UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW

Constitutional Law (LLB) (2022-2023)

TUTORIAL WORKSHEET 3

Preparation required

In this tutorial, we will study the political system of the HKSAR,

particularly the nature of this system and how it operates. Please read the
relevant materials on this topic. 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. Where court cases

are discussed, please also be prepared to discuss the material facts of the
cases, the legal issues raised by them, and the reasoning of the court in
reaching the decision on the legal issues.

Question 1

To what extent is the case of Leung Kwok Hung v President of Legislative

Council [2007] 1 HKLRD 387 relevant to the debate about whether the
HKSAR system of government is or ought to be “executive-led”? Is it
correct to describe the political system of the HKSAR as a system of
“executive-led” government?

Constitutional Challenge against the relevant rule of the rules of

procedure which precludes legco members to propose a private members
bill which affect public expenditure.

Leung Kwok Hung (BL 74) ¶67, Hartmann J

Lai Hung Wai ¶38 Hartmann J

1
Luk Ka Cheung ¶29

Leung Kwok Hung Filibusting para 27, Lau Cheong para 101

BL 49-52, 73(9), 2, 90

Anti-mask CA ¶¶91-101

Can the two co-exist?

Question 2

Mr Zhao Xiaoming, then Director of the Liaison Office of the Central

People's Government in Hong Kong, gave a speech on “Understand the
Features of Hong Kong Political System Correctly” at a symposium held
on 12 September 2015 to mark the 25th anniversary of the making of the
Basic Law of the HKSAR. He said (in translation):

“... Hong Kong does not have a political system with separation of three
powers. ... One should not simplistically believe that so long as executive,
legislative and judicial organs are separately established and there exist
checks and balances among them, then a political system practising
separation of three powers exists. ...

Given the nature and features of this regional political system, and given
the existence of the central authority’s power besides those of the
executive, legislature and judiciary of the HKSAR, the political system of
the usual separation of powers among three branches, which is often
established on the basis of a full mode of power of a sovereign state, is at
most only of referencing and consulting value to the HKSAR, but not
completely applicable to the HKSAR. ...

Because of his status as ‘Dual-Heads’ and his ‘Dual- Responsibilities’,

the Chief Executive has a special legal status that transcends the
executive, legislature and judiciary. The Chief Executive lies at the heart
of the operation of powers of the HKSAR, and serves the function of a
nexus below the Central Government and above the three powers of the
2
HKSAR. ...”

Why did Mr Zhang have reservations about the application to the

HKSAR of the doctrine of “separation of powers”? Do you agree with Mr
Zhang’s views on the political system of the HKSAR?

Ji Pengfei’ speech in 1990 Instrument 6, p.7 independent judicial power

p. 12 checks and balances.

Chong Fung Yuen para 6.3: pre-enactment materials will be used as an

aid to construe the meaning of the BL

Question 3

In the case of Kwok Wing-hang v Chief Executive in Council [2019]

HKCFI 2820 (CFI), [2020] HKCA 192 (CA), [2020] HKCFA 42, the
Court of First Instance (CFI) held that the Emergency Regulations
Ordinance (ERO) was at least partially unconstitutional. On appeal to the
Court of Appeal (CA), the ruling of the CFI on this point was reversed,
and the CA affirmed the constitutionality of the ERO. The CA’s decision
on this point was upheld on appeal to the Court of Final Appeal (CFA).

Why was there a difference in opinion between the CFI (on the one hand)
and the CA and CFA (on the other hand) regarding the constitutionality
of the ERO? Which opinion do you think is more persuasive?

[Note: For the purpose of this question, you need not consider or discuss
the legal issues concerning whether the Prohibition on Face Covering
Regulation or any part thereof is invalid because it imposes excessive
restrictions on rights and fails to satisfy the “proportionality test”.]

CFI para 97

Rejected the theme of continuality CFI paras 88-93

CFA paras 29-30

3
CFA paras 37-75

Question 4

Why did the challenge to the constitutionality of functional constituencies

fail in the Lee Miu Ling case in 1995? If a similar challenge had been
brought after 1997, would there be any prospect of success?

It was the case that some people could vote in geographical

constituencies only whilst some people could vote in both functional and
geographical constituencies. The challenge was based on equality.

The CA rejected the argument on constitutionality because it’s expressly

provided at Article VII(3) that some HK citizens would get an additional
vote on top of the geographical constituency vote.

The CA further rejected the argument on equality because there’s a

justification of the different size of functional constituencies in a small
functional constituencies like Heung Yee Kuk as compared with a large
constituencies like professionals functional constituencies.

See Fok Chun Wa CFA ¶75, ICCPR reservation and BL 68, universal
suffrage in a gradual and orderly progress

Question 5

Explain the constitutional or legal issues raised by the Chan Yu Nam case,
the arguments of both sides on these issues, and the reasoning of the
Court of Appeal in reaching its decision in this case. Do you agree with
the court’s decision?

Constitutional Challenge against Corporate Voting in functional

constituencies

Chan Yu Nam CA ¶¶7-8, 23-25

4
The CA puts emphasis on the theme of continuity and look at the pre-
1997 election methods and post 1997 until the year of the hearing (i.e.
2010), the reservation of universal suffrage at ICCPR, BL 45 and 68,
Annex II of the BL which expressly mentioned the corporate bodies.

Question 6

In Cheng Kar Shun v Li Fung Ying [2009] 4 HKC 204, Cheung J (as he
then was) said (at para. 220 of his judgment):

“ ... the courts of the Hong Kong Special Administrative Region do not,
as a rule, interfere with the internal working of the legislature.
Exceptionally, where questions of whether the Legislative Council, in
going about its business, has acted in contravention of the provisions of
the Basic Law arise, the courts do have jurisdiction to intervene. But the
jurisdiction must be exercised with great restraint, having regard to the
different constitutional roles assigned under the Basic Law to different
arms of the government.”

Explain the rationale behind the legal principle stated above, and discuss
how it has been applied in the case law of the HKSAR.

Written constitution is supreme

Yau Wai Ching ¶¶paras 21-22

Leung Kwok Hung Filibusting para 27

The Court was prepared to intervene if it is in contravention of BL (Yau

Leung, Kwok Cheuk Kin (Committee of Whole Council Quorum) paras
41-56

Question 7

How has the case of Leung Kwok Hung v President of the Legislative
Council (No 1) (2014) 17 HKCFAR 689 delineated the constitutional

5
relationship between the courts and the legislature of Hong Kong? Is
there any inconsistency between this Leung Kwok Hung case and the
“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)?

Question 8

What, according to the Court of First Instance’s decision in Chan Ho Tin

v Lo Ying-ki Alan [2018] HKCFI 345, is the legal basis for a returning
officer’s power to disqualify a candidate in a LegCo election? Is the
ruling in this case relevant to LegCo elections held in the future?

Chan Ho Tin para 100 declaration is a substantive requirement

Disqualifying Chow Ting and Lau Siu Lai and other intended legco
candidates

In Lau Siu Lai, the appeal committee of the CFA implicitly agreed that
the Declaration requirement is a substantive requirement. The Court has
to decide the question of whether the intended candidate genuinely and
truly intended to uphold the Basic Law and pledge allegiance to the
HKSAR (para 15).

Question 9

What are the possible advantages and disadvantages of the electoral

reform in the HKSAR introduced by the NPCSC’s amendment of
Annexes I and II to the Basic Law in 2021?

October 2022

6
7