UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW

Constitutional Law (LLB) (2024-2025)

TUTORIAL WORKSHEET 2

This Worksheet consists of Sections A and B. Please note that the readings for the two sections
are different.

SECTION A

Preparation required:

Please read the Basic Law and relevant materials on the topic of “Autonomy and Central-
SAR Relationship”, including the ‘Explanations’ on the NPC Decision on National Security
in the HKSAR (2020) and on the NPC Decision on Electoral Reform (2021).

In the course of your reading, try to identify and study more intensively those passages in the
readings which relate directly to the questions below.
Questions for discussion

Please be prepared to discuss the following questions. Other related or follow-up questions
may also be discussed at the tutorial.

1. How are the concepts of “sovereignty” and “autonomy” expressed in the Basic Law?
Sovereignty:
 Preamble: upon China's resumption of the exercise of sovereignty over Hong Kong…
upholding national unity and territorial integrity
 BL Art 1: “The Hong Kong Special Administrative Region is an inalienable part of
the People’s Republic of China.” Territorial sovereignty
 BL Art 2: authorizes high degree of autonomy
 “China’s resumption of the exercise of the sovereignty over HK” (in Preamble and
Guiding Principle)
 BL Art 13: “CPG shall be responsible for the foreign affairs to HKSAR…The
Central People’s Government authorizes the Hong Kong Special Administrative
Region to conduct relevant external affairs on its own in accordance with this
Law.”=> authorization required from CPG, foreign affairs still in power of CPG=>
sovereignty
 BL Art 20:(concept of plenary power: delegated by CPG and HSKAR cannot
exercise any power not delegated to it): Article 20 of the Basic Law provides that the
HKSAR may enjoy other powers granted to it by the central authorities (other
powers: powers that have not been expressly conferred upon the HKSAR by the
Basic Law)=> implies that any ‘residual’ power not conferred upon the
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 HKSAR vests in the central authorities.
 BL Art 104 (Patriots ruling HK): which requires the CE, principal officials,
legislative and executive councillors, and judges to take an oath to uphold the Basic
Law and swear allegiance to the HKSAR of the PRC, embodies this ‘patriots’
principle. (swearing to PRC=> PRC ruling HK: sovereignty) (borderline)

 BL45, 48: CE nominate and report to CPG for appointing principal officials
 BL 79: president of LegCo should DQ member if breach oath
 Art. 158: Interpretation of HKBL lies with NPCSC (Interpretative power vested with
NPCSC regarding the HKBL : sovereignty
The court of HKSAR may interpret the BL when adjudicating cases (autonomy); but
CANNOT interpret matters regarding: (sovereignty: Responsibility of CPG, Relationship
between the CA and HKSAR)
 Art. 159 Amending HKBL : NPC:
no amendment should contravene the established basic policies in PRC (in the Sino-British
Joint Declaration) – sovereignty

Autonomy:

- Preamble: as well: and that under the principle of "one country, two systems", the
socialist system and policies will not be practised in Hong Kong.
- BL 2: The National People's Congress authorises the Hong Kong Special
Administrative Region to exercise a high degree of autonomy and enjoy executive,
legislative and independent judicial power, including that of final adjudication, in
accordance with the provisions of this Law. (SBJD 3(2))
- BL 3: The executive authorities and legislature of the Hong Kong Special
Administrative Region shall be composed of permanent residents of Hong Kong in
accordance with the relevant provisions of this Law.
 Hong Kong people ruling Hong Kong
- BL 5: The socialist system and policies shall not be practised in the Hong Kong Special
Administrative Region, and the previous capitalist system and way of life shall remain
unchanged for 50 years.
- BL 12: HKSAR shall be a local administrative region of the People's Republic of China,
which shall enjoy a high degree of autonomy and come directly under the Central People's
Government.
- BL 17: legislative power, NPCSC may return and thus invalidate laws (SBJD Annex I)
- BL art 8 and 18: high degree of continuity in the legal system and the applicable
laws in Hong Kong before and after the handover

- Art. 159 Amending HKBL : NPC: Local mechanism to amend the BL (very high
threshold tho :)) – autonomy
- Art 160: the adoption of the laws previously in force in Hong Kong except those
declared by the NPCSC to be in contravention of the Basic Law

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 comprehensive review of the existing laws in Hong Kong for the purpose of deciding
which laws should not survive the handover under Article 160=> no effect after the
decision

Sovereignty vs Autonomy: how much power is given to HKSAR by CPG?

- One country is the base of autonomy

- High degree and high extent of autonomy is ambiguous: vary to subjective
interpretation (pro-local: HKSAR has all power except foreign affairs, pro china:
depends on CPG)=> different expectations

2. It is said that the Hong Kong Special Administrative Region (HKSAR) enjoys a high
degree of autonomy under the Basic Law. Is this true or to what extent is this true?

True to a large extent (true in many aspects eg judicial, financial, immigration,

customs, just that matters that deal with LegCo and Executive branch: NPC and
NPCSC will have the final say on the ‘red line’ in the political issues (eg electoral
reform, LegCo election))

The question did not define “high degree of autonomy”, but not defined by the court
High degree of autonomy: (just define on basis of BL will be ok, not necessary a right
definition in exam)
- BL did not really specify liberal democracy or authoritative rule (find the definition in
BL)

Autonomy definition: constitutional arrangement that allows for separate allocations of

governmental power to the national government and the local government.

Autonomous:

1. Independent judicial system:

- More than 95%of the laws enacted by China’s national legislature (the NPC and its
Standing Committee) are not applicable to the SAR; the pre-existing common law
system and legislation are largely preserved in Hong Kong.

- Art 8 and 18: continuity of legal system: Cases litigated before the Hong Kong courts
are entirely resolved within the Hong Kong court system ; art 19: independent judicial
power

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 - Art 158: requires CFA to refer relevant provisions of the Basic Law to NPCSC:
interpretations made by the NPCSC cannot overturn a final court judgment previously
rendered.

2. Independent Legislative power (art18)

3. Financial autonomy:

- independent tax system (BL art 108): Hong Kong residents do not have to pay any tax
to the central government, and the tax that they pay to the SAR government will be
used for the SAR exclusively – no part of it will be handed over to the central
government.

- Independent currency: The SAR can continue to have and issue its own currency, the
Hong Kong dollar.

4. Autonomy on immigration

- The SAR can control and regulate entry and exit of persons into and out of the SAR.
(art 154: apply immigration controls on entry into, stay in and departure from the
Region by persons from foreign states and regions; art 22: The Government of the
HKSAR also controls entry into the HKSAR from other parts of China)

- HK has permission control in 自由行 but Chinese can apply 自由行 visa when they go to
HK (permitted by China), does that mean no immigration control by HK? ; HK ppl
sometimes are less convenient than Chinese in travelling (eg Thailand: as HK ppl
have no Chinese visa)=> counter point: CPG actually has a higher control over HK
immigration department in terms of immigration issue

5. Separate custom territory

- Art 116: The SAR is a customs territory separate from other parts of China. The SAR,
using the name of ‘Hong Kong, China’,

- can enter into economic and cultural relations with other countries, sign international
agreements (eg agreements on trade and tariffs) in these domains and participate in
some international organisations (such as the World Trade Organization) whose
membership is not restricted to sovereign states.

6. Some matters that deal with national security are within the power of HK

- NSL authorises the court to obtain a certificate from the CE to certify whether that
relevant act concerns national security.

Non-autonomous:

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 a. NPCSC holds the power to interpret and NPC to amend BL

 Article 15 (appointment of the Chief Executive and principal officials), 17

(invalidation of Hong Kong legislation), 18 (application of national laws to Hong
Kong), 158 (interpretation of the Basic Law) and 159 (amendment of the Basic Law)

 under Article 17, the NPCSC has the power to nullify SAR laws that exceed the
scope of the SAR’s autonomy. (not practiced)

 Under Article 158 of the Basic Law, the NPCSC may issue an interpretation of the
Basic Law.

o First interpretation requested by CE: concerning right of abode in Ng Ka

Ling and Chan Kam Nga:overruling CFA interpretation which would have
allowed 1.67m people to immigrate to hk

o 2nd interpretation not requested by CE: CE electoral reform: the CE should

make a report to the NPCSC on whether ‘there is a need to amend’ the
existing mode of election of the CE or the LegCo. Secondly, the NPCSC,
after considering the CE’s report, will make a decision thereon. (resolves the
ambiguity in ‘whether there is a need for electoral reform’ by vesting the
power in NPCSC

o 3rd interpretation: on Article 53(2) of the Basic Law (which deals with
vacancy in the office of the CE and an election being held to fill the
vacancy), stipulating that if a vacancy in the office of the CE arises before the
five-year term is completed, the new CE will serve the remainder of their
predecessor’s term of office.

o 4th interpretation requested by CFA: Article 13(1) vests in the Central

People’s Government the responsibility for the ‘foreign affairs relating to the
HKSAR’ and Article 19(3) excludes matters relating to ‘acts of state such as
defence and foreign affairs’ from the HKSAR’s jurisdiction.

o 5th interpretation not requested by HKSAR: ‘If the oath taken is determined
as invalid, no arrangement shall be made for retaking the oath’ for BL 104=>
such declaration was pre-requisite (impact: constituted part of the legal basis
for the enactment of the Public Offices (Candidacy and Taking Up Offices)
(Miscellaneous Amendments) Ordinance in 2021)

NPCSC’s decisions: (only 2006 decision has basis in BL( art 20: HKSAR ‘may enjoy other
powers granted to it’ by the central authorities.)

- 2004, 2007 and 2014 decisions on electoral reform

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 - 2006 and 2017 decisions on the ‘co-location’ of mainland and HKSAR immigration
and customs checkpoints and West Kowloon Express Railway

- another two decisions in 2020 relating to the LegCo of the HKSAR. (1. extended
terms of LegCo when the LegCo election was delayed for a year due to pandemic: but
no clear legal basis here=> NPCSC acted on behalf of NPC to legislate on systems; 2.
DQ 4 LegCo members to serve during its extended term, on the ground that they were
Dqed from standing as candidates in LegCo previously scheduled in 2020 )

 Art 159: NPC to amend the main text of the Basic Law has never been exercised,
although Annexes I, II and III to the Basic Law have been amended. (NPCSC
amended Annexes I and II in 2021)

b. Decision-making’ power of NPC

 Decision on national security in the HKSAR (2020) and the Decision on electoral
reform in the HKSAR (2021).

c. Application of National Laws to the HKSAR

- the NPCSC has the power, under Article 18 of the Basic Law, to apply to the
HKSAR national laws relating to defence, foreign affairs and other matters
outside the limits of the autonomy of the HKSAR. Such (14) national laws –
listed in Annex III to the Basic Law – are added by the NPCSC from time to time.

- The CFA has also ruled that the NSL itself is effectively immune from any
constitutional challenge lodged on the ground that the NSL is incompatible with
the Basic Law. (decided by HK Court)

- NSL authorizes central authorities to establish National Security Office (NSO) in

Hong Kong. (Counter-argument: it only arises in special or exceptional
circumstances?)

- Remarks NSL: controversies: the case where 47 people charged, whether a

foreign-qualified barrister is eligible to serve as counsel in cases concerning
national security. (CFA granted Timothy Owen KC’s admission to Lai Chee
Ying’s case=> independent judicial power in NSL cases (though there was
interpretation required by CE to NPCSC to interpret art 14 and 47)

3. Examine the following documents: (a) the White Paper (2014), (b) President Xi’s
speeches in 2017, (c) the explanatory speech on the NPC Decision on National Security
in the HKSAR (2020), and (d) the explanatory speech on the NPC Decision on Electoral
Reform in the HKSAR (2021).
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 Is there any change in the Central Authorities’ policy on ‘One Country, Two Systems’
(OCTS) after the ‘Anti-Extradition Law Movement’ of 2019? If there is a change, discuss
both the continuity (if any) and the change in the OCTS policy.

Red: main points

White paper
- fundamental objectives of maintaining China's sovereignty, security and
development interests and maintaining the long-term stability and prosperity of
Hong Kong
- China's central government has comprehensive jurisdiction over all local
administrative regions, including the HKSAR. The high degree of autonomy of
HKSAR is not an inherent power, but one that comes solely from the
authorization by the central leadership.
- The Constitution of the PRC and the Basic Law together constitute the
constitutional basis of the HKSAR.
- The HK People Who Govern HK Should Above All Be Patriotic
- The ultimate aim of selection of CE will be one by universal suffrage upon
nomination by a broadly representative nominating committee in accordance with
democratic procedures and the election of all the members of LegCo by universal
suffrage. (must serve the country's sovereignty, security and development
interests)
- Central supported HK continue to have rule of law, social harmony and
stability=> economic prosperity, HK continue to be an international financial
centre
- Promoting exchanges and cooperation between mainland and HK

Xi’s Speeches
- Emphasis on the success of HK enjoying steady economic growth (status as IFC)
and maintaining social stability
- Mainland’s strong backing to HK
- The Central Government exercises jurisdiction over Hong Kong in accordance
with China's Constitution and the Basic Law of the HKSAR

- Main point is this: HK needs to improve its systems to uphold national

sovereignty, security and development interests.(by education eg) (with emphasis:
Any attempt to endanger China's sovereignty and security, challenge the power of
the Central Government and the authority of the Basic Law of the HKSAR or use
Hong Kong to carry out infiltration and sabotage activities against the mainland is
an act that crosses the red line, and is absolutely impermissible. ) 兩 制 一 國 是 根 :
imperative to have a correct understanding of the relationship between OCTS,
one country is like the root of the tree, concepts: no foreign influence, red line,
national unity and security

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 - Focus on development as the top priority

- maintain a harmonious and stable social environment: peace and harmony

Explanation on NPC decision on national security

- citing activities that have seriously challenged the bottom line of the "one
country, two systems" principle, harmed the rule of law, and threatened national
sovereignty, security and development interests. (national security risk)
- Inability of HK government on Legislation on national security law, need the
central government to use the NSL to safeguard China and HK’s interest

- Art 1: OCTS principle and high degree of autonomy, but need law to safeguard
and strengthen NSL

Explanations on NPC’s decision on Improving electoral system

- meet the realities in the Hong Kong SAR and serve to ensure “patriots
administering Hong Kong
- conducive to safeguarding China’s national sovereignty, security and
development interests and help maintain the long-term prosperity and stability of
Hong Kong.
- Riots and trubulence reveals that the existing electoral system has clear loopholes
and deficiencies
- Acting in line with the actual circumstances of Hong Kong: democratic elections
(but not universal suffrage)
- improving the governance efficacy of the Hong Kong SAR.
- The Election Committee will be entrusted with the new function of electing a
relatively large share of Legislative Council members and directly participating in
the nomination of all candidates for the Legislative Council.
- Uphold the interest of the sovereign and the state
- Follow Xi’s direction
- Comprehensive jurisdiction: 深層矛盾resolved => 長治久安

Continuity:
- PRC Constitution and BL all the way have been the constitution of HK
- Emphasis on ‘one jurisdiction’: uphold national sovereignty, security and
development interests.
- Emphasis on peace, harmony and economy
- Emphasis on patriots ruling HK

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 Changes:
- Increasingly strong emphasis on the political red line (over sovereignty of
China on HK), peace, harmony and economic development as an IFC
- Regarding the red line, the way that Central Authorities clarify its basis of
OCTS (sovereignty, security, development interests) shifted from education
and promoting awareness to legislation (that focuses on punishment), which
has a higher deterent effect (after 2019)
- No more emphasis on the original ultimate aim of universal suffrage
(Election committee will elect a large share of LegCo); prioritize patriots
ruling HK
- Emphasis on governance of HKSAR government after 2019

- More detailed instructions on what should be done in ‘patriots ruling HK’

rule: reform in election (implementation part): high level concept: patriots
cannot affect/ harm HK (emphasis on patriots ruling HK)

4. Examine the Court of Appeal’s judgment in the ‘co-location case’ of Kwok Cheuk-kin
[2021] HKCA 871. What is the Court of Appeal’s view on the legal status and legal force
in the HKSAR of ‘decisions’ of the NPCSC on matters relating to the HKSAR?

NPCSC approving the co-location decision in 2017: HKSAR should legislate to ensure co-operation
arrangement
Mainland will exercise jurisdiction over the West Kowloon Station Mainland Port Area in accordance
with the laws of the Mainland and the Co-operation Arrangement-> The Guangzhou-Shenzhen-Hong
Kong Express Rail Link (Co-location) Bill
Grounds for 1st appeal
- Excluding HK laws and applying mainland laws in a region within HK is in violation with BL 18
and 19
- Disapplication of HK laws is in violation of a number of provisions of the Basic Law which confer
executive, legislative and judicial powers over Hong Kong on the HKSAR Government (BLs 16,
22, 48 and 59), the Legislative Council (BLs 8, 17, 18 and 66) and the Hong Kong courts (BLs 19,
80, 82, 84 and 87).
- Basic structure doctrine: non-application of Mainland laws and the maintenance of the jurisdiction
of Hong Kong courts are basic inviolable features of the Basic Law (art159)
- Alternative argument: if the Mainland Port Area can be validly treated as lying outside Hong Kong
under section 6, then section 3 of the Ordinance, in applying Hong Kong laws to the Mainland Port
Area, is unconstitutional because this is not authorised by the Basic Law.
Legal force:
- under the Mainland laws, NPCSC has the power under the Constitution to decide
whether a particular matter is compliant with the “one country, two systems”
principle and the Basic Law.

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 - NPCSC also has the power under BLs 2, 17(2) and (3), and 158(1) to decide
whether an arrangement is compliant with the Basic Law.
- under the Mainland laws, the NPCSC Decision has legal effect and is binding
both in the Mainland and on Hong Kong courts.
- Re Appellants: NPCSC decision was not made through a mechanism within BL
so courts cannot rely on it: Leung Lai Kwok Yvonne v The Chief Secretary for
Administration: Hong Kong courts have no power to determine whether the
NPCSC Decision is invalid under Hong Kong laws
- Legal force: judges should at least treat NPCSC decision as post-enactment
extrinsic materials, should be highly persuasive as an interpretation aid
- Re ground 3: the ordinance was ruled consistent with BL already, no question of
BL structure amended by the ordinance
- Once NPCSC decision=> ordinance is consistent with BL in Mainland Port area,
fundamental rights in BL and HKBOR cannot be relied on
- Re ground 4: s6 does not apply to reserved matters
Grounds in 2nd Appeal
(1) The Judge erred in relying on or placing excessive reliance on the principle that the Basic Law should be
treated as a “living instrument”. (Ground 1)
(2) The Judge erred in taking into account the NPCSC Decision and/or finding it to be highly persuasive. (Ground
2)
(3) The Judge erred in finding that the Ordinance is consistent with the Basic Law, contrary to BL 18 and BL 19
and the basic purposes and policies of the Basic Law. (Ground 3)
(4) The Judge erred in finding that the establishment of the Mainland Port Area in the West Kowloon Station is
itself a manifestation of the exercise of Hong Kong’s high degree of autonomy and recognition of the two distinct
and separate systems being practiced in Hong Kong and the Mainland. (Ground 4)

Director of Immigration v Chong Fung Yuen: courts in HK are bound to follow NPCSC
interpretation of BL
LEGAL FORCE AND STATUS: binding
[66]: Under both the Constitution and the Basic Law, the Standing Committee has the
ultimate authority and power to decide if a subject matter lying at the interface of the two
systems conforms with the Constitution and the Basic Law. The authority of the Standing
Committee to make such decision must be fully acknowledged and respected in the HKSAR.

Assuming not binding, highly persuasive (binding in mainland law, but in HK law)
- [69]: A subject matter lying at the interface must conform with the Basic Law under
each of the Mainland and Hong Kong systems… When the Standing Committee has
by way of a decision confirmed that an arrangement conforms with the Basic Law, its
decision as a matter of the Mainland law is final.
- [70]: even if lower courts differ from NPCSC interpretation, CFA would follow those
interpretation
- Do not approach NPCSC decision as merely post-enactment extrinsic materials as it
goes far beyond than just shedding light on context and purpose for construing BL

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 - Need to justify NPCSC decision as not in the common law tradition to admit extrinsic
materials as constitution

SECTION B

Preparation required

In this second part of the tutorial, we will explore issues of interpretation of the Basic Law
and constitutional jurisdiction of the Hong Kong courts.

Please read the first “oath-taking case” of Chief Executive of the HKSAR v President of the
Legislative Council and Leung Chung Hang (HCAL 185/2016, 15 Nov 2016; CACV
224/2016, 30 Nov 2016; FAMV 7/2017, 25 Aug 2017), Ng Ka Ling v Director of Immigration
(1999) 2 HKCFAR 4 (No. 1), Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 141
(No. 2) and HKSAR v Lai Chee Ying [2021] HKCFA 3, which are included in the materials on
the topic of “Autonomy and Central-SAR Relationship”. In the course of your reading, try to
identify and study more intensively those passages in the readings which relate directly to the
questions below.

Questions for discussion

1. When the litigants in the first “oath-taking case” of Chief Executive of the HKSAR v
President of the Legislative Council and Leung Chung Hang (HCAL 185/2016, 15
Nov 2016; CACV 224/2016, 30 Nov 2016; FAMV 7/2017, 25 Aug 2017) applied for
leave to appeal to the CFA, what were the parties’ arguments, and how did the CFA
deal with them?

Leung Yau in CFI

- invoked the non-intervention principle (came about in 2014 Leung Kwok Hung
case: the courts cannot intervene LegCo’s decision when LKH filibuster) 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.

- Third, they contended that section 21 of Cap 11 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.

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 - 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.

Present grounds of Leung Yau:

(1) the issue of the applicability of the non-intervention principle: LegCo president has
decided to let them retake the oath, not for the courts to interfere that decision

Leung and Yau : 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

If non-intervention does not apply, Yau: decision by President of Legco

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.

(2) the proper construction of section 21 of Cap 11,

Leung and Yau: section 21 of Cap 11 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

Leung: “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”

(3) the ambit and effect of the Interpretation.

Leung: Interpretation amounts to an ‘amendment’ of BL without complying with

procedure under BL159, and it goes beyond art 104 and is therefore not binding

Yau: interpretation is made under local law but not under BL 158, date of
commencement is the date of promulgtion

(additional question by Yau: under LegCo Ordinance (Cap 542).whether disqualification

for declining or neglecting to take the Lego oath is automatic.)

CFA:

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 1. 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

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.

the principle of non-intervention is necessarily subject to constitutional

requirements: one may identify facts that the court must recognize
whether a law is valid under the facts

BL104 imposes a constitutional requirement on a member of Legco

validly to take the Legco oath. (clear from BL104 and reinforced by
interpretation)=> courts are duty bound to consider whether Leung and
Yau took the LegCo Oath

2. section 21 of Cap 11 is NOT excluded by the existence of

other circumstances and procedures by which a member of
Legco can be disqualified from office.

In the present case, a member has been incontrovertibly found by a court

to have declined or neglected to take the Legco oath, there is no
discretion or judgment to be exercised by the President of Legco. =>
consistent with BL104[28]

s21 implied that the requirement to take the Legco oath is a requirement
to take that oath in an objectively solemn manner. (by the wording of the
oath, 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) )

3. 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
 art 158=> 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 HKSAR, and includes legislative
interpretation which can clarify or supplement laws

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 2. To what extent did the Court of Final Appeal (CFA) modify the position it originally
adopted in Ng Ka Ling when it made the “clarification” in Ng Ka Ling v Director of
Immigration (No. 2)?

CFA ‘s original position (reflection of division of powers at that time: western

interpretation, check and balances of the powers)
- the courts of the HKSAR had a duty to enforce and interpret the Basic Law: can
examine whether legislation is valid or not
- Courts have the power to examine whether NPC and NPCSC’s legislative acts are
consistent with BL
- Court's jurisdiction to enforce and interpret the Basic Law is derived from and is
subject to the provisions of the Basic Law which provisions include the foregoing.
(trouble: HK courts can review NPC’s act, but the lines of thinking of the courts and CPG
are different: CPG is thinking about political hierarchy, Courts are thinking about: liberal
constitutionalism: to review whether law is in accordance of BL)
CFA clarification:
- The courts' judicial power is derived from the Basic Law. Article 158(1) vests the
power of interpretation of the Basic Law in the Standing Committee.
- The courts' jurisdiction to interpret the Basic Law in adjudicating cases is derived by
authorisation from the Standing Committee under arts. 158(2) and 158(3).
- The Court accepts that it cannot question NPCSC’s decisions or interpretation/ NPC’s
decision when they are in accordance with BL (stated in the negative, but does not
state whether decisions NOT in accordance with BL)

3. In the light of the Court of Final Appeal’s decision in HKSAR v Lai Chee Ying [2021]
HKCFA 3, discuss whether or to what extent the HKSAR National Security Law is
subject to constitutional review by a HKSAR court as regards its compatibility with
the Basic Law.

NSL are not subject to review on the basis of any alleged incompatibility as between the
NSL and the Basic Law or the ICCPR as applied to Hong Kong. [37]

Court has no power to hold any provision of the NSL to be unconstitutional or invalid as
incompatible with the Basic Law and Bill of Rights. (NSL compatible with those rights)
Not to say human rights incompatible but in accordance with human rights under definition of
NSL

NPCSC duly decided to add the NSL to the list of laws in Annex III of the Basic Law to be
applied locally by way of promulgation by the HKSAR.

Lai Chee Ying:

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 - “NSL is subject to and cannot override BL or ICCPR: it is untenable that the Hong
Kong Courts, entrusted with the upholding of BL, cannot deal with its compatibility
with those documents, and therefore its constitutionality.”
NSL 42(2) derogates from constitutionally protected rights, including the right to bail and the
right to personal liberty (NSL42((2): no bail shall be granted unless the judge has sufficient
grounds for believing that the accused “will not” continue to commit acts endangering
national security”

CFA: NSL 42(2) creates a specific exception to the HKSAR rules and principles governing the grant and refusal of
bail, and imports an stringent threshold requirement for bail applications
- NSL 4 and NSL 5, reflecting presentations to the NPC and NPCSC set out above, which emphasise
protection and respect for human rights and adherence to rule of law values while safeguarding national
security (important for the interpretation of NSL42(2))
- The general scheme applicable in the HKSAR does not give an unqualified right to bail.
- CPO vs NSL
1. CPO is for risk for committing an offence while on bail; NSL focuses on risk of ‘acts
endangered by national security’
2. Starting point of the inquiry of bail is different for CPO and NSL: CPO 9G(1), bail may be
refused if it appears to the court that there are substantial grounds for believing that the
accused person would fail to surrender to custody, commit an offence while on bail or interfere
with witnesses or pervert or obstruct the course of justice. (presumption in favour of bail,
burden of proof not on defendant; NSL’s starting point: no bail)
3. risk that the accused will “continue” to “commit acts endangering national security” if granted
bail [continuing does not treat D as guilty but mean continuing the alleged act of offence, acts=
act endangering national security]

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