.pdf (visited 7 November 2018).
2
See generally, Johannes Chan, “A Storm of Unprecedented Ferocity: The Shrinking Space
of the Right to Political Participation, Peaceful Demonstration, and Judicial Independence
in Hong Kong” (2018) 16 I-CON 373; PY Lo, “Enforcing an Unfortunate, Unnecessary and
‘Unquestionably Binding’ NPCSC Interpretation” (2018) 48 HKLJ 399.

HKLJ-49(1).indb 382 01/04/19 4:07 PM

 Vol 49 Part 1 Oath-taking and NPCSC Interpretation of 2016 383

common law system was largely transplanted and inherited from

Britain during the colonial era; it had to adapt itself to a new post-1997
constitutional framework. On the one hand, a pluralistic and increasingly
polarised democratic politics has continued to evolve in Hong Kong
after 1997. On the other hand, the HKSAR is an integral part of an
increasingly powerful sovereign nation-state with a socialist legal system
and an authoritarian polity. Hong Kong’s judiciary is caught between, and
has to cope with the tension between, a semi-democratic and common
law-based domestic political and legal system and the exercise of supreme
authority by the Chinese Communist Party-led NPC as the highest organ
of state power under the PRC Constitution. In the HKSAR, the drama
of law and power3 has been played out in politically sensitive cases in
a deeply divided society; the oath-taking cases and the 2016 NPCSC
Interpretation may be seen as the latest scene in this drama.

2. Disqualification of Six LegCo Members by the Courts4

Two young localist/pro-independence activists, Leung Chung-hang and
Yau Wai-ching, were successfully elected into LegCo in September 2016.
At the inaugural meeting of the newly elected LegCo on 12 October
2016, they were called upon, as in the case of all other legislators, to
take their oaths of office. Leung and Yau flaunted a “Hong Kong is not
China” banner, used the term “Hong Kong nation” in the course of taking
the oath, and slurred the “People’s Republic of China” into “people’s
re-fucking of Chee-na”. Their purported oaths were declared invalid by
the administrator of oath.5 Subsequently, on 18 October, the President
of LegCo (LegCo President) gave them permission to retake their oaths
at the LegCo meeting to be held on the following day.6 On the same
day, the Chief Executive and Secretary for Justice filed an urgent judicial
review application before the Court of the First Instance (CFI) of the

3
See Yash Ghai’s discussion of “the theatre of law” and “the theatre of power” in the early years
of the HKSAR: Yash Ghai, “A Play in Two Acts: Reflections on the Theatre of the Law” (1999)
29 HKLJ 5.
4
The information about the facts of these cases is mainly extracted from the judgments of the
CFI in Leung and Yau (Chief Executive of the HKSAR v President of the Legislative Council [2016] 6
HKC 417 (CFI, 15 November 2016); [2017] 1 HKLRD 460 (CA, 30 November 2016); (2017)
20 HKCFAR 390 (application for leave to appeal rejected by CFA on 1 September 2017),
and the subsequent case of four other LegCo members — Nathan Law Kwun Chung (Chief
Executive of HKSAR v President of Legislative Council [2017] 4 HKLRD 115 (CFI, 14 July 2017));
Secretary for Justice v Leung Kwok Hung [2019] HKCA 173 (CA, 15 February 2019).
5
See Leung and Yau (CFI), [5], [6].
6
See “President’s Ruling on the Validity of the Legislative Council Oath Taken by Six Members
at the Council Meeting of 12 October 2016”, available at http://www.legco.gov.hk/yr16-17/
english/pre_rul/pre20161018-ref-e.pdf (visited 7 November 2018).

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 384 Han Zhu and Albert HY Chen (2019) HKLJ

High Court, which sought to disqualify Leung and Yau as legislators,

quash the decision of the LegCo President to permit them to retake the
oaths and to obtain an injunction against their retaking of the oaths. The
court granted leave for judicial review but denied the interim injunction.
At the LegCo meeting on 19 October, pro-establishment legislators
staged a walkout to prevent Leung and Yau from retaking their oaths.7
On 3 November, the court heard the case but reserved judgment.
On 7 November, the NPCSC issued the 2016 NPCSC Interpretation
which, inter alia, elucidated the requirements for a valid oath of office.
On 15 November, the CFI rendered its judgment and held that the two
legislators-elect had been disqualified. The appeals of Leung and Yau
were dismissed by the Court of Appeal (CA) on 30 November of 2016.
Leave to appeal further to the Court of Final Appeal (CFA) was denied
on 1 September 2017.
Following the decision of the CA in Leung and Yau, the Hong Kong
Government initiated similar judicial proceedings to seek to disqualify
another four “pro-democracy” LegCo members, namely Nathan Law
Kwung Chung, Leung Kwok Hung, Lau Siu Lai and Yiu Chung Yim.
The four lawmakers had taken their oaths of office in a dubious manner.
However, unlike the cases of Leung and Yau, the validity of their oaths had
been accepted by the administrator of the oaths, and they were allowed to
assume their office as LegCo members. The details are as follows.8
At the inaugural meeting of the newly elected LegCo on 12 October
2016, the four LegCo members-elect read out the prescribed LegCo
oath completely without altering the substance of the oath, but in the
course of taking the oath they created a farce by reading the oath at an
extremely slow pace, or adding messages before and after the oath, or
carrying out various flamboyancies, such as holding an opened yellow
umbrella (which was taken to symbolise the 2014 Occupy Central
Movement). Among them, only the oath taken by Leung Kwok Hung
was regarded as valid at the time he first took the oath. On 18 October,
the LegCo President ruled that Nathan Law’s oath was valid while
those by Lau Siu Lai and Yiu Chung Yim were invalid, but allowed the
latter two to retake their oaths. They subsequently retook their oaths
which were accepted as valid, and they were allowed to assume office.
On 2 December, the government initiated judicial proceedings against

7
“Explained: Walkouts and Oath-Taking Controversy at Start of LegCo Term” South China
Morning Post (26 October 2016), available at http://www.scmp.com/news/hong-kong/politics/
article/2040147/explained-walkouts-and-oath-taking-controversy-start-legco (visited 7
November 2018).
8
The description in the following paragraph of what happened is largely taken from the judgments
of the CFI in these cases.

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 Vol 49 Part 1 Oath-taking and NPCSC Interpretation of 2016 385

these four LegCo members. In July 2017, the CFI held that they had
been disqualified as a result of their failure to take their oaths properly.9
Leung and Lau sought to appeal to the CA, while Law and Yiu abstained
from appealing and subsequently became candidates in the by-elections
held to fill the vacated seats.10 Leung’s appeal to the CA was dismissed
on 15 February 2019.11
The disqualification rulings had substantial political impact, as the
voting power of the “pro-democracy” bloc in LegCo has been curtailed. In
particular, they lost their veto power over motions initiated by individual
LegCo members which, unlike motions initiated by government, are
subject to the separate counting mechanism (separate counting in two
groups — legislators elected by universal suffrage and those elected
by functional constituencies).12 As a result, the “pro-Establishment”
legislators succeeded to amend the LegCo Rules of Procedure on 15
December 2017 for the purpose of restraining filibuster.

3. Comparative Analysis of the Two Oath-Taking Cases

Although the legislators concerned were disqualified by the court in
both Leung and Yau and the subsequent case of the four LegCo members,
the legal issues and focuses of the debate in the two cases were not
the same.

(a) Different Legal Disputes

The key legal dispute in Leung and Yau concerned the application of the
“non-intervention principle”, according to which the court should, as
far as possible, refrain from intervening in the internal processes of the
legislature.13 In particular, the court had to consider whether it should
review or overturn the decision of the LegCo President to allow the
legislators-elect to retake their oaths after their first attempt to take the
oath was considered invalid. In Leung and Yau, Leung and Yau seemed to

9
Nathan Law Kwun Chung (n 4 above).
10
Tony Cheung and Jasmine Siu, “Ex-lawmakers Launch Appeal Bid to Regain Lost Seats” South
China Morning Post (12 September 2017) C1; “Legislative Council By-election Notice issued
by the Electoral Affairs Commission” (14 September 2017), available at http://www.info.gov.
hk/gia/general/201709/14/P2017091400808.htm (visited 7 November 2018). Subsequently, Lau
Siu Lai dropped her appeal and tried to become a candidate in the by-election of November
2018. As mentioned below, she was disqualified as a candidate in the by-election.
11
Leung Kwok Hung (n 4 above).
12
See Annex II, Section II of the BL.
13
This principle has been applied in Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555 and
Leung Kwok Hung v President of the Legislative Council (2014) 17 HKCFAR 841.

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 386 Han Zhu and Albert HY Chen (2019) HKLJ

have conceded that they had not taken a valid oath on their first attempt
to take the oath on 12 October 2016. By contrast, the core legal issue
in the case of the four LegCo members was whether the legislators had
validly taken their oaths when they were called upon to take the oaths at
the inaugural meeting on 12 October 2016.
In Leung and Yau, Leung and Yau never had the chance to retake their
oaths after their first attempt to take the oath failed. However, in the
case of the four LegCo members, Leung and Law were considered to have
validly taken their oaths upon their first attempt to do so, and although
Lau’s and Yiu’s first attempts were unsuccessful, they were allowed to
retake the oaths and the second attempts were considered successful.
Thus, all four legislators had been allowed to assume office before the
government brought judicial proceedings against them.
In Leung and Yau, Leung and Yau had so substantially departed from
the form and content of the prescribed oath that it was hardly arguable
that they had not “declined or neglected” to take the oath.14 Therefore,
they relied mainly on the “non-intervention principle” to urge the court
not to intervene in the internal operations of LegCo and the decision of
the LegCo President.15 The court rejected their submissions and ruled
that, in a region with a written constitution like the HKSAR, there are
limitations to the non-intervention principle, as the court is explicitly
authorised to interpret and apply the constitution. More specifically,
given the oath-taking requirements in the BL and in HKSAR legislation,
the court necessarily has the final say over whether the oath of office
has been validly taken and whether the office-holder has validly assumed
office.16 Hence the court ruled that the non-intervention principle did
not operate in Leung and Yau in such a way as to shield the decision of
the LegCo President (to allow the legislators to retake their oaths) from
judicial review. The court applied s 21 of the Oaths and Declarations
Ordinance (Cap.11) (ODO), and held that Leung and Yau had been
immediately and automatically disqualified by operation of law upon
their declining to take the oath when first called upon to do so.17

14
See Leung and Yau (CFI) (n 4 above), [13]; ODO s 21.
15
Another legal issue in Leung and Yau was the privilege or immunity of LegCo members’ speech.
The court also rejected the argument on privilege on the ground, inter alia, that Leung and Yau
had not validly taken the oath and assumed office; thus their speech during oath-taking did not
fall within the scope of the privilege. See Leung and Yau (CFI) (n 4 above), [82]–[91]; Leung and
Yau (CA) (n 4 above), [51].
16
Under s 73 of the Legislative Council Ordinance(Cap 542), the court has the power to make
declarations in proceedings “against any person who is acting, claims to be entitled to act, as a
Member [of the Legislative Council] on the ground that the person is disqualified from acting as
such”.
17
See Leung and Yau (CFI) (n 4 above), [114].

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 Vol 49 Part 1 Oath-taking and NPCSC Interpretation of 2016 387

As it had already been held (by both the CFI and the CA) in Leung
and Yau that the non-intervention principle was not applicable in the
oath-taking controversy, the focal issue in the case of the four LegCo
members was whether they had validly taken their oaths on 12 October
2016, which in turn depended on the answer to the question of what
were the legal requirements for taking the oath. On the basis of the BL,
the 2016 NPCSC Interpretation, the ODO and relevant case law, the
CFI developed a three-fold test for determining whether the LegCo
oath had been validly taken by a legislator in both form and substance
as stipulated by law.18 The court stressed that this is an “objective test”
in the sense that the court would only examine the objective effect of
the words and conduct of the oath taker, without considering the oath
taker’s subjective intentions. Applying this test, the CFI ruled that the
four LegCo members had all failed to fulfill the legal requirements for a
valid oath of office when they purported to take the oath on 12 October;
they were accordingly unseated.

(b) The 2016 NPCSC Interpretation as the Legal Basis for the
Judicial Decisions
In both cases, the courts generally adopted a deferential attitude towards
the 2016 NPCSC Interpretation, following the principles stipulated
by the CFA in Lau Kong Yung and Chong Fung Yuen.19 However, in the
case of the four LegCo members, the court relied more heavily than in
Leung and Yau on the 2016 NPCSC Interpretation as one of the primary
legal grounds for disqualifying the legislators. The issues of the validity
and retroactivity of the interpretation were also more prominent in the
former case.
The 2016 NPCSC Interpretation was promulgated during the course
of the judicial proceedings in Leung and Yau; issues of the validity and
retrospective effect of the interpretation were raised. Leung and Yau
contended that the 2016 NPCSC Interpretation was invalid to the extent
that it substantially amended the BL in the name of interpretation, which
is beyond the scope of the power of interpretation of the NPCSC under
the BL.20 The CFI largely avoided the issue in Leung and Yau by ruling
that the court would decide the case in the same way irrespective of

18
The legal requirements include “the Exact Form and Content Requirement”, “the Solemnity
Requirement” and “the Substantive Belief Requirement”: see Nathan Law Kwun Chung (n 4
above), [26]–[28]. The CFI’s approach in this regard was affirmed on appeal to the CA.
19
Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300; Director of Immigration v Chong
Fung Yuen (2001) 4 HKCFAR 211.
20
See Leung and Yau (CFI) (n 4 above), [125].

HKLJ-49(1).indb 387 01/04/19 4:07 PM

 388 Han Zhu and Albert HY Chen (2019) HKLJ

whether the 2016 NPCSC Interpretation existed, because the operation

of Hong Kong’s domestic law (particularly s 21 of the ODO) alone would
have resulted in the disqualification of Leung and Yau.21 Nevertheless,
the CFI opined that, according to the principles established by the
CFA in previous cases,22 the NPCSC interpretation is binding on Hong
Kong courts even if it was not issued pursuant to a reference by the CFA
under Art 158(3) of the BL.23 The CA dismissed the appeals of Leung
and Yau; as regards the interpretation, the CA pointed out that Hong
Kong courts must comply with the interpretation and do not have the
jurisdiction to review the validity of the interpretation. The CA further
opined that an NPCSC interpretation is a legal instrument issued under
the civil law system of Mainland China, and “[t]he view of a common law
lawyer, untrained in … the civil law system practised on the Mainland,
is … simply quite irrelevant”.24
In the case of the four LegCo members, the CFI not only adopted a
similar stance towards the NPCSC interpretation, but went further to
apply the interpretation as an important part of the legal basis for the
detailed requirements for valid oath taking. In particular, the CFI cited
the interpretation in emphasising the “requisite solemnity” and “sincerity”
required by oath taking.25 Both the CFI and the CA also explicitly
confirmed the retrospective effect of the 2016 NPCSC Interpretation.26
Scholarly comment on the judgment has pointed to the tension that
exists between the retrospective effect of the NPCSC interpretation
(in the sense that it governs acts and events that took place before the
interpretation was issued) and the Rule of Law requirement that the law
should be predictable in its operation and that citizens should be able to
foresee the legal consequences of their acts or behaviour.27

21
See Leung and Yau (CFI) (n 4 above), [125].
22
See works referred to in note 19.
23
See Leung and Yau (CFI) (n 4 above), [20]–[22].
24
Leung and Yau (CA) (n 4 above), [57].
25
Ibid., [19], [40](1) and [52].
26
Leung Kwok Hung ( n 11 above), [52]–[56].
27
One of the co-authors of this article has pointed to the tension that exists between the
retrospective effect of the NPCSC interpretation (in the sense that it governs acts and events
that took place before the interpretation was issued) and the Rule of Law requirement that the
law should be predictable in its operation and that citizens should be able to foresee the legal
consequences of their acts or behaviour. See 陳弘毅(Albert Chen), “應考慮從寬處理宣誓案
判決的影響”[Leniency should be Considered in Determining the Effect of the Oath-taking
Case],明報[Ming Pao], 18 July 2017, available at https://news.mingpao.com/pns/dailynews/
web_tc/article/20170718/s00012/1500314688831 (visited 7 November 2018). Chen advocated
leniency towards the four disqualified LegCo members by not requiring them to pay back LegCo
salaries and allowances that they had already been paid and/or not requiring them to pay the
government’s legal costs for the judicial review proceedings, since at the time they took the oath
they could not have reasonably foreseen the legal consequences (as subsequently determined by
the court in this case) of their manner of oath-taking.

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The need for certainty and predictability in the operation of the

law was one of the issues raised by the case of the four LegCo members.
All of them contended that they had no intention to flout the law and
pointed out that oath administrators had not in previous years held as
invalid LegCo oaths taken in manners similar to those in which some
of the four LegCo members had now taken their oaths. Nevertheless,
the court rejected their argument and ruled that past practices could not
have the effect of rendering valid the oaths of the four LegCo members
if their oaths had not been properly taken in accordance with the true
legal requirements. It was stressed that the court is the final arbiter of the
validity of the oaths taken, and it is not bound by LegCo’s past practices
or previous decisions of oath administrators.28

4. A Brief Historical Review of Oath-Taking Laws in Britain and

Hong Kong
Hong Kong as a former British colony has inherited significant portions
of English law. These include not only common law and equity but also
British legislation on which relevant Hong Kong legislation had been
modelled. A better understanding of the existing Hong Kong law on
oath taking can therefore be achieved by undertaking a historical review
of the development of oath-taking laws in the United Kingdom and a
comparative study of the oath-taking laws in the United Kingdom and
Hong Kong.

(a) Origins and Development of Oath-Taking Laws in

the United Kingdom29
Oath-taking traditions based on rituals or religious doctrines have existed
in the history of many civilisations. In Europe, the origins of oath-taking
laws may be traced back to the Middle Ages. In England, the customs
of oath taking upon assumption of public office can be traced back to as
early as the mid-thirteenth century, when oath taking applied to judges
and the King’s councillors.30 Although a legislative prescription of oaths
existed in 1346, it was not until the sixteenth century that “an entirely

28
Leung and Yau (CA) (n 4 above), [111]; Leung Kwok Hung (n 11 above), [64]–[68].
29
The discussion here of the history of English oath laws is mainly based on Enid Campbell,
“Oaths and Affirmations of Public Office under English Law: An Historical Retrospect” (2000)
21(3) Legal History 1–32; and Enid Campbell, “Oaths and Affirmations of Public Office” (1999)
25(1) Monash University Law Review 132–165.
30
Campbell (2000) (n 29 above) p 3.

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 390 Han Zhu and Albert HY Chen (2019) HKLJ

new legal regime regarding promissory oaths of office” was introduced.31

When Henry VIII broke away from the Roman Catholic Church, he
proclaimed himself the supreme head of the Church of England. A series
of oath-taking statutes were promulgated to consolidate royal authority.
The laws required oath takers to pledge loyalty to the monarch and to
acknowledge the supreme authority of the monarch over the Church of
England as well as the secular realm. The aim was to exclude Catholics
from serving in official positions, as they could only acknowledge the
Pope as the supreme religious authority. It may therefore be seen that
from their very beginnings, oath-taking laws have been closely associated
with restrictions on freedoms of religion and thought.
In the nineteenth century, radical reforms of British oath-taking
laws were introduced. They were gradually secularized; diversity
in religious beliefs was to some extent tolerated among holders of
public office. Since 1829, several statutes related to oath taking were
promulgated to allow those who did not belong to the Anglican Church
to take oaths that conformed with their religious faith, starting with
the Roman Catholics, Quakers and Jews.32 In 1866, Parliament enacted
the Parliamentary Oaths Act (the 1866 Act) regulating oath taking by
Member of Parliament (MP). In 1868, in order to reduce the length and
numbers of the wide variety of oaths that existed at the time, Parliament
passed the Promissory Oaths Act (the 1868 Act), which prescribed the
oaths to be taken by judges and high-level officials.33 The affirmation
was introduced as an alternative to the oath, but it was only applicable
to members of some Christian sects, such as Quakers and Moravians.34
Atheists were still barred from making an affirmation (or taking an
oath) so as to assume public office.
The Bradlaugh case that was cited in the two oath-taking cases in the
HKSAR was a milestone in the development of the English law on oath of
office. In Leung and Yau, Bradlaugh was cited by Leung and Yau in support
of the “non-intervention principle”. Actually, the Bradlaugh incident had
far-reaching significance in precipitating the reform of the oath-taking

31
Ibid., p 6.
32
Groups for whom oath-taking for public office became possible at various points in time include
Roman Catholics, Quakers and Jews. The relevant statutes include the Roman Catholic Relief
Act 1829, the Quakers and Moravians Act 1833 and the Jews Relief Act 1858. See Michael
Everett and Danielle Nash, The Parliamentary Oath (House of Commons Library Briefing
Paper, 2016) p 19, available at https://researchbriefings.parliament.uk/ResearchBriefing/
Summary/CBP-7515 (visited 7 November 2018).
33
See, HL Deb 18 February 1868, Vol 190, cc 851–858, available at http://hansard.millbanksystems.
com/lords/1868/feb/18/second-reading (visited 7 November 2018).
34
Campbell (1999) (n 29 above) p 136.

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law to allow atheists to make an affirmation and take up public office,

which marked the secularisation of oath taking in the United Kingdom.
Charles Bradlaugh was an atheist and publicly declared his atheism.
Before 1885, he was elected four times as a member (MP) of the House of
Commons, but was disqualified four times for non-compliance with the
oath-taking requirement in the 1866 Act, which did not allow atheists to
make affirmations (or take oaths). He was successfully re-elected in every
by-election following his removal from Parliament. Finally, when he was
elected as MP for the fifth time in 1885, he was allowed to affirm and
take up his seat. After assuming office, Bradlaugh promoted the reform
of the law on oath taking, leading to the enactment of the Oaths Act of
1888, which allowed individuals including atheists who were not willing
to swear a religious oath to make an affirmation instead.35
The abovementioned legal reforms in the nineteenth century shaped
the current legal framework that governs oath taking for office holders
in the United Kingdom today. Under the reformed oath-taking law,
individuals would no longer be prevented from assuming office simply
because the required oath is incompatible with their religious beliefs.
However, disputes surrounding oath taking have not completely subsided.
Instead, they have turned from religious issues to political ones; the
question now is whether the required oath of office prevents individuals
with certain political beliefs to assume office because the text of the oath
is incompatible with their political belief.36 Hence oath-taking
controversies in this day and age are concerned with questions of national
identity and the legitimacy of the political system, as is the case in
Hong Kong.

(b) Oath-Taking Laws in Hong Kong: Inheritance and Adaptation

The existing ODO in the HKSAR can be traced back to the ODO
enacted in 1972 in colonial Hong Kong. The 1972 Ordinance was largely
modelled on the abovementioned Promissory Oaths Act 1868.37 After the
1997 handover, the HKSAR legislature revised the ODO in accordance
with the new constitutional order of “One Country, Two Systems” and
Art 104 of the BL, but the basic structure and main features of the law
have largely remained the same. Section 21 of the ODO, which stipulates

35
On Bradlaugh case, see Thomas Erskine May, A Treatise on the Law, Privileges, Proceedings and
Usage of Parliament (London: Butterworths, 9th ed., 1883) pp 210–216; Campbell (1999) (n 29
above) pp 25–27; Everett and Nash (n 32 above) pp 25–26.
36
See text and works referred to in notes 44 and 45 below.
37
As indicated in parenthesis in the official text of the Ordinance.

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 392 Han Zhu and Albert HY Chen (2019) HKLJ

the legal consequences of declining or neglecting to take the oath of

office when called upon to do so, is very similar in wording to s 7 of the
1868 Act. However, there are two significant differences between the
statutory regimes of oath taking in the United Kingdom and Hong Kong.
First, the UK legislation distinguishes between Parliamentary oaths
and oaths taken by judges and holders of high-level public office in
the government, while there is no such distinction in Hong Kong. As
mentioned above, the 1868 Act only applies to high-level officials and
judges,38 while the 1866 Act specifically governs Parliamentary oaths. In
contrast, the ODO in Hong Kong equally applies to LegCo members,
members of the Executive Council, senior government officials, judges
and judicial officers and some other public office holders, without
differentiating between elected legislators and appointed officials or
judges.
Second, and this is closely related to the first point, the legal
consequences for legislators who fail to take a valid oath are also different
in the United Kingdom and Hong Kong. Under s 21 of the ODO, any
holder of public office who is required by law to take an oath of office,
including any LegCo member, who declines or neglects to take the oath
when “duly requested” to do so shall be disqualified or have his/her office
vacated. In the cases of Leung and Yau and the four other LegCo members,
the courts have held that such disqualification and vacation of office are
the automatic and immediate consequences of failure to take the oath.
The disqualification ensues by operation of law, and the court simply
declares and confirms that this has happened.39
By contrast, MPs in the United Kingdom who fail to take the
Parliamentary oath will not be automatically and immediately disqualified.
Although s 7 of the 1868 Act stipulates the same legal consequences for
failure to take the oath as s 21 of the ODO, the 1868 Act only applies to
senior officials and judges but not MPs. The 1866 Act, which specifically
regulates Parliamentary oaths, stipulates more lenient consequences for
non-compliance with the oath-taking requirement. According to s 5 of
the 1866 Act, an MP who has not validly sworn the required oath or
made the corresponding affirmation cannot sit in any debate or vote in

38
See the Schedule of the 1868 Act.
39
See Leung and Yau (CFI) (n 4 above), [94]. Although the court did not take into consideration
Campbell’s article published in 1996, the article supports the view that such disqualification
may occur by operation of law: see Enid Campbell, “Termination of Appointments to Public
Offices” (1996) 24 Federal Law Review 1–41 at 31–32: “An instrument creating an office or
defining the terms of appointment to an office may provide that, on the happening of specified
events, the office is forfeited or becomes vacant. … the effect of legislation of this kind is that
on the occurrence of any of those events, an office-holder automatically loses office …”.

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Parliamentary proceedings, but he will not be automatically disqualified

as an MP or have his seat vacated. However, a member of the House
of Commons who violates s 5 (by participating in Parliamentary
proceedings) shall be subject to a fine of 500 pounds, and his seat shall be
vacated. The same fine applies to members of the House of Lords in such
circumstances, but their seats will not be vacated.40
In the United Kingdom, MPs who have not taken the required
oath are not paid their salary, but they can still make use of facilities
in Parliament (except that new members of the House of Lords cannot
use the facilities of the House “before taking their seat for the first
time”).41 MPs who have not taken the oath may also claim allowances
for engaging in activities as MPs in their own constituencies (including
the employment of staff). On the other hand, Peers (ie, members of
the House of Lords), who are not salaried, cannot receive the daily
allowance or reimbursement of expenses until they have taken the
oath or made the affirmation.42 Generally speaking, the extent of
Parliament services and financial support accessible to MPs who have
not sworn in are matters of the internal decisions of Parliament and are
still disputable issues today.43
From a historical point of view, vacation of MPs’ seats following
failure to swear the Parliamentary oath has seldom occurred in the UK
Parliament. The year 1924 was the last time an MP’s seat was declared
vacant on the ground of violation of s 5 of the 1866 Act.44 In recent
decades, pro-separatism Sinn Fein members elected to Parliament
from Northern Ireland have adopted an active abstentionist policy: they
refused to take the Parliamentary oath because they did not recognise
the British Crown’s sovereignty over any part of Ireland. Consequently,
they have only maintained their titles as MPs, but have not been able
to participate in the proceedings of the House of Commons.45 A Sinn
Fein member elected to Parliament sought to challenge the oath-taking
requirement stipulated by the 1866 Act as a violation of freedoms of

40
Section 5 of the 1866 Act.
41
House of Lords, Companion to the Standing Orders and Guide to the Proceedings of the House of
Lords (2017) para 1.15, available at https://www.parliament.uk/business/publications/house-of-
lords-publications/rules-and-guides-for-business/companion-to-the-standing-orders/ (visited 7
November 2018).
42
House of Lords, Guide to Financial Support for Members (September 2016) para 2.1.2, available
at https://www.parliament.uk/documents/lords-finance-office/2016-17/Guide-2016-17.pdf
(visited 7 November 2018).
43
Everett and Nash (n 32 above) pp 12–13.
44
An MP named John Jacob Astor inadvertently voted without having taken the oath; his seat
was declared vacant: see Everett and Nash (n 32 above) p 10.
45
Ibid., p 12.

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expression and religion, but the challenge was unsuccessful before the
UK courts and the European Court of Human Rights.46
Historical factors may explain why Hong Kong has not followed
the British approach in establishing separate oath-taking regimes for
senior officials and judges on the one hand and legislators on the other
hand. The ODO was enacted during the colonial period at a time
when all major organs of the colonial government, including both
the LegCo and Executive Council, consisted of members appointed
by the Governor, and there were no elected representatives of Hong
Kong people in the legislature.47 It was not until 1985 that a portion of
seats in the LegCo were opened up for election by relatively small-scale
“functional constituencies” elections.48 From the very beginning, the
ODO did not distinguish between the legal consequences for failure to
take the required oath by Executive Council members and judges on
the one hand and LegCo members on the other hand. Such a “non-
discriminatory” approach was inherited by the post-1997 version of the
ODO, even though the LegCo of the HKSAR is now wholly elected —
partly by functional constituencies and partly by universal suffrage in
geographical constituencies.49
In the United Kingdom, the legal regime for oath taking has
further evolved in recent decades. As separatism has become an issue
in the United Kingdom, the legislation on oath taking by members of
legislative assemblies in regions practising autonomy granted by
devolution provides an interesting comparison with Hong Kong under
“One Country, Two Systems”. Under s 84 of the Scotland Act (SA) 1998
and s 23 of the Government of Wales Act (GWA) 2006, members of
the Scottish Parliament and the National Assembly for Wales (Welsh
Assembly) have to swear in or affirm within two months of their being
elected; otherwise they shall be disqualified.50 These provisions seem to
imply that a member of the Scottish Parliament or the Welsh Assembly
may attempt to take the requisite oath more than once within the two-
month period; they would only be disqualified if, after the two months

46
See Martin McGuinness v United Kingdom (39511/98), 8 June 1999,available at http://hudoc.
echr.coe.int/eng?i=001-4860 (visited 7 November 2018).
47
See Albert HY Chen, “Development of Representative Government”, in Johannes Chan and
CL Lim (eds), Law of the Hong Kong Constitution (Hong Kong: Sweet & Maxwell, 2015) pp 246,
247–252.
48
By 1995, all members of LegCo were elected. Ibid., pp 255–259.
49
Ibid., p 261.
50
See the 1998 Scotland Act, available at http://www.legislation.gov.uk/ukpga/1998/46/contents
(visited 7 November 2017); the 2006 Government of Wales Act, available at http://www.
legislation.gov.uk/ukpga/2006/32/contents (visited 7 November 2018). The 2-month period
may be extended under certain circumstances.

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have elapsed, they still have not validly taken or retaken the oath. By
contrast, members of the Northern Ireland Assembly are not required to
take an oath, but only need to sign the Assembly’s Roll of Membership51
and an undertaking on anti-paramilitarism.52
It may therefore be seen that the legal consequences for members
of the Scottish Parliament and Welsh Assembly who refuse to take the
oath are more severe than those stipulated by s 5 of the 1866 Act for
MPs at the Westminster Parliament who fail to take the oath. Some
pro-nationalist members of the Scottish Parliament were opposed to the
content of the oath, which requires swearing allegiance to the monarch.
To demonstrate their political stance, they prefaced their oath with
a declaration that pledged loyalty to the Scottish people. In practice,
such manner of oath taking has been accepted as valid,53 which may
be contrasted with the court’s decision in the case of the four LegCo
members in Hong Kong.54

(c) Reflections on the Oath-Taking Cases

The above comparison of the oath-taking laws in Britain and Hong Kong
enables the oath-taking cases in Hong Kong to be viewed from a broader
perspective. For instance, some scholars in Hong Kong are critical of the
courts’ decisions that a LegCo member-elect is automatically disqualified
upon failure to take the oath when first called upon to do so. Their
reading of ss 19 and 21 of the ODO is such that “a lawmaker can only be
disqualified for declining to take the requisite oath if he had not taken
a valid oath after a reasonable time had elapsed”.55 This approach is
reminiscent of that adopted by s 84 of the SA and s 23 of the GWA as
discussed above. However, it may be doubted whether this is a correct
interpretation of the ODO. A comparison between ss 19 and 21 of the
ODO and s 84 of the SA and s 23 of the GWA shows that the language
used is quite different. Unlike the SA and GWA, the ODO does not grant
any specific period of time within which LegCo members should take the

51
Order 3(7)(8), Standing Orders of the Northern Ireland Assembly (2016),available at http://
www. niassembly.gov.uk/assembly-business/standing-orders/ (visited 7 November 2018).
52
Section 8 of the Northern Ireland (Stormont Agreement and Implementation Plan) Act 2016,
available at http://www.legislation.gov.uk/ukpga/2016/13/contents/enacted/data.htm (visited 7
November 2018).
53
Everett and Nash (n 32 above) pp 32–33.
54
In this case, Nathan Law Kwun Chung, one of the four LegCo members concerned, was
disqualified for inserting additional phrases before and after he read out the words of the
affirmation. He also adopted a distinct high rising tone (as if he was asking a question) whenever
he spoke the word “國” (nation): see Nathan Law Kwun Chung (n 4 above), [79]–[83].
55
Po Jen Yap and Eric Chan, “Legislative Oaths and Judicial Intervention in Hong Kong” (2017)
47 HKLJ 1 at 1.

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 396 Han Zhu and Albert HY Chen (2019) HKLJ

oath; instead s 19 of the ODO requires them to take the oath “as soon as
possible after the commencement of” their term of office. Furthermore, it
seems to be the natural and ordinary meaning of s 21 that disqualification
occurs upon the oath taker’s “declining” or “neglecting” to take the oath
when he or she is “duly requested” to do so. This interpretation has now
been reinforced by para 2(3) of the 2016 NPCSC Interpretation, which
stipulates that “[a]n oath taker is disqualified forthwith from assuming the
public office … if he or she declines to take the oath”.
The UK law also provides a point of reference for considering how
to tackle the disputed issue of the recovery by LegCo of the salaries and
allowances already paid to the unseated LegCo members before they
were disqualified. Some academics have suggested that the LegCo and
the government should adopt a more lenient approach on this issue and
should not insist on the recovery of such salaries and allowances, as the
retroactive application of the NPCSC Interpretation that led to their
disqualification was already quite harsh.56 It is noteworthy that British
MPs who have not taken the Parliamentary oath may still have access
to facilities in Parliament and to some degree of financial support (in
relation to expenses and allowances but not salary), and Parliament has
the power to decide on the extent of facilities and allowances to be made
available to MPs who have not taken the oath.57
To conclude this section of the article, our comparative study of
relevant oath-taking laws in the United Kingdom and Hong Kong reveals
that the relevant Hong Kong law — both colonial and in the HKSAR —
has stipulated more stringent legal consequences for legislators who fail
to take the oath than those applicable to MPs in the United Kingdom.
While the judicial decisions in the oath-taking cases can be well justified
by the combined operation of Hong Kong legislation and the NPCSC
Interpretation, they testify to a classical dilemma that courts would
be faced with in a democracy (or semi-democracy in the case of Hong
Kong): when should the court exercise the judicial power to unseat a
popularly elected member of the legislature? This dilemma is all the more
difficult in the HKSAR, which operates under the unique “One Country,
Two Systems” constitutional framework. In the two oath-taking cases,
the HKSAR courts followed judicial precedents on the nature and effect
of interpretations of the BL by the NPCSC, and adopted a deferential

56
See works referred to in note 27.
57
Everett and Nash (n 32 above) pp 15–16. Nevertheless, some commentators have criticized the
limitations imposed on MPs who have not sworn in as “fatally undermin[ing] the democratic
principle”. See Everett and Nash (n 32 above) p 13.

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attitude towards the 2016 NPCSC Interpretation.58 On the other hand,

they apparently engaged in some kind of judicial activism when they
excluded certain decisions of the LegCo President from the scope of the
“non-intervention principle” and held that the past practice of LegCo in
adopting a lenient standard for the determination of the validity of oaths
of office was irrelevant to the present cases. It is thus understandable
that questions of legitimacy have been raised with regard to the courts’
disqualification of democratically elected LegCo members by reference to
the NPCSC Interpretation.59

5. Issues Arising from the 2016 NPCSC Interpretation

According to Art 158(1) of the BL, the NPCSC has the power to interpret
the provisions of the BL. Under Art 158(2) and 158(3), HKSAR courts
are authorised to interpret the BL on their own in adjudicating cases,
subject to the duty of the CFA to seek an interpretation from the NPCSC
when it needs to interpret any BL provision that concerns “affairs which
are the responsibility of” the Chinese Government or “the relationship
between the Central Authorities and the Region”. The nature and
effect of NPCSC interpretations of the BL have been authoritatively
pronounced upon by the CFA in Lau Kong Yung and Chong Fung Yuen in
1999 and 2001, respectively.60
The 2016 NPCSC Interpretation is the fifth interpretation of the
BL promulgated by the NPCSC since the BL came into effect in 1997.
This interpretation was particularly controversial as it was issued in
middle of the judicial proceedings before the CFI in Leung and Yau and
was perceived to pre-empt the outcome of the case. The interpretation
has provoked fierce debates in Hong Kong. Its critics regarded it as
gross interference by the central authorities with judicial independence
or autonomy in Hong Kong and an attack on the “One Country, Two
Systems” principle.61 The most significant legal issues generated by the

58
See Pui Yin Lo, “Two Kinds of Unconstitutional Constitutional Interpretations in China’s Hong
Kong”, Blog of the International Journal of Constitutional Law (23 December 2016), available
at http://www.iconnectblog.com/2016/12/two-kinds-of-unconstitutional-constitutional-
interpretations/ (visited 7 November 2018).
59
For example, Cora Chan, “The Legal Limits on Beijing’s Powers to Interpret Hong Kong’s Basic
Law”, HKU Legal Scholarship Blog (3 November 2016), available at http://researchblog.law.
hku.hk/2016/11/cora-chan-on-legal-limits-of-beijings.html (visited 7 November 2018).
60
See works referred to in note 19.
61
For example, “The Hong Kong Bar Association’s Statement Concerning the Interpretation
Made by National People’s Congress Standing Committee of Article 104 of the Basic Law”
(7 November 2016), available at http://www.hkba.org/sites/default/files/20161107%20-%20
Statement%20re%20NPCSC%20interpretration%20BL104%20%28Eng%20Version-
web%29.pdf (visited 7 November 2018); Jonathan Lam, “Rethinking the NPCSC’s Power to
Interpret the Basic Law” (2017) 47 HKLJ 825 at 826.

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2016 NPCSC Interpretation as applied in the two oath-taking cases

concern (1) the validity and binding force of the Interpretation as an
“interpretation” under Art 158 of the BL and (2) the retroactive effect of
the Interpretation. These issues will be separately considered below.

(a) Validity and Binding Force of the 2016 NPCSC Interpretation

Critics of the Interpretation (including the legislators in both cases)
contended that the Interpretation is invalid and has no binding
force on the Hong Kong courts to the extent that it has substantially
supplemented and amended Art 104 of the BL.62 Under Art 67 of the
PRC Constitution and Art 159 of the BL, only the NPC has the power to
amend the BL; the NPCSC only has power to “interpret” the BL. It was
thus argued that the NPCSC does not have the power to “supplement”
and therefore amend the BL. As discussed above, the courts in the two
oath-taking cases rejected this line of argument and affirmed the validity
and binding force of the 2016 NPCSC Interpretation.
In both Leung and Yau and Leung Kwok Hung, the CA applied the
CFA’s opinion in Chong Fung Yuen that under the PRC Constitution
and the BL, an NPCSC interpretation can either clarify or supplement
the law. It is noteworthy that in Mainland China, there has been no
consensus on whether legislative interpretations (ie, interpretations
promulgated by the NPCSC) can supplement the existing law.63 The
opinion of the critics of the 2016 Interpretation was partly based on the
distinction between supplementing/amending the law and interpreting
the law that is implicit in Art 67(3) and 67(4) of the PRC Constitution
of 1982. Art 67(3) provides that the NPCSC may “partially supplement
and amend” a law made by the NPC (provided that the “basic principles”
of that law is not contravened) when the NPC is not in session; Art 67(4)
provides that the NPCSC may “interpret” the law.64

62
See, eg, Margaret Ng Ngoi-yee, “人大常委七違反 釋法越權”[The NPCSC Interpretation
Violates the Law in Seven Respects], Standnews (9 December 2016), available at https://www.
thestandnews.com/politics/人大常委七違反-釋法越權/ (visited 7 November 2018).
63
See Hongshi Wen, “Interpretation of Law by the Standing Committee of the National People’s
Congress”, in Johannes Chan et al. (eds), Hong Kong’s Constitutional Debate: Conflict over
Interpretation (Hong Kong: Hong Kong University Press, 2000) pp 183, 188–192.
64
Article 67(3) and 67(4) of PRC Constitution provide that:
“The Standing Committee of the National People’s Congress exercise the following function
and powers: …
(3) to partially supplement and amend, when the National People’s Congress is not in session,
laws enacted by the National People’s Congress provided that the basic principles of those laws
are not contravened;
(4) to interpret laws; …”

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However, as Fu points out, the distinction between supplement/

amendment and interpretation is only a formal distinction that does
not seem to be significant in practice.65 Although the PRC Constitution
does not explicitly stipulate that the NPCSC may supplement the law
by issuing legislative interpretations, some of the NPCSC’s legislative
interpretations have substantially supplemented the legal provisions being
interpreted.66 Thus, this seems to have become “a matter of legislative
practice”. 67 If it is not constitutionally and legally permissible for the
NPCSC to supplement a law by interpreting it, many interpretations
which it has made (not only with regard to Hong Kong’s BL but also with
regard to other Chinese laws) will have to be deemed invalid. Furthermore,
Art 45(2) of the Law on Legislation68 of the PRC arguably implies that a
legislative interpretation may supplement a legal provision.69 According
to Art 45 (2), the NPCSC may interpret the law in any of the two
following situations:
(1) the specific meaning of any provision of a law requires further
clarification (hereafter called the “clarification requirement”); or
(2) new circumstances have arisen after the enactment of a law, and
there is a need for clarification of the basis for the application of
the law (hereafter called the “new situation requirement”).
As Tai argues, Art 45 of the Law on Legislation indicates that a legislative
interpretation may supplement the law in the second situation.70 In our
opinion, the better view is that a legislative interpretation that supplements
an existing legal provision — for the purpose of dealing with “new
circumstances” not directly provided for in that provision or otherwise —
is still valid as a legislative interpretation (but does not necessarily have
retrospective effect as discussed below), unless the interpretation (ie, the
part of the content of the interpretation that “supplements” the original

65
Fu Hualing, “Guide to Legislative Interpretation in China”, HKU Legal Scholarship Blog
(19 July 2017), available at http://researchblog.law.hku.hk/2017/07/guide-to-legislative-
interpretation-in.html (visited 7 November 2018). See also, Wen (n 63 above) p 197.
66
See Fu (n 65 above); Yang Xiaonan, “Legislative Interpretations by the Standing Committee of
the National People’s Congress in China” (2008) 38 HKLJ 255 at 268–284.
67
Fu (n 65 above).
68
The Law of Legislation was first enacted in 2000 and then amended in 2015. Article 45 of the
2015 version of this Law was originally Art 42 of the 2000 version of this Law and is identical
to the original version.
69
However, Lin disagrees with this view and argues that, unlike the position under the NPCSC’s
Resolution on Strengthening the Interpretation of Laws (adopted in 1981), the Law on
Legislation has removed the power of the NPCSC to make a legislative interpretation that
supplements the existing law. See Feng Lin, “The Duty of Hong Kong Courts to Follow the
NPCSC’s Interpretation of the Basic Law: Are There Any Limits?” (2018) 48 HKLJ 167.
70
Benny Tai, “兩種釋法及追溯力”[Two Legal Interpretations and their Retroactivity],
Apple Daily (8 August 2017), available at https://hk.news.appledaily.com/local/daily/
article/20170808/20114796 (visited 7 November 2018).

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text being interpreted) plainly contradicts the law being interpreted.71 In the
latter situation, the better view is that the purported “interpretation” is
not an interpretation for the purposes of Art 67(4) of the Constitution,
Art 45 of the Law on Legislation and Art 158 of the BL, and should be
regarded as a de facto amendment of the law. However, if this issue arises
before the CFA in a case where the government argues that the impugned
“interpretation” is indeed an interpretation within the meaning of Art
158 of the BL, the CFA will have to make a reference to the NPCSC
in accordance with Art 158(3), so that the latter can interpret Art
158 so as to determine whether the purported “interpretation” is truly
an interpretation under Art 158 and reconcile any potential conflict
between the interpretation and the law being interpreted.
In Leung Kwok Hung, the CA held that as far as para 2 of the 2016
NPCSC Interpretation is concerned, it does not have the effect of
supplementing or amending Art 104 of the BL.72 In none of the oath-
taking cases has the court questioned the validity of the Interpretation;
they have in effect denied themselves the jurisdiction to determine the
conditions under which a purported interpretation promulgated by the
NPCSC is truly an interpretation that is valid and binding on the courts.73
However, outside the courts, lawyers, commentators and scholars have
been divided over the issue. Critics contended that the 2016 NPCSC
Interpretation not only revised and supplemented the BL, but also
revised, supplemented or interpreted other relevant legal provisions in
Hong Kong (such as the ODO). They argued that the interpretation was
ultra vires, as the NPCSC is only vested with the power to interpret the
BL and has no power to supplement and amend the BL or to interpret or
supplement the domestic law of Hong Kong.74

71
Ip suggests that the HKSAR court may “disapply” (but not “invalidate”) a proposition in an
NPCSC interpretation if the proposition is “manifestly in contravention to the Basic Law”;
“Disapplication of such a proposition, non-binding because of incompatibility with the Basic
Law, is obligatory, because to apply it is ultra vires, in view of the fact that Hong Kong judges
must ‘swear to uphold the Basic Law’”: Eric Ip, “Interpreting Interpretations: A Methodology
for the Judicial Enforcement of Legislative Interpretations of the Hong Kong Basic Law” [2017]
Public Law 552 at 558. Ip’s idea of “disapplication” of an NPCSC provision is similar to Yap’s
idea that “the Hong Kong judiciary can disable themselves from giving effect to” NPC acts
“that are inconsistent with the Basic Law”: Po Jen Yap, “Interpreting the Basic Law and the
Adjudication of Politically Sensitive Questions” (2007) 6 Chinese Journal of International Law
543 (cited in footnote 70 of Ip’s article). Yap (at p 550 of his article) points out that “since the
judiciary is a creature of the Basic Law and so far as pursuant to Art 104, Judges have sworn to
uphold the BL, the judiciary is disempowered from applying legal principles that violate the
source of its powers.”
72
Leung Kwok Hung (n 5 above), [35]–[50].
73
For example, in Leung Kwok Hung, the CA, relying on the CFA’s “clarification” in Ng Ka Ling v
Director of Immigration (No 2) (1999) 2 HKCFAR 141, held that the court has no jurisdiction to
review any interpretation of the BL promulgated by the NPCSC: [2019] HKCA 173, [23]–[24].
74
See Ng (n 62 above).

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In the authors’ opinion, the 2016 NPCSC Interpretation is valid and

binding on the Hong Kong courts as an interpretation made pursuant
to Art 158(1) of the BL, and does not constitute an amendment of the
BL for the purpose of Art 159 of the BL. The interpretation may have
the effect of supplementing the BL to some extent, but as discussed
above, this is within the permissible scope of a legislative interpretation.
The interpretation should not be regarded as an “amendment” of the
BL, because there is nothing in it that is plainly inconsistent with any
provision of the BL. It is submitted that the test for determining whether
an NPCSC interpretation merely clarifies or supplements the BL or
constitutes a de facto amendment disguised as an interpretation is whether
there is anything in the interpretation that is manifestly inconsistent with the
Basic Law. The following considerations are relevant to our conclusion
that the 2016 Interpretation is an interpretation properly so called and
not an amendment of the BL.
First, the 2016 NPCSC clarifies and elaborates the original meaning
of the requirement in Art 104 of the BL that the relevant office holders
“must, in accordance with law, swear to uphold the BL … and swear
allegiance to” the HKSAR (eg, by providing that “the oath-takers should
take the oath sincerely and solemnly”75). It also provides for how to deal
with (in the words of Art 45 of the Law on Legislation) certain “new
circumstances [that] have arisen after the enactment of ” the BL but are
not adequately provided for in the BL, namely, LegCo members-elect
failing to take the oath of office.76 As Yang points out, even in common
law jurisdictions, the courts have also “applied various interpretative
methodologies to avoid a rigid interpretation and to pursue justice even
though the interpretation sometimes may go beyond the scope of the
literal meaning”.77 The 2016 NPCSC Interpretation is consistent with
the original meaning of Art 104 as well as the purpose behind it; it does
not contradict any provision of the BL. Thus, the better view is that it
falls within the scope of “interpretation” under Art 158 of the BL and Art
45 of the Law on Legislation, and is not an amendment of the BL that
would be governed by Art 159 of the BL.
Second, a comparative analysis of the Interpretation and s 21 of
the ODO indicates that the Interpretation in effect incorporates the
“disqualification” rule in s 21 in order to clarify the legal consequence of

75
See para 2(3) of the NPCSC Interpretation.
76
Article 79 of the BL provides for seven types of circumstances in which the President of LegCo
may declare that a LegCo member is disqualified. The specified circumstances do not include
failure to take the oath of office. Thus, the Interpretation has the effect of filling in the gap in
the BL as regards disqualification as a consequence of failure to take the oath of office.
77
Yang (n 66 above) p 271.

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failure to take the oath of office in accordance with Art 104 of the BL.
The Interpretation is compatible with the existing law in Hong Kong
and connects Art 104 of the BL with the relevant provisions on oath
taking in the existing law in Hong Kong. Furthermore, as mentioned
below,78 Art 1 of the Interpretation dovetails with and reinforces the
existing requirement in s 40(1)(b) of the Legislative Council Ordinance
(Cap 542) regarding nomination of candidates. Hence, the Interpretation
was not designed to amend or change Hong Kong’s existing law.
Nevertheless, it is worth noting that the official “Explanations” on
the bill for the 2016 NPCSC Interpretation presented to the NPCSC
(Explanations)79 did not explicitly refer to s 21 of the ODO; only s 16
of the Chief Executive Election Ordinance and s 40 of the Legislative
Council Ordinance were cited.80 A reference to s 21 of the ODO in the
Explanations would have rendered it more persuasive. Actually, the ODO
was already in force in Hong Kong at the time of the drafting of the BL;
it was possible that the draftsmen of the BL had taken s 21 of the ODO
into account when Art 104 of the BL was drafted. The Explanations
mentioned that in the course of the drafting of the BL, the requirement
that the main body of Hong Kong people administering Hong Kong
should be patriots was “combined with the prevailing regime on oath
taking upon assumption of office in Hong Kong to form the provisions
of article 104 of the Basic Law”.81 Here, “the prevailing regime on oath
taking upon assumption of office in Hong Kong” must have included the
ODO, which was in force in Hong Kong at that time.

(b) The Retrospective Effect of the 2016 NPCSC Interpretation

(i) The courts’ rulings on the issue of retroactivity
One of the issues raised by the oath-taking cases was whether the 2016
NPCSC Interpretation has retrospective effect in the sense that it is
applicable to acts or conduct that took place before the Interpretation
was promulgated.82 Some commentators, including the LegCo members

78
See Section 5 below.
79
關於《全國人民代表大會常務委員關於〈中華人民共和國香港特別行政區基本法〉第一
百零四條的解釋(草案)》的說明 [Explanations on the Draft Interpretation by the NPCSC of
Article 104 of the Basic Law of the Hong Kong Special Administrative Region], 中華人民共
和國全國人民代表大會常務委員會公報 [Gazette of the Standing Committee of the National
People’s Congress of the PRC], 2016, issue no 6, pp 1058–1061.
80
Both sections require the candidates in the elections concerned to make a declaration that the
candidate will uphold the BL and pledge allegiance to the HKSAR. They are thus relevant to
para 1 of the NPCSC Interpretation.
81
See text and works referred to in note 79.
82
The Leung and Yau (n 24 above), [17]; Leung Kwok Hung (n 11 above), [31].

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in the two cases, contended that an NPCSC interpretation should not

be applied retrospectively unless it explicitly stipulates so,83 and the 2016
NPCSC Interpretation in particular should not have retrospective effect
as it supplemented the BL rather than simply interpreting the wording of
Art 104. However, the CA, following the principles established by the
CFA in Lau Kong Yung on the 1999 Interpretation,84 held that the effect
of the 2016 NPCSC Interpretation would date from 1 July 1997 when the
BL came into effect.85 The court also held that an NPCSC interpretation
has the same retrospective effect irrespective of whether it merely clarifies
or actually supplements the relevant provisions of the BL.86
PRC laws do not explicitly stipulate whether legislative interpretations
by the NPCSC have retrospective effect. Article 50 of the Law on
Legislation simply states that NPCSC legislative interpretations “have
the same effect as laws”, but the Law does not clearly provide for the
retrospective effect of such interpretations. The ambiguity of the law
on this point has given rise to different views on the retroactivity of
legislative interpretations. One view regards a legislative interpretation
as a piece of legislation; therefore the interpretation should take effect
as from the date of its promulgation and have no retrospective effect.87
Another view is that a legislative interpretation is a legislative act closely
associated with the relevant law being interpreted; its purpose is to clarify
the meaning of the relevant provisions as originally enacted. Therefore,

83
Yap and Chan (n 55 above) p 14.
84
Lau Kong Yung v Director of Immigration (n 19 above).
85
Leung and Yau (n 24 above), [53]; Leung Kwok Hung (n 11 above), [52].
86
Leung and Yau, Ibid., [55]. The CFA’s judgment on refusal to grant leave to appeal to the CFA
in Leung and Yau affirmed the CA’s rulings on these points. See also Leung Kwok Hung, Ibid.,
[53]–[55]. The CA’s view in Leung Kwok Hung is that the 2016 Interpretation (or at least para 2
thereof) “does not supplement BL104 or the ODO” (Ibid., [50]), while the 1999 Interpretation
(on the “right of abode” cases of Ng Ka Ling and Chan Kam Nga) does supplement the BL,
because clause 1 thereof is “arguably a supplementation of BL22(4) and BL24(2)(3)” and
clause 2 thereof is “definitely a supplementation of BL24(2)(3)” (Ibid., [54]). With respect,
we doubt whether the 1999 Interpretation “supplements” the BL to any extent greater than
that to which the 2016 Interpretation “supplements” the BL. In our opinion, the better view
is that the 1999 Interpretation only clarifies or resolves the linguistic ambiguity inherent in
BL22(4) and BL24(2)(3) and has not “supplemented” any of these provisions. In Ng Ka Ling
and Chan Kam Nga, the text of BL22(4) and the text of BL24(2)(3) were so ambiguous that
each of these provisions could be interpreted in at least two ways. The interpretations of these
provisions adopted by the CA in these two cases were rejected by the CFA on appeal; the
CFA adopted the other of the two possible interpretations with regard to each of BL22(4) and
BL24(2)(3). Yet, the interpretations of these two provisions ultimately adopted by the NPCSC
in its 1999 Interpretation coincide with those of the CA. It can hardly be said that the NPCSC
“supplemented” these two provisions, just as it can hardly be said that the CA “supplemented”
these provisions when it decided Ng Ka Ling and Chan Kam Nga.
87
For example, Wang Shizhou, General Principles of Modern Criminal Law [現代刑法學（總論）]
(Beijing: Peking U Press, 2011) p 46. In Professor Wang’s opinion, NPCSC interpretations of
the criminal law may supplement the law by introducing new content, but should not have
retrospective effect. He considers that the principle against “crime by analogy” is not applicable
to NPCSC interpretations.

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the effect of the interpretation should date back to the time of enactment
of the relevant law. In other words, the interpretation, unlike an ordinary
law enacted by the NPCSC or NPC, has retrospective effect.88
The ruling of the CFA in Lau Kong Yung on the retrospective effect of
NPCSC interpretations, which borrowed from the approach adopted by
common law courts to statutory interpretation and to determinations on
the common law, is consistent with the second view mentioned above.
This view also finds support in a commentary on the Law on Legislation
published under the auspices of the Legislative Affairs Commission of
the NPCSC.89 In this commentary, Art 50 of the Law of Legislation Law
is understood as follows. An NPCSC legislative interpretation is not
independent of the relevant law that is being interpreted; the content
of the interpretation must be taken as reflecting the legislative intent of
the relevant law even in circumstances where the relevant law is being
interpreted or supplemented to meet the “new situation requirement”
(as defined above). A legislative interpretation has no independent
legal effect; its effect is dependent on the relevant law that is being
interpreted. Thus, a legislative interpretation should be regarded as
having taken effect as from the date when the relevant law was passed.
However, under some specific circumstances, legislative interpretations
should not be applied retrospectively. For example, under Art 158 of the
BL, an NPCSC interpretation of the BL would not affect “judgments
previously rendered”. Li Fei, then Chairman of the Hong Kong Basic Law
Committee of the NPCSC, expressed a similar view when he explained
the 2016 NPCSC Interpretation at a press conference.90
Critics of the courts’ ruling on the retrospective effect of NPCSC
interpretations question the courts’ assumption that “NPCSC
Interpretations operate in the same way as common law decisions”.91 It is
suggested instead that the court may consider treating the interpretation
as a legislative act and as non-retrospective. This idea is worth pondering,
and the issue of the retroactivity of NPCSC interpretations will be further
considered below.

88
For example, Zhang Mingkai, Criminal Law [刑法學] (Beijing: Law Press, 3rd ed., 2007)
pp 71–73; Huang Taiyun, “刑法修正案和刑法立法解釋溯及力問題探析” [An Analysis of the
Retroactivity of Amendments and Legislative Interpretations of the Criminal Law], 人民檢察
[People’s Procuratorial Work], 2006, Vol 19, pp 37–39.
89
Wu Zeng (ed), An Analysis of the PRC Legislation Law [中華人民共和國立法法解讀] (中國法
制出版社Beijing: China Legal Publishing House, 2015) pp 189–190.
90
Transcript of press conference organised by the NPCSC General Office, 7 November 2016,
available at http://www.npc.gov.cn/npc/zhibo/zzzb39/node_381.htm (visited 7 November 2018).
91
Yap and Chan (n 55 above) p 11. On the other hand, the CA in Leung and Yau did mention that
the 2016 NPCSC Interpretation should not be simply read from the perspective of a common
law lawyer: CACV 224/2016, [56]–[59].

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(ii) Mainland scholars’ views on whether legislative interpretations have

retrospective effect
Although the Hong Kong courts followed what was apparently the official
Chinese view that the 2016 NPCSC Interpretation has retrospective
effect, there is no consensus among Mainland Chinese scholars on the
retroactivity of legislative interpretations promulgated by the NPCSC.
The issue is particularly controversial as regards NPCSC interpretations
in the domain of criminal law, given the general principle that legislation
creating criminal offences should not have retrospective effect.92 The
NPCSC has (in the period 2002–2014) issued thirteen interpretations of
the Criminal Code of the PRC, constituting the majority of all legislative
interpretations issued by it.93 This section of the article will discuss three
schools of thought among Mainland Chinese scholars of criminal law on
the issue of retroactivity of legislative interpretations.94
A. The view that legislative interpretations do not have retrospective effect
Some criminal law scholars, including Wang Shizhou, consider legislative
interpretations in the domain of criminal law to be non-retrospective,
drawing on the principle of “nullum crimen sine lege”. They argue that a
legislative interpretation is a piece of legislation. Therefore, like other
legislation, the interpretation should only be effective as from the date of
its promulgation and should have no retrospective effect.95
B. The view that legislative interpretations have retrospective effect
Some other equally prominent criminal law scholars, such as Zhang
Mingkai and Huang Taiyun,96 argue that a legislative interpretation is an
legislative act closely associated with the relevant law that is interpreted,
and its effect is dependent on and similar to the law that is interpreted.97
They agree with the aforementioned opinion in the official commentary
on the Law on Legislation that Art 50 of the Law on Legislation implies
that the effect of a legislative interpretation should date back to the time
when the relevant law being interpreted went into effect. A reply issued

92
See, eg, Art 11(2) of the Universal Declaration of Human Rights and Art 12 of the International
Covenant on Civil and Political Rights.
93
See Guo Zhilong, “刑事立法解釋權行使條件的反思與明確” [Reflections and Clarification of
Preconditions for Legislative Power of Interpreting the Criminal Law] (2014) 29(4)上海政法
學院學報 [Journal of Shanghai University of Political Science & Law] 106 at 106–107.
94
For discussion in Chinese on these schools of thought, see Peng Yuwei, “論刑法立法解釋的
溯及力” [On the Retroactivity of Criminal Law Legislative Interpretations] (2010) 24 (4) 石
河子大學學報(哲學社會科學版) [Journal of Shihezi University (Philosophy and Social Sciences)]
42–46.
95
Wang (n 87 above).
96
Professor Huang Taiyun is a former Director of the Criminal Law Division of the Legislative
Affairs Commission of the NPCSC.
97
Zhang (n 88 above); Huang (n 88 above).

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by the Supreme People’s Procuratorate of the PRC (SPP) in 2000 also

adopted a similar view.98
Zhang Mingkai seeks to explain why a legislative interpretation of the
Criminal Code should have retrospective effect even if the interpretation
apparently imposes a more severe punishment on the accused. According
to Zhang, if a legislative interpretation interprets the law differently from
the previous understanding of the law when it was applied, this indicates
that the previous understanding and application of the law had been
erroneous. Therefore, the disparity between the current interpretation
and previous practice should not be an obstacle to the retroactivity of
the interpretation. If the interpretation has no retroactive effect, this
would be equivalent to accepting as correct the wrong understanding and
application of the law in the past, and wrongly applying the law to cases
currently being tried by the court (where the facts of the cases occurred
before the interpretation was promulgated).99 Actually, the CFI’s decision
in the case of the four LegCo members followed the same logic as Zhang’s;
the court rejected the argument of the four LegCo members that they had
no intention to defy the law and acted in the belief that their conduct
amounted to valid oath taking according to the standards used by oath
administrators on previous occasions of oath taking by LegCo members.100
C. The view that whether a legislative interpretation has retrospective effect
depends on the circumstances
Some scholars suggest that whether a legislative interpretation of the
Criminal Code has retrospective effect should depend on the scope and
content of the interpretation.101 It follows from the nature of legislative
interpretations as “interpretation” rather than “new law” that in principle
they should have retrospective effect, but if an interpretation expands the
original meaning and scope of relevant provisions and disadvantages
the accused, the interpretation should be non-retrospective. According to
this view, in some circumstances a legislative interpretation may clarify the
meaning of the provision being interpreted, while in other circumstances,
it may supplement the law by creating new rules. In the former situation,
the interpretation should have retrospective effect dating back to the

98
最高人民檢察院《關於全國人大常委會關於刑法第93條第2款的解釋的時間效力的
批復》[Reply of the Supreme People’s Procuratorate on the Retroactivity of NPCSC’s
Interpretation of Article 93(2) of the Criminal Law] (29 June 2000). See Zhao Bingzhi and Yang
Dan, “試論刑法立法解釋的效力問題” [An Analysis of the Effect of Criminal Law Legislative
Interpretations], 中國刑法學年會文集 [Proceedings of the Annual Conference of the Criminal
Law Research Society of the China Law Society] (2003) p 368 at 373.
99
Zhang (n 88 above) p 73.
100
See Nathan Law Kwun Chung (n 4 above), [110]–[113].
101
See Peng (n 94 above), p 3.

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time of promulgation of the law being interpreted, because the content

of the interpretation can be regarded as implicit in the law as originally
enacted. By contrast, in the latter situation, the interpretation has gone
beyond or expanded the statutory text, and should not therefore have
retrospective effect.102 An example of such a situation was the legislative
interpretation issued in 2002 that expanded the scope of the subjects who
may be prosecuted for “offences of dereliction of duty” under Ch IX of the
Criminal Code.103
To address the concerns over the retroactivity of a legislative
interpretation that substantially supplements the law, Huang suggests that
the solution should be to improve the methodology of such interpretations
and avoid making legislative interpretations that go beyond the original
meaning of the law. In Huang’s view, this is preferable than allowing
the latter kind of interpretations to become a common practice and
then limit the retrospective effect of the interpretations. Huang stresses
that legislative interpretations of the Criminal Code should be no more
than interpretations of the meaning of the text of the Code.104 Huang’s
proposal for the future is laudable, but it does not address the question of
whether a particular interpretation that has already been promulgated by
the NPCSC has retrospective effect.
(iii) The debate on the retroactivity of NPCSC Interpretations of BL
Scholars in Hong Kong105 who oppose the retrospective application of the
2016 NPCSC Interpretation to oaths taken before the promulgation of the
Interpretation adopt one of two positions similar to the relevant schools
of thought among mainland scholars mentioned above: (1) NPCSC
interpretations should not have retrospective effect; or (2) whether an
NPCSC interpretation or a part thereof has retrospective effect depends
on the circumstances.
Some who adopt the first position cite the 2007 Provisions of the
Supreme People’s Court on Judicial Interpretation Work (the 2007
SPC Provisions) in support of the view that NPCSC interpretations
do not have retrospective effect. Article 25 of the 2007 SPC Provisions

102
Ibid.
103
全國人大常委會關於《中華人民共和國刑法》第九章瀆職罪主體適用問題的解釋
[Interpretation of the NPCSC on the Application to Subjects of the Crime of Dereliction of
Duty as Prescribed in Chapter IX of the Criminal Law]. See also Yang (n 66 above), pp 280–282.
104
Huang (n 88 above), p 39.
105
Most scholars who have written on the topic have expressed doubt on the retroactive effect of
the 2016 NPCSC Interpretation or at least some provisions thereof. See, eg, Yap and Chan (n
55 above) p 11; Devin Lin, Valentin Günther and Mathias Honer, “Interpreting Article 104:
The Way, the How, the Timing” (2017) 47 HKLJ 475 at 498; Lam (n 61 above) p 840; Lo (n 2
above) p 422.

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stipulates that “judicial interpretations shall be implemented (shixing

施行) as from the date of publication, unless otherwise provided in the
judicial interpretation”. On the basis of this article, it is argued that
judicial interpretations do not have retrospective effect, and therefore
legislative interpretations should not have retrospective effect. However,
the validity of this argument may be doubted.
First, it is arguable that Art 25 has not settled the question of whether
a judicial interpretation may have retrospective effect. The article only
states that a judicial interpretation shall be “implemented” as from the
date of its publication. This may mean no more than the requirement that
as from that date, all courts trying cases should apply the interpretation
to the cases tried by them. However, the question is still left open as to
whether a court trying a case whose facts arose before the promulgation of
the interpretation should or should not apply the interpretation in trying
the case. Chinese legal scholars have been unable to reach consensus on
the retroactivity of judicial and legislative interpretations. In the criminal
law field, some academics consider the former to be retrospective and the
latter to be non-retrospective.106
Second, under the Law on Legislation and as a matter of general
principle, judicial interpretations fundamentally differ from legislative
interpretations. Judicial interpretations are less authoritative than
legislative interpretations. Some judicial interpretations consist of
systematic and comprehensive compilations of rules supplementing and
elaborating the provisions in laws enacted by the NPC or NPCSC. Some
Chinese scholars even doubt whether judicial interpretations have a
sufficient constitutional and legal basis.107 Hence, any argument as to the
non-retroactivity of legislative interpretations cannot be safely based on
an argument based on analogy with judicial interpretations.

106
For example, Wang (n 87 above) pp 46–47. In support of his view that judicial interpretations
should have retrospective effect, Wang cites the Provisions regarding the Time of Application
of Judicial Interpretations on Criminal Law (關於適用刑事司法解釋時間效力問題的規定)
promulgated jointly by the SPC and SPP in 2001.
107
Zhou Wangsheng, “中國現行法律解釋制度研究” [A Study of China’s Current System of
Legal Interpretation](2003) 25(2) 現代法學 [Modern Law Science] 3 at 5. The SPC’s power to
interpret laws in the course of adjudication was provided for in the Organic Law of the People’s
Courts as from the time of enactment of this Law in 1979 (Art 33). It should be noted that when
the Law on Legislation was amended in 2015, a new Art 104 was introduced which recognises
the power of the SPC and the Supreme People’s Procuratorate to make interpretations on the
concrete application of the law in adjudicative and procuratorial work, respectively, provided
that they relate mainly to specific legal provisions and are consistent with the legislative purpose,
principles and original intent. However, even after this amendment, there still exists some
scholarly criticism as regards the uncertainty of the legal force of judicial interpretations and
whether in practice some judicial interpretations are beyond the scope of the SPC’s power under
the Law on Legislation. See, eg, Wang Cheng, “最高法院司法解釋效力研究” [A Study of the
Effect of the Judicial Interpretations of the Supreme People’s Court] (2016) 28(1) 中外法學
[Peking University Law Journal] 263.

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 Vol 49 Part 1 Oath-taking and NPCSC Interpretation of 2016 409

Third, the 2007 SPC Provisions themselves are not legally or practically
binding on other parallel state institutions (such as the Supreme People’s
Procuratorate (SPP)), not to mention the highest organs of state power,
ie, the NPC and the NPCSC. In practice, other state institutions, such
as the SPP and the Ministry of the Public Security, may not only ignore
the provisions and interpretations issued by the SPC but may also issue
their own interpretations and guidelines which may be inconsistent with
relevant judicial interpretations.108 Given the limited authority of judicial
interpretations, it is again difficult to argue that the effect (retroactive or
non-retroactive) of legislative interpretations should be understood by
reference to the effect of judicial interpretations.
We now turn to the view that whether an NPCSC interpretation of the
BL has retrospective effect depends on the circumstances. The argument
is partly based on Art 45 of the Law on Legislation. For instance, Tai
contends that an NPCSC interpretation should be only be retrospective
if it is issued under the “clarification requirement” (as defined above),
but should be non-retrospective if issued under the “new situation
requirement”. This is because citizens’ expectations of how the law would
apply to them should be respected, and the retroactive application of new
legal norms is unjust.109
We agree that the indiscriminate retroactive application of every part
of an NPCSC interpretation would not be fair; neither is it mandated
by the PRC law on legislative interpretations. As in the case of judicial
decisions by common law courts on statutory interpretation, NPCSC
interpretations of the BL that interpret the meaning of the legislative
text, and clarify it by resolving its ambiguity, can legitimately have
retrospective effect. The interpretation on issues of the “right of abode”
in Hong Kong promulgated by the NPCSC in 1999 is an example of such
interpretations.110 On the other hand, where an NPCSC interpretation
supplements the legislative text by introducing new legal norms that cannot
reasonably be deduced or inferred from or regarded as implied by the legislative
text, the new legal norms should not have retrospective effect in the sense
of governing acts and events that occurred before the interpretation was
promulgated (unless such retrospective effect is expressly provided for in
the interpretation itself). Such retroactive application of new legal norms
would be inconsistent with the Rule of Law requirement that the law
should be certain and predictable in its operation so that citizens can
reasonably foresee the legal consequences of their conduct.

108
See Yang (n 66 above) pp 274–279.
109
Tai (n 70 above).
110
See works referred to in note 86.

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 410 Han Zhu and Albert HY Chen (2019) HKLJ

The question remains as to who has the power to determine

whether an NPCSC interpretation or a part thereof has or does not
have retrospective effect. Some scholars in Hong Kong expect the
courts to take a more active role in restraining the exercise of the
NPCSC’s power of interpretation.111 In our opinion, although Hong
Kong courts may not question the validity and binding force of an
NPCSC interpretation on the ground that it supplements the BL,112
the courts may legitimately assert the power to determine whether
the interpretation or a relevant part thereof has or does not have
retrospective effect on the basis of the principles suggested above,
unless the retrospective effect of the interpretation is expressly
provided for in the text of the interpretation itself.
To date, the HKSAR courts have apparently adopted a highly
deferential attitude towards NPCSC interpretations.113 Such deference
is largely justified, given that under the constitutional order of “One
Country, Two Systems”, the NPC and its standing committee are the
highest organs of state power, and the Hong Kong courts’ power to
interpret the BL is a power delegated to it by the NPCSC.114 According to
Art 62 of the PRC Constitution, only the NPC is vested with the power
to supervise the implementation of the Constitution, and to revise or
revoke “improper decisions” made by the NPCSC. It is therefore difficult,
both normatively and practically, for Hong Kong courts as regional
courts115 in a Special Administrative Region of the PRC to shoulder the
responsibility of exerting legal control over acts of the supreme organs
of power at the national level. Some Hong Kong scholars are concerned
about the lack of legal and political control over the NPC and its standing
committee. At the same time, they admit that “[t]his is not such a big
issue if political sources of control are effective”.116 Hence, the extent to
which the HKSAR judiciary may seek to limit the application of NPCSC
interpretations of the BL is, in the final analysis, a political as well as a
legal question.

111
For example, Chan (n 59 above); Lam (n 61 above).
112
See text and works referred to in notes 70 and 71.
113
See Lo (n 58 above).
114
See Ng Ka Ling (No 2) (n 73 above).
115
See HKSAR v Ma Wai Kwan David [1997] HKLRD 761 (CA).
116
Chan (n 59 above). It has been pointed out that despite the doctrine of Parliamentary
supremacy in the United Kingdom (so that there is no constitutional constraint on the exercise
of Parliament’s legislative power), free elections there serve as the main source of political
control.

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 Vol 49 Part 1 Oath-taking and NPCSC Interpretation of 2016 411

6. Further Ramifications of the 2016 NPCSC Interpretation: 2018

LegCo By-elections
The 2016 NPCSC Interpretation not only provides for the manner
and validity of oath taking, but also stipulates a requirement regarding
candidates in elections to any public office whose holder has to take the
required oath of office. Article 1 of the Interpretation prescribes that “to
uphold the Basic Law” and “to bear allegiance to the HKSAR” are not
only part of the legal content of the oath required by Art 104 of the BL
(BL 104) but constitute “also the legal requirements and preconditions for
standing for election in respect of or taking up the public office specified
in” BL 104. Therefore, the Interpretation is not only relevant to the
disqualification of LegCo members who fail to take their oaths properly
but also applicable to candidates in elections to LegCo.
Article 1 of the Interpretation echoes and reinforces the requirement
in existing law regarding declarations to be signed by candidates in LegCo
elections. Under s 40(1)(b) of the Legislative Council Ordinance, a
nomination form for such a candidate must include “a declaration to the
effect that the person will uphold the BL and pledge allegiance to the Hong
Kong Special Administrative Region”. Even before the promulgation of
the Interpretation, s 40 has been used by returning officers in the 2016
LegCo election to disqualify several candidates whom, in the returning
officers’ opinion, had not genuinely and sincerely made the declaration
because, for example, they had advocated Hong Kong’s independence.
One of these candidates, Chan Ho-tin Andy, subsequently brought an
election petition to challenge the returning officer’s decision. In February
2018, the CFI117 upheld the impugned decision, and held that even
though this is not expressly spelt out in the legislation, the returning
officer has the power to determine that the candidate’s declaration was not
genuinely and sincerely made and was therefore invalid. Article 1 of the
Interpretation, inter alia, was relied on by the CFI in its reasoning in this
case and assumed to have retroactive effect. Chan Ho Tin is thus the first
case that demonstrates the combined operation of s 40 of the Legislative
Council Ordinance and Art 1 of the 2016 NPCSC Interpretation.
In the meantime, disqualifications of candidates by returning officers
on similar legal grounds occurred in the two by-elections held in March
and November 2018 to fill four seats (in the March by-election) and one
seat (in the November by-election) vacated by LegCo members who had

117
Chan Ho Tin v Lo Ying Ki Alan [2018] 2 HKLRD 7.

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 412 Han Zhu and Albert HY Chen (2019) HKLJ

been disqualified by the courts.118 In the nomination period for the by-
election in March, three “localist” candidates were disqualified because
of their pro-independence stance, but Yiu Chung-yim, one of the LegCo
members disqualified by the court in July 2017, received confirmation
of his nomination.119 In the decision to reject the nomination of Chow
Ting Agnes, one of the three disqualified candidates, the returning
officer explicitly stated that she had taken into account, inter alia, the
2016 NPCSC Interpretation.120 A few months later, in the nomination
period for the by-election in November 2018, Lau Siu-lai, who had been
disqualified as LegCo member by the court in July 2017 but attempted to
run again in the by-election, was disqualified as a candidate.121
Chow Ting was disqualified mainly on the ground that Demosistō
(香港衆志), the political group to whom she belonged, had called for
“democratic self-determination” for Hong Kong. Lau Siu-lai’s nomination
was rejected on the ground that she had advocated self-determination
for Hong Kong. In both cases, the candidates were not given the
opportunity to explain their political views before the returning officers
decided that the declarations in their nomination forms were not valid.
In May 2018, Chow Ting brought an election petition to challenge her

118
Leung Kwok Hung, one of the disqualified legislators, lodged an appeal to the CA against
the disqualification, hence no by-election has yet been organised to fill his seat pending the
outcome of his appeal. The appeal was dismissed by the CA on 15 February 2019 ([2019] HKCA
173), but Leung indicated his intention to appear further to the CFA: “‘Long Hair’ Leung
Kwok-hung to Take Case to Highest Court, After Court of Appeal Affirms 2016 Lawmaker
Disqualification”, available at https://www.hongkongfp.com/2019/02/15/breaking-hong-kong-
appeal-court-affirms-disqualification-ex-lawmaker-long-hair-leung-kwok-hung-2016-oath-
taking-saga/ (visited 17 February 2019).
119
Tony Cheung and Jeffie Lam, “Hong Kong Democracy Activist Edward Yiu Cleared to Run
in LegCo By-election”, South China Morning Post (29 January 2018), available at http://www.
scmp.com/news/hong-kong/politics/article/2131043/hong-kong-democracy-activist-edward-
yiu-cleared-run-legco (visited 7 November 2018).
120
For the Chinese version of the full text of the “Notice of Decision as to Validity of Nomination”
addressed to Chow Ting (27 January 2018), see Chen Zhixin, “Director of Electoral Affairs
Commission Explains Decision: Chow Ting Does Not Uphold Basic Law or Bear Allegiance
to HKSAR” [選舉主任解釋決定：周庭不擁護《基本法》不效忠香港], available at HK01.
com and https://www.hk01.com/港聞/153756/-周庭被DQ-選舉主任解釋決定-周庭不擁
護-基本法-不效忠香港 (visited 7 November 2018). Chow Ting’s disqualification was highly
controversial. See “Political Storm in Hong Kong as Activist Agnes Chow Banned from By-
election over Party’s Call for City’s ‘Self-determination”, South China Morning Post (27 January
2018), available at http://www.scmp.com/news/hong-kong/politics/article/2130714/hong-kong-
activist-agnes-chow-banned-legco-election (visited 7 November 2018).
121
“No Opportunity to Be Heard; Lau Siu-lai Is disqualified” [無申辯機會 劉小麗被DQ], Ming
Pao (明報), 13 October 2018; the full text of the disqualification decision is available at https://
www.hk01.com/政情/246325/劉小麗被dq-選舉主任任裁定劉小麗提名無效-附裁決重點
(visited 7 November 2018).

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 Vol 49 Part 1 Oath-taking and NPCSC Interpretation of 2016 413

disqualification,122 and Lau Siu-lai brought an election petition in January

2019.123 How the court will adjudicate the case remains to be seen.124
When Hong Kong courts, particularly the higher courts, adjudicate
these election petition cases, they will need to decide on the authoritative
interpretation of the provisions in the Legislative Council Ordinance
on the declaration in the nomination form and the role and power of
the returning officer to determine the validity of declarations made by
candidates in LegCo elections. They will also have to address the issue
of the precise effect on Hong Kong law of Art 1 of the 2016 NPCSC
Interpretation, including the combined effect of the operation of this
article and the relevant provisions in the Legislative Council Ordinance.
The rulings on these issues by the CFI in Chan Ho Tin in 2018 are unlikely
to be the last words by the HKSAR judiciary on this subject. Therefore,
the full ramifications, and the possible limits, of the 2016 NPCSC
Interpretation remain to be seen.

7. Conclusion
The LegCo oath-taking cases of 2016–2017 and the series of controversies
generated by them well illustrate the uniqueness of the Rule of Law and
the challenges for the judiciary in the HKSAR under the constitutional
framework of “One Country, Two Systems”. The HKSAR has, in
accordance with the BL, sought to maintain a common law system,
largely inherited and adapted from the colonial period, in the midst
of a dramatic democratic transition and rising democratic demands in
local politics, and the increasing exertion of influence by the central
government of a powerful sovereign state that practises communist party-
led authoritarianism rather than the liberal democracy of most common
law jurisdictions. Such legal uniqueness and the related challenges to

122
“Disqualified in Election; Chow Ting Lodges Election Petition: Render Justice to Hong Kong
People” [選舉被DQ 周庭提選舉呈請：還香港人一個公道], Ming Pao (明報) (8 May 2018).
123
“Disqualified in By-election: Lau Siu-lai Lodges Election Petition” [補選遭DQ 劉小麗提選舉
呈請], Ming Pao (明報) (26 January 2019).
124
In December 2018, Chu Hoi-dick Eddie, a LegCo member who was nominated as a candidate
in a village representative election in the New Territories, was also disqualified as a candidate
on the ground that his position on self-determination was inconsistent with the declaration
that he was required to sign under the Rural Representative Election Ordinance. See “Hong
Kong Lawmaker Eddie Chu Disqualified from Running in Village Election after Being
Questioned Twice on Independence”, available at https://www.scmp.com/news/hong-kong/
politics/article/2176031/hong-kong-lawmaker-eddie-chu-disqualified-running-rural (visited 2
December 2018). Subsequently, Chu brought an election petition before the court to challenge
his disqualification: “Lawmaker Eddie Chu Launches Legal Challenge to His Disqualification
from Rural Representative Election” South China Morning Post (1 February 2019).

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 414 Han Zhu and Albert HY Chen (2019) HKLJ

the Rule of Law in Hong Kong have been highlighted in the following
respects by the oath-taking controversies and their aftermath.
First, because the oath-taking law in colonial Hong Kong was modelled
on the Promissory Oaths Act 1868 rather than the Parliamentary Oaths
Act 1866, the consequences for Hong Kong legislators who failed
to take the required oath were more severe than those for MPs in the
United Kingdom. This oath-taking law continued in force after the 1997
handover, even though the appointed LegCo members of the colonial
era had disappeared from the scene and all legislators are now elected,
and half of them are elected by universal suffrage. The courts’ application
of the oath-taking law of Hong Kong, together with the 2016 NPCSC
Interpretation, has raised issues of political legitimacy as regards the
extent to which judicial power may be used to negate voters’ choice of
legislators in democratic elections.
Second, the intervention by the NPCSC in the course of the judicial
proceedings in Leung and Yau, and the subsequent use by the HKSAR
Government of the 2016 NPCSC Interpretation to disqualify four more
“pan-democratic” legislators, have brought the controversies since 1999
over NPCSC interpretations of the BL to a new climax. Even before
the 2016 Interpretation, the methodology of NPCSC interpretations
of the BL have been criticised even by mainland legal scholars for lack
of consistency and of clear criteria.125 The 2016 Interpretation raised
additional issues, such as whether it is a gross interference with judicial
autonomy in the HKSAR for the NPCSC to pre-empt the outcome of
judicial proceedings that have not yet been concluded at the time the
NPCSC issues a relevant interpretation, where is the line to be drawn
between an interpretation and an amendment of the BL, whether an
interpretation that supplements the text of the BL is an interpretation
properly so called, and whether it should have the same retrospective
effect as an interpretation that, as in the case of the 1999 Interpretation,
simply clarifies the meaning of the language of BL provisions so as to
resolve the ambiguity therein.
Third, the oath-taking saga and the attempt by the 2016 Interpretation
to regulate not only the proper manner of oath taking but also the belief
required of candidates in LegCo elections have raised even more complex
questions of the extent to which the law and the courts can or should
be used to exclude from being candidates persons who hold certain
political beliefs (eg, the belief that Hong Kong should not remain a part
of the PRC, or that the people of Hong Kong should enjoy the right of

125
Yang (n 66 above) pp 284–285.

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 Vol 49 Part 1 Oath-taking and NPCSC Interpretation of 2016 415

self-determination for the purpose of deciding whether Hong Kong should

remain part of the PRC). In pre-modern times, the English law on oaths
of office operated to exclude persons who held certain religious beliefs
from participation in the political system. Modern oath-taking laws can
still have an exclusionary effect, no longer on the basis of religious belief
but now on the basis of political belief.126 Given the 2016 Interpretation,
it is likely that HKSAR legislators elected in the future will simply comply
with the formal requirements of proper oath taking, so that no more
cases of disqualification of elected legislators need to be dealt with by
the courts. The legal drama is likely to shift to the government’s attempt
to bar persons who believe in and advocate Hong Kong’s independence
or self-determination from participating in LegCo elections. To what
extent will the higher courts of the HKSAR uphold this attempt as lawful
and constitutional? This will probably be the most severe test to-date of
whether the liberal common law-based legal order of Hong Kong can
and will adapt itself to accommodate of the requirement of the “One
Country” principle as interpreted by Beijing.

126
For contrasting views of the legitimacy of the oath of office in the context of Hong Kong
and China, see Chen Duanhong, 權力的聖禮：憲法宣誓的意義 [The Sacrament of Power:
An Exposition of the Normative Meanings of Constitutional Oath-taking in China] (2018)
32 (6) 中外法學 [Peking University Law Journal], available at http://www.gongfa.com/html/
gongfalunwen/20181224/13356.html (visited 25 February 2019); Scott Veitch, “Oaths of
Allegiance: To What, and To What End?” (unpublished seminar paper, 2017, Faculty of Law,
University of Hong Kong, on file with author).

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 Dr Mok Hing Yiu Memorial Lecture
St Hugh's College, Oxford
22 February 2018 (Thursday)
Speech by The Honourable Mr Justice Tang PJ1

One Country, Two Systems:

Basic Law, Common Law and the Rule of Law

1. Dame Elish, fellows and members of St Hugh’s, Mr Edwin Mok,

fellow guests, students, ladies and gentlemen. It is my happy privilege to give

the Dr Mok Hing Yiu Memorial Lecture this year.

Introduction

2. The title of my talk is long. The rule of law lies at the heart of it.

At the Commonwealth Law Conference 2017, my colleague, Mr Justice Fok,

Permanent Judge of the Court of Final Appeal, in his talk titled “Demonstrating

judicial independence in increasingly politicised times” said at para 4:

“Given Hong Kong’s unique position as a common law system operating

within the sovereign territory of a country governed under the Communist
Party of China’s ideology of socialism with Chinese characteristics, the

1
Permanent Judge of the Hong Kong Court of Final Appeal. I thank Mr Jasper Wong, Judicial Assistant in
the Court of Final Appeal (2017-18), for his help in preparing this speech.
 -2-

preservation and protection of judicial independence in Hong Kong are

matters of great importance and present interesting challenges.”

3. Judicial independence is essential to the rule of law. Judges are

given security of tenure not for their own sake but so that they are better able to

defend the rule of law. For rule of law to be meaningful, I believe

“the law must be accessible and so far as possible intelligible, clear and
predictable, taking effect (generally) in the future and publicly
administered in the courts; and that human rights are protected.”2

One complication in Hong Kong which I will highlight in this talk is the power

of the Standing Committee of the National People’s Congress (“NPCSC”),

operating under China’s very different system, to interpret the Basic Law, Hong

Kong’s constitution.

One Country, Two Systems

4. I believe, China’s policy, captured in the well-known phrase “One

Country, Two Systems”, is responsible for the success of the negotiation over

Hong Kong’s future.

5. The policy predated the Sino-British negotiations and was designed

2
Tom Bingham, The Rule of Law (Allen Lane, 2010) at p. 37 and p. 67.
 -3-

with reunification with Taiwan in mind. As a Hong Kong Special

Administrative Region publication explained, on 11 January 1982, Deng

Xiaoping said that, by and large, the same policy may be applied also to Hong

Kong and that under the policy “two different systems are allowed to coexist”.3

In December 1982, China adopted the 1982 Constitution which laid the

foundation for One Country, Two Systems. Article 31 of the constitution

provides:

“the state may establish special administrative regions when necessary.

The systems to be instituted in special administrative regions shall be
prescribed by law enacted by the National People’s Congress in the light
of the specific conditions.”

6. Many people in Hong Kong were sceptical at first. The success of

the policy requires self-restraint on the part of the Chinese Government which

could not be taken for granted. But, repeatedly, Deng Xiaoping sought to

reassure Britain and the inhabitants of Hong Kong of China’s good faith. For

example, in June 1984, after saying China’s policies with regard to Hong Kong

would remain unchanged for 50 years and that China meant it he went on to say:

“When we adopt the policy of ‘One Country, Two Systems’ to resolve the

3
The Basic Law and Hong Kong - The 15th Anniversary of Reunification with the Motherland (the
Working Group on Overseas Community under the Basic Law Promotion Steering Committee, 2012),
Ch.1.1, p. 9. “On 11 January 1982, Deng Xiaoping first proposed the idea of solving the Taiwan question
into a specific concept – ‘One Country, Two Systems’”, under which “[t]wo different systems are allowed
to co-exist … By and large, the relevant policies may be applied not just to Taiwan, but also to Hong
Kong.”
 -4-

Hong Kong question, we are not acting on impulse or playing tricks but
are proceeding from reality and taking into full account the past and
present circumstances of Hong Kong.”4

As Deng Xiaoping made clear the policy was in China’s national interest and

would be faithfully implemented.

7. “One Country” is straightforward and requires no explanation.

“Two Systems” is less straightforward though everyone knows one is the

Chinese system, and the other, the Hong Kong system. The idea is that these

two very different systems will coexist under one country. Naturally, there

would have to be constitutional changes to Hong Kong’s political system but I

am not concerned with them. I am concerned with Hong Kong’s separate legal

system and the rights and freedoms enjoyed in Hong Kong. To survive, they

would have to be insulated from the Chinese system.

8. Much of the Sino-British negotiations were spent to produce a full,

clear and credible statement of Hong Kong’s system after 1997 and to protect it

from the Mainland’s very different system.

4
Deng Xiaoping, One Country, Two Systems, 22-23 June 1984, Selected Works of Deng Xiaoping (1982-
1992), Vol. 3 (Beijing, Foreign Languages Press, 1994), pp. 69-71. See also Deng Xiaoping’s conversation
with Mrs Thatcher on 19 December 1984, p. 52-53.
 -5-

9. The product was the Joint Declaration which became effective on

19 December 1984.5 In the Joint Declaration, the Chinese Government declared

its basic policies towards Hong Kong and jointly with Britain agreed to

implement their respective declarations.6 China’s policies towards Hong Kong

were elaborated in Annex I which stated the Chinese Government would on

1 July 1997 establish a Special Administrative Region in Hong Kong and that

“the National People’s Congress would enact and promulgate a Basic Law in

accordance with Article 31 of the Chinese Constitution, stipulating that after the

establishment of the Hong Kong Special Administrative Region the socialist

system and socialist policies shall not be practised in the Hong Kong Special

Administrative Region and that Hong Kong’s previous capitalist system and

lifestyle shall remain unchanged for 50 years.” 7 The theme is continuity. 8

Subject to necessary constitutional changes everything will be the same as

before. So, “the laws previously in force in Hong Kong (i.e. the common law,

rules of equity, ordinances, subordinate legislation and customary law) shall be

maintained, save for any that contravene the Basic Law and subject to any

5
Its contents were made known in September 1984 after they were initialled by representatives of the two
countries.
6
Para 7 of the Joint Declaration says “the Government of the United Kingdom and the Government of the
People’s Republic of China agree to implement the preceding declarations and the Annexes to this Joint
Declaration”.
7
Joint Declaration Annex I part I “Establishment of the Hong Kong S.A.R. The Basic Law”.
8
See Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 (FACV 24/2007, 13 March
2008) per Li CJ.
 -6-

amendment by the Hong Kong Special Administrative Region legislature.” 9

Also, the rights and freedoms as provided for by the laws previously in force in

Hong Kong, including freedom “of the person, of speech, of the press, of

assembly, of association, to form and join trade unions, of correspondence, of

travel, of movement, of strike, of demonstration, of choice of occupation, of

academic research, of belief, inviolability of the home, the freedom to marry

and the right to raise a family freely” shall be maintained 10 by the Special

Administrative Region Government and enforced by the courts who “shall

exercise judicial power independently and free from any interference.” 11 The

power of final judgement of the Hong Kong Special Administrative Region will

be vested in the Court of Final Appeal in the Hong Kong Special Administrative

Region, “which may as required invite judges from other common law

jurisdictions to sit on the Court of Final Appeal”.12

10. Annex I was silent on the interpretation of the Basic Law. The

natural assumption was that the Hong Kong courts would interpret the Basic

Law using the common law approach.

9
Joint Declaration Annex I part II “Laws previously in force”. In this talk, I use “common law” as
shorthand for “laws previously in force”.
10
Ibid. Annex I part XIII “General”.
11
Ibid. Annex I part III “Judicial Power; Precedents”.
12
Ibid. Annex I part III “Power of final judgment”.
 -7-

11. The Basic Law was promulgated on 4 April 1990. 13 It has an

official English text. 14 It is a self-contained document and contains a

comprehensive statement of the Hong Kong system under the policy of One

Country, Two Systems.

12. As expected the Basic Law followed Annex I of the Joint

Declaration faithfully with further elaboration. In short, fundamental rights and

freedoms would continue to be protected and enforced by an independent

judiciary under the rule of law. Mr Rimsky Yuen SC, Secretary of Justice at the

time, said in this Lecture last year, 15 that the Basic Law guarantees the

maintenance of the Hong Kong Special Administrative Region’s common law

system, the rule of law and independence of the judiciary.

13. Although Annex I was silent on the interpretation of the Basic Law,

there are express provisions on the subject in the Basic Law. Twenty years on,

13
In June 1985, a few months after the Joint Declaration was ratified by China and Britain, the Hong Kong
Special Administrative Region Basic Law Drafting Committee was established. There were 59 members,
23 of whom from Hong Kong chosen from different walks of life. The 36 Mainland members were mostly
government officials. The drafting committee in tum created the Basic Law Consultative Committee with
180 members drawn from different sectors of the community in Hong Kong.
14
Decision of the Standing Committee of the National People’s Congress on the English Text of the Basic
Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted on 28
June 1990), where it is stated that the official English text is “equally authentic as the Chinese test” but “in
case of any discrepancy in the meaning of wording between the English text and the Chinese text, the
Chinese text shall prevail.” Instrument 14 to the Basic Law.
15
The Development of Common Law in Hong Kong: Past, Present and Future, given in this college on
25 May 2017.
 -8-

it seems obvious that the power can potentially undermine the rule of law in

Hong Kong. Article 158 provides (the paragraph numbers are added for easy

reference):

“(1) The power of the interpretation of this [Basic] Law shall be vested
in the Standing Committee.16
(2) The Standing Committee of the National People’s Congress shall
authorize the courts of the Hong Kong Special Administrative
Region to interpret on their own, in adjudicating cases, the
provisions of this Law which are within the limits of the autonomy
of the Region.
(3) The courts of the Hong Kong Special Administrative Region may
also interpret other provisions of this Law in adjudicating cases.
However, if the courts of the Region, in adjudicating cases, need to
interpret the provisions of this Law concerning affairs which are the
responsibility of the Central People’s Government, or concerning
the relationship between the Central Authorities and the Region,
and if such interpretation will affect the judgements on the cases,
the courts of the Region shall, before making their final judgements
which are not appealable, seek an interpretation of the relevant
provisions from the Standing Committee of the National People’s
Congress through the Court of Final Appeal of the Region. When
the Standing Committee makes an interpretation of the provisions
concerned, the courts of the Region, in applying those provisions,
shall follow the interpretation of the Standing Committee. However,
judgements previously rendered shall not be affected.”

16
Article 57 of the 1982 Chinese Constitution, “The National People’s Congress of the People’s Republic of
China is the highest organ of state power. Its permanent body is the Standing Committee of the National
People’s Congress.”
 -9-

14. Article 158(1) is the most important and I will deal with it last.

15. Article 158(2) confers on the Hong Kong courts the general power

in adjudicating cases to interpret provisions, which are within the limits of the

autonomy of Hong Kong. Under Article 12 of the Basic Law Hong Kong

enjoys a high degree of autonomy but defense and foreign affairs fall outside

the high degree of autonomy.17 The limitation to the Hong Kong courts’ power

to interpret the Basic Law under Article 158(2) is understandable and generally

accepted. The Basic Law is silent on whether interpretation by the Hong Kong

courts under Article 158(2) is final. Given Hong Kong’s high degree of

autonomy and the power of final adjudication in Hong Kong, one would expect

it to be so.

16. How is the Basic Law interpreted in Hong Kong? The Basic Law

requires it to be interpreted using the common law approach. 18 This is

important because as will be explained the approach under the Mainland system

is very different. In The Director of Immigration v Chong Fung Yuen (2001) 4

HKCFAR 211, Chief Justice Li delivering the judgement of the Court of Final

17
Articles 13 and 14.
18
This is not controversial. For example, Article 84 provides: “The courts of the Hong Kong Special
Administrative Region shall adjudicate cases in accordance with the laws applicable in the Region as
prescribed in Article 18 of this Law and may refer to precedents of other common law jurisdiction.” The
laws prescribed are, using shorthand, the common law. See also Article 8.
 - 10 -

Appeal said at:

“The courts’ role under the common law in interpreting the Basic Law is
to construe the language used in the text of the instrument in order to
ascertain the legislative intent as expressed in the language. Their task is
not to ascertain the intent of the lawmaker on its own. Their duty is to
ascertain what was meant by the language used and to give effect to the
legislative intent as expressed in the language. It is the text of the
enactment which is the law and it is regarded as important both that the
law should be certain and that it should be ascertainable by the citizen.”19
(Italics in the original)

17. He went on to say the law would not be certain, nor could it be

ascertained by the citizens if their meaning cannot be gathered from the

language used. That is why under the common law, the court is required:

“to identify the meaning borne by the language when considered in the
light of its context and purpose. This is an objective exercise. Whilst the
courts must avoid a literal, technical, narrow or rigid approach, they
cannot give the language a meaning which the language cannot bear.” 20

18. The Hong Kong courts’ approach towards the interpretation of

fundamental rights and freedoms guaranteed by the Basic Law is also important.

The Court of Final Appeal has time and again said “[t]he courts should give a

19
Chong Fung Yuen, at p. 223.
20
Ibid. At p. 224.
 - 11 -

generous interpretation to the provisions in Chapter III 21 that contain these

constitutional guarantees in order to give to Hong Kong residents the full

measure of fundamental rights and freedoms so constitutionally guaranteed.”22

More recently, Chief Justice Ma repeated the well-established point that under

the common law, cases will be decided not only according to the letter of the

law but also its spirit. And that the cases show clearly that guaranteed rights

and fundamental freedoms are to be construed liberally and generously.23

19. The courts’ common law approach towards rights and freedoms is

important because the Chinese Constitution also provides for freedoms using

language similar to those used in the Basic Law. For example, Article 35 of the

1982 Chinese Constitution provides “Citizens of the People’s Republic of China

enjoy freedom of speech, of the press, of assembly, of association, of procession

and of demonstration.” These rights interpreted under the Mainland system are

different from the same rights interpreted under the common law.

20. I turn to the Standing Committee’s power of interpretation. That

21
On “Fundamental Rights and Duties of the Residents”, with 19 Articles. Its length shows the feeling that
nothing should be left unsaid.
22
Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at p. 29A, cited in Shum Kwok Sher v
HKSAR (2002) 5 HKCFAR 381 at para 58 and Lam Siu Po v Commissioner of Police (2009) 12
HKCFAR 237 at para 17.
23
Twenty years of the Court of Final Appeal, talk given on occasion of Distinguished Speakers’ Luncheon
on 26 August 2017 to the Young Solicitors’ Group of the Law Society of Hong Kong.
 - 12 -

the Standing Committee, which promulgates and enacts the Basic Law, should

have the power to interpret is alien to Hong Kong’s previous system. The

Standing Committee’s power of interpretation is important because as Chief

Justice Li said in Chong Fung Yuen:

“In interpreting the Basic Law, the Standing Committee functions under a
system which is different from the system in Hong Kong. As has been
pointed out, under the Mainland system, legislative interpretation by the
Standing Committee can clarify or supplement laws.”24

21. Professor Albert HY Chen of the Law Faculty at the University of

Hong Kong has said interpretation by the Standing Committee is “a legislative

rather than judicial act.”25 A Mainland legal scholar, Wang Zhenmin, who is

now the head of the Legal Department of the Central Government’s Liaison

Office in Hong Kong, said, when he was a scholar, that “the Standing

Committee interprets law in its capacity as a legislative body.”26 It seems clear

the Standing Committee can give the language a meaning which it cannot bear.

22. The Standing Committee’s power under Article 158(3) is relatively

straightforward and I will deal with it first. Basically it enables the Hong Kong

24
Chong Fung Yuen, at p. 222.
25
See Another case of conflict between the Court of Final Appeal and the NPC Standing Committee?
(2001) 31 HKLJ at pp. 179, 185.
26
Zhenmin Wang, Relationship Between the Central Authorities and the Special Administrative Region:
An Analysis of Legal Structure (Beijing: Tsinghua University Press, 2002) p. 277.
 - 13 -

courts, in adjudicating cases, to seek interpretations from the NPCSC when it

needs to interpret provisions in the Basic Law concerning affairs which “are the

responsibility of the Central People’s Government, or concerning the

relationship between the Central Authorities and the Region”. Many would

regard the power of the Standing Committee to interpret such provisions

(outside the limits of Hong Kong’s high degree of autonomy) understandable

and acceptable.

23. Moreover, Article 158(4) provides some comfort. It provides:

“The Standing Committee of the National People’s Congress shall consult

its Committee for the Basic Law of the Hong Kong Special Administrative
Region before giving an interpretation of this law.”

24. The Basic Law Committee has a membership of twelve, six from

Hong Kong who are nominated jointly by the Chief Executive, President of the

Legislative Council and the Chief Justice of the Court of Final Appeal of the

Region for appointment by the Standing Committee of the National People’s

Congress. 27 Presumably, they could assist by making known Hong Kong’s

views on any intended interpretation.

27
Decision of the National People’s Congress Approving the Proposal by the Drafting Committee for the
Basic Law of the Hong Kong Special Administrative Region on the Establishment of the Committee for
the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the
National People’s Congress (adopted at the Third Session of the Seventh National People’s Congress on 4
April 1990). Basic Law, Appendix to Instrument 13, item 4.
 - 14 -

25. Given that such interpretation involves provisions outside Hong

Kong’s autonomy and the nature of the Standing Committee, one could not

expect the Standing Committee to use the common law approach. That is not to

say that it would ignore how those provisions are understood in Hong Kong.

The creation of the Basic Law Committee under Article 158(4) suggests that

Hong Kong’s understanding and views on those provisions are relevant. So far,

there has only been one explicit interpretation under Article 158(3), in the well-

known Congo 28 case which, as the majority in the Court of Final Appeal 29

pointed out, involved provisions concerning state immunity which is an area

involving powers which have always been reserved to the Central People’s

Government, falling outside the limits of the Region’s autonomy. 30 With

respect, I have no doubt about the correctness of the majority’s decision.

26. The Standing Committee issued an interpretation based on China’s

notion of state immunity.31 This is understandable and acceptable since China

is a unitary state. Under Article 158(3) the interpretation has retrospective

28
Democratic Republic of the Congo v FG Hemisphere Associates LLC (No 1) (2011) 14 HKCFAR 95.
29
Chan PJ, Ribeiro PJ and Sir Anthony Mason NPJ.
30
Ibid, at p. 165.
31
Interpretation of Paragraph 1, Article 13 and Article 19 of the Basic Law of the Hong Kong Special
Administrative Region of the People’s Republic of China by the Standing Committee of the National
People’s Congress (Adopted at the Twenty Second Session of the Standing Committee of the Eleventh
National People’s Congress on 26 August 2011), Instrument 22 to the Basic Law.
 - 15 -

effect. But since it was made prior to final judgment in Hong Kong and

concerns provisions outside Hong Kong’s autonomy and in the special situation

of One Country, Two Systems, most people would agree that this would not

damage the rule of law in Hong Kong.

27. Article 158(1) provides “The power of interpretation of this Law

shall be vested in the Standing Committee of the National People’s Congress.”

Since the Standing Committee has power to interpret any Chinese law under

Article 67(4) of the Chinese Constitution, it is not surprising that the Basic Law

should contain a similar provision. Since the success of the policy of One

Country, Two Systems depends on self-restraint on the part of the Chinese

Government, it is not unreasonable to expect self-restraint in the exercise of

such power. However, the power is general. In my opinion, this general power

which is legislative in nature is not necessarily incompatible with the rule of law.

It can be compared with the theoretical supreme power which the British

Parliament used to enjoy. So, although the general power of interpretation

under Article 158(1) could theoretically be used to change the Basic Law

beyond recognition, for as long as it remains theoretical, it is not a real threat to

the rule of law. Indeed, the Standing Committee has power under Article 159

and the Chinese Constitution to amend the Basic Law and could amend it
 - 16 -

beyond recognition. Such theoretical power is not incompatible with the rule of

law.

28. However, the Standing Committee has interpreted the Basic Law

on four occasions under Article 158(1)32 and one should consider their impact,

if any, on the rule of law. I say at once that the interpretations before 2016 are

less concerning.

29. I adopt as a working definition of the rule of law for Hong Kong

what Lord Bingham of Cornhill described as the core of the existing principle of

the rule of law, namely, that all persons and authorities within the state, whether

public or private, should be bound by and entitled to the benefit of laws publicly

made, taking effect (generally) in the future and publicly administered in the

courts.33

30. “Publicly made” carries with it the ingredient that “the law must be

accessible and so far as possible intelligible, clear and predictable.”34 However,

legislative interpretation by the Standing Committee, even one which overrules

32
Only one interpretation, namely the Congo case (see para 25 above), is made under Article 158(3), bringing
it to a total of five.
33
The Rule of Law (see footnote 1 above), at p. 8.
34
Ibid at p. 37.
 - 17 -

a binding decision of the Court of Final Appeal, is not necessarily incompatible

with the rule of law if such interpretation is not given retrospective effect. As

Wang Zhenmin, when he was a scholar, pointed out such interpretation is not

“dissimilar to the overriding of precedence by legislation under common law

systems.”35

31. Moreover, as Lord Bingham was quick to add:

“even the most ardent constitutionalist would not suggest that [this
definition] could be universally applied without exception or
qualification. … But generally speaking any departure from the rule I have
stated calls for close consideration and clear justification.”36

32. The first interpretation took place in June 1999 and requires a

longer explanation. It was very controversial at the time and gave rise to

serious misgivings. Time and experience have moderated views, including my

own. It was made upon the request of the Chief Executive of Hong Kong for a

legislative interpretation of “Articles 22(4) and 24(2)(3) of the Basic Law

according to the true legislative intent” following the Court of Final Appeal’s

decision in Ng Ka Ling of 29 January 1999. Under Article 24 there are six

categories of permanent residents of Hong Kong. Ng Ka Ling was concerned

35
Zhenmin Wang, From the Judicial Committee of the British Privy Council to the Standing Committee of
the Chinese National People’s Congress – An Evaluation of the Legal Interpretative Systems after the
Handover (2007) 35 HKLJ 605 at p. 611.
36
The Rule of Law at p. 8.
 - 18 -

with category (3) namely, Chinese nationals born on the Mainland of a parent

who was a Hong Kong permanent resident. The Government asked the court to

refer the interpretation of Article 24(2)(3) to the Standing Committee under

Article 158(3) for interpretation because they said category (3) concerned

Chinese residents in China who under Article 22(4) must apply for approval

from the Chinese Authorities for entry into Hong Kong.

33. The Court of Final Appeal held that the language of Article 24(2)(3)

shows that such persons are permanent residents of Hong Kong and declared as

invalid as contrary to the Basic Law, legislation which provided that their status

as permanent residents depended upon approval by the Chinese Authorities.

The court was of the view that Article 24(2)(3) was freestanding and should be

interpreted without reference to Article 22(4), and refused to refer under Article

158(3). The Chief Executive of Hong Kong Special Administrative Region,

who believed on the basis of the decision hundreds of thousands, if not more,

persons then residing in the Mainland might at once settle in Hong Kong,

requested an interpretation.

34. The Standing Committee issued an interpretation dated 26 June

1999 (the “June 1999 Interpretation”). It was headed: “The Interpretation by

 - 19 -

the (NPCSC) of Articles 22(4) and 24(2)(3) of the Basic Law” and stated those

provisions concerned affairs which are the responsibility of the Central People’s

Government and concerned the relationship between the Central Authorities and

the Hong Kong Special Administrative Region. Although the Standing

Committee did not say so, it was obviously its view that the Court of Final

Appeal should have referred under Article 158(3). As there was no reference

the interpretation was made under Article 158(1). 37 Under the June 1999

Interpretation, the rights of persons covered by Article 24(2)(3) would depend

on their obtaining approval under Article 22(4). Although the Standing

Committee disapproved the common law interpretation adopted by the Court of

Final Appeal, it expressly preserved the benefit of the court’s decision in respect

of persons who were covered by that decision.38 So the decision was final as

between the parties. Subject to that, the June 1999 Interpretation went on to

provide for retrospective effect as if it had been made under Article 158(3).39

35. Given the Standing Committee’s view that there should have been

a reference under Article 158(3), which is, with respect, a highly tenable view,

and cannot be disputed in Hong Kong, the June 1999 Interpretation falls in a

37
Preamble to the June 1999 Interpretation; Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR
300, at pp. 319 - 320.
38
They were called persons who should not be affected by the interpretation (the unaffected persons) in Lau
Kong Yung at p. 326.
39
Final paragraph of the June 1999 Interpretation.
 - 20 -

class of its own. The situation though special does not in my view require any

modification of Lord Bingham’s test.

36. The next obvious question is: how should the Hong Kong courts

interpret the Standing Committee’s interpretations of the Basic Law? This arose

in an acute form in Director of Immigration v Chong Fung Yuen (2001) 4

HKCFAR 211. It will be remembered that the June 1999 Interpretation was

concerned with Article 24(2) under which six categories of persons are regarded

as permanent residents. The June 1999 Interpretation arose out of Ng Ka Ling

which, when summarized for our purpose, was concerned with category (3)

only, namely, Chinese nationals born outside Hong Kong of Hong Kong

permanent residents. Chong Fung Yuen was concerned with category (1),

namely “Chinese citizens born in Hong Kong before or after the establishment

of the (HKSAR).” In the June 1999 interpretation the Standing Committee said

that the legislative intent of all categories of permanent residents under Article

24(2) was reflected in the opinions on the implementation of Article 24(2) of

the Basic Law which had been adopted at the Fourth Plenary Meeting of the

Preparatory Committee for the Hong Kong Special Administrative Region on

10 August 1996 (“the 1996 Opinion”).40 According to that Opinion Article

40
Penultimate paragraph of the June 1999 Interpretation.
 - 21 -

24(2)(1) applies to a person only if at least one of the parents of that person has

settled or has the right of abode in Hong Kong at the time of the claimant’s birth

or any later time. In other words, a Chinese citizen would not acquire

permanent residence in Hong Kong merely by being born in Hong Kong.

37. Relying on provisions in the Immigration Ordinance to similar

effect, the Director of Immigration rejected the claim to permanent residence by

Chong Fung Yuen and others of similar immigration status. It was rightly

conceded on behalf of The Director that Article 24(2)(1) was not the subject of

the June 1999 Interpretation, but it was argued that it was clear from the June

1999 Interpretation that the Standing Committee agreed with the Opinion, and

that the Court of Final Appeal should have regard to such clear view. Chief

Justice Li giving the unanimous decision of the CFA said:41

“On the common law approach, which the Court is under a duty to
apply in the absence of a binding interpretation by the Standing
Committee, the statement in question42 cannot affect the clear meaning of
Article 24(2)(1) properly reached, applying the common law approach.”

38. This is a strict and principled approach. One might say it was a

bold decision because the court ran the risk of being slapped down with a

41
Chong Fung Yuen, at p. 233F.
42
Namely the statement in the June 1999 Interpretation that the legislative intent of all other categories of
Article 24(2) have been reflected in the preparatory committee’s opinion on the implementation of Article
24(2).
 - 22 -

contrary interpretation. But that did not happen. Presumably because the

Standing Committee recognized that the meaning of Article 24(2)(1) was within

the limit of Hong Kong’s autonomy and the Court of Final Appeal’s

determination should be final.

39. The other three interpretations were made in the absence of any

prompting from Hong Kong.

40. Two were entirely political. The earlier was made on 6 April 2004

and concerned the selection of the Chief Executive and the Election of the

Legislative Council subsequent to the year 2007. The later took place on 27

April 2005 regarding the selection of a new Chief Executive when the office

becomes vacant, under Article 53(2). Both concern future events and are

comparable to legislative acts which relate to the future and are not

incompatible with the rule of law.

41. The most recent interpretation took place on 7 November 2016

(“the 2016 Interpretation”). 43 It concerns Basic Law Article 104 which

43
Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the
People’s Republic of China by the Standing Committee of the National People’s Congress (Adopted by
the Standing Committee of the Twelfth National People’s Congress at its Twenty-fourth Session on 7
November 2016) Instrument 25 to the Basic Law.
 - 23 -

provides:

“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.”

42. The 2016 Interpretation, unless properly handled, can blur the

boundary between the two systems. For the present purpose, I will mention two

paragraphs only. Para 1 provides that the oaths stipulated in Article 104 “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.”

Para 3 provides that “The taking of the oath ... 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.”

 - 24 -

43. I express no personal view regarding the 2016 Interpretation. So

far, its effect has been felt by persons elected to the Legislative Council who

have been deprived of their seats as well as persons who were not allowed to

stand for election because of the “preconditions for standing for election”.

Already there is litigation. I believe the Hong Kong courts will resolve them in

a principled way using the common law approach.

44. Using the common law approach, one should ask first whether this

or any interpretation by the Standing Committee should be given retrospective

effect? An interpretation under Article 158(3) has retrospective effect because

it expressly so provides. Article 158(1) is silent. At common law, an

interpretation by the courts in Hong Kong would have retrospective effect

because of the common law declaratory theory of judicial decision. Stating the

obvious, the Standing Committee is not a court and the interpretation is

legislative and not judicial.

45. However, in Lau Kong Yung, which was decided in the immediate

aftermath of the June 1999 Interpretation, the Court of Final Appeal said that

the June 1999 Interpretation, “... being an interpretation of the relevant

provisions, dates from 1 July 1997 when the Basic Law came into effect. It
 - 25 -

declared what the law has always been. Compare the common law declaratory

theory of judicial decisions, see Kleinwort Benson Ltd v Lincoln City Council

[1998] 3 WLR 1095 at pages 1117 - 1119 and 1148.”44

46. This statement was unnecessary to the decision because the June

1999 Interpretation provided expressly for retrospective effect and was binding

on the Court of Final Appeal. I do not believe Lau Kong Yung is a binding

authority on the point. However, it has been followed in Hong Kong,45 most

recently by a decision of a strong Appeal Committee of the Court of Final

Appeal refusing leave where the point was basically academic.

47. But whether or not Lau Kong Yung is binding, the Court of Final

Appeal may if it wishes to do so reconsider the point in a full court of five

judges after full argument. 46 The 2016 Interpretation may provide a good

opportunity for it to do so.

48. Academic writers have provided reasons why such interpretations

44
Lau Kong Yung at p. 326.
45
See, for example, the decision of the Appeal Committee dated 1 September 2017, Chief Executive of the
Hong Kong Special Administrative Region & Others v Sixtus Leung Chung Hang & Others FAMV Nos
7, 8, 9 and 10 of 2017 and case cited therein at para 35.
46
Solicitor (24/07) at para 20.
 - 26 -

should not have retrospective effect. 47 Some said that if the Court of Final

Appeal should reconsider the retrospectivity issue given that an interpretation

by the Standing Committee is legislative in nature, the Court of Final Appeal

might wish to adopt the common law approach and have regard to the

presumption against retrospectivity of legislation such that unless a contrary

intention appears, a legislative provision is presumed not to operate

retrospectively. The learned authors also noted that the 2016 Interpretation is in

fact silent on whether it should have retrospective effect and made the point that

if the NPCSC had intended to make the interpretation retrospective, it could

have easily expressed its intention in the text48 as it had done in the June 1999

Interpretation.

49. Some might say regardless of any decision in Hong Kong, the

Standing Committee could expressly make any interpretation retrospective, and

there is no point. Lau Kong Yung shows that it is not pointless. Pre-emptive

action is not warranted.

50. Nor should one presume that the Standing Committee would give

every interpretation retrospective effect. Firstly, they have not done so.
47
Dr Po Jen Yap, an Associate Professor at the Faculty of Law, the University of Hong Kong together with
Eric Chan, a Juris Doctor candidate.
48
Legislative Oaths and Judicial Intervention in Hong Kong 47 HKLJ 1 at pp. 13-14.
 - 27 -

Secondly, the Basic Law guarantees that the rights and freedoms protected by

the laws previously in force would be maintained and these rights and freedoms

include the rule of law with the presumption against retrospective legislation.

One should not presume that the Standing Committee would be unmindful of

these guarantees. One Country, Two Systems remains the Chinese policy

towards Taiwan. As Deng Xiaoping had acknowledged the alterative would be

force.49 A calamity too awful to contemplate.

51. The Hong Kong courts should consider first whether all

interpretations should be given retrospective effect. If not, that would remove

one important concern.

52. However, retrospective effect is not the only way in which the rule

of law can be undermined. As Lord Bingham said the rule of law should

embrace the protection of human rights within its scope.50 Fundamental rights

and freedoms are guaranteed by the Basic Law.

53. Given the many assurances about the policy of One Country, Two

Systems both before and after 1997 as well as assurances that Hong Kong’s
49
Third Plenary Session of the Central Advisory Commission of the Communist Party of China, 22 October
1984.
50
The Rule of Law at p. 67.
 - 28 -

previous lifestyle would continue after the handover, the Hong Kong courts

should interpret any interpretation of the Standing Committee without

undermining any of these fundamental rights and freedoms. Of which, freedom

of conscience51 so long taken for granted that a reminder that it carries with it

the freedom to embrace or not to embrace any religious or political creed will

not go amiss.

54. The success of One Country, Two Systems depends on everyone

playing his part. The Judges’ part is to decide cases properly, in a principled

way, without fear or favour. I think for as long as Hong Kong judges do so

fairly, impartially, and explaining carefully why they decide the way they did,

any dissatisfaction will be temporary and both the Central Government and

Hong Kong will appreciate this clear demonstration of the rule of law. Happily,

I have no doubt that judges have the whole-hearted support of the Hong Kong

Special Administrative Region Government and the community and that they

realise that unswerving adherence to principle is the hallmark of the rule of law.

55. I wish to conclude by repeating former Chief Justice Li’s

observation that Hong Kong should maintain a high level of vigilance against

51
Article 32 of the Basic Law.
 - 29 -

any threats to the city’s core values of judicial independence and the rule of

law.52

56. I thank you for your patience and apologise for taking up so much

of your time. The importance of Dr Mok Hing Yiu Memorial Lecture is my

only excuse.

52
Hong Kong's judicial independence is here to stay - as long as “one country” and “two systems” are both
fully recognised, the South China Morning Post, 24 September 2015 accessed 21 December 2017.