2017-12-28

【立場新聞】大律師公會候選「戴啟思名單」:【全文】「戴啟思名單」 回應人大常委一地兩檢決定:unconvincing and unsatisfactory (1102)


【文:大律師公會候選「戴啟思名單」】

PHILIP DYKES' LIST - POSITION ON CO-LOCATION ARRANGEMENT(相關報道連結按此

1. The Hong Kong government took over 7 years since 2010 to study and discuss with Mainland authorities on the customs, immigration and quarantine arrangements for the High Speed Rail. We are disappointed that after 7 years of study, there is still no satisfactory explanation of the legal basis for the current arrangement. The explanation of the NPCSC today on the legal basis is unconvincing and unsatisfactory.

2. On 25 July 2017, the Government proposed the “co-location arrangement” whereby the laws and jurisdiction of the Mainland would apply to two areas of Hong Kong, an area in the West Kowloon Station and the train compartments of the High Speed Rail. The majority of Hong Kong laws will be replaced by Mainland laws, including Mainland criminal law, in those areas.

3. By way of illustration, it is a criminal offence of undermining public order (尋釁滋事罪) in Mainland China which can be sentenced to not more than five years of fixed-term imprisonment, criminal detention or control (Section 293 of the Criminal Law of the People’s Republic of China). There is no comparable criminal sanction in Hong Kong and the introduction of Mainland Criminal Law worries the public about whether the oppositions in Hong Kong will face a similar threat of criminal punishment to demonstrate in the West Kowloon Station. Similarly, if someone commits a criminal offence at the Mainland Port in the West Kowloon Station, they are subject to be tried and punished by Mainland law, and not Hong Kong law. Hong Kong police has no enforcement power, and Hong Kong courts have no jurisdiction over that part of West Kowloon.

4. If the co-location arrangement is to be implemented in Hong Kong, it must comply with the Basic Law, which is not only the mini-constitution of Hong Kong but also a piece of national law.

5. According to Article 18 of the Basic Law, the laws of Hong Kong shall be the Basic Law, the laws in force in Hong Kong before the handover in 1997 and the laws enacted by Legco laws shall apply to the whole HKSAR. It expressly mandates that no national laws shall be applied in the HKSAR except by inclusion in Annex III which “shall be confined to those relating to defence and foreign affairs and other matters outside the limits of the autonomy of the HKSAR. The effect of Article 18 is very clear: the laws that apply to Hong Kong is Hong Kong law. National laws shall not apply to Hong Kong, save those included in Annex III. There is no justification to say that Article 18 allows Mainland laws to apply to Hong Kong if they only applied to a certain part of the HKSAR.

6. Also according to the provisions of the Basic Law, the HKSAR is vested with independent judicial power, including that of final adjudication, and the courts of the HKSAR have jurisdiction over all cases in the HKSAR (Article 19(1) and (2) of the Basic Law). Taking away the jurisdiction of HKSAR courts from a part of Hong Kong will certainly be a breach of Article 19.

7. Article 22 expressly provides that no department of the Central People’s Government or province/autonomous region/municipality may interfere with the affairs of Hong Kong. Even if Mainland departments set up offices in Hong Kong with the consent of the HKSAR Government, the Mainland officials must abide by the laws of Hong Kong.

8. Articles 2, 7, 118 and 119 of the Basic Law were cited by the NPCSC in the explanation notes to provide the legal basis for compliance of the co-location arrangement with the Basic Law. Articles 2 and 7 are general provisions that the HKSAR is to exercise a high degree of autonomy and the HK Government to manage land resources which are state properties. Articles 118 and 119 are under Chapter V of the Basic Law which provide that the HKSAR Government shall provide environment and formulate policies for promoting and encouraging economic activities.

9. It is obvious that such articles do not provide the basis for Basic Law to be disapplied in certain parts of Hong Kong as the co-location arrangement so proposes. Such general articles cannot have the effect of overriding the specific and clear provisions, e.g. articles 18, 19 and 22. Such reading of the Basic Law would be stripping different articles out of context and do violence to the solemnity of the Basic Law which should operate to safeguard the principle of “one country two systems” in Hong Kong.

10. Further, the exercise of high degree of autonomy is a mandatory requirement of the Hong Kong government under the Basic Law. The Hong Kong government would have abrogated its constitutional duties by surrendering a part of Hong Kong such that the Basic Law and most Hong Kong laws do not apply.

11. Likewise, the Hong Kong courts which are bound to exercise its independent judicial power over all cases within the HKSAR pursuant to Article 19 would be stripped off of their constitutional functions by such violent construction of the Basic Law.

12. In fact, according to the Hong Kong government’s papers to Legco, it agrees that the co-location arrangement (without obtaining additional powers under Article 20) would contravene various provisions of the Basic Law, in particular, Article 18, and it is not appropriate to adopt national laws to only a particular area of Hong Kong. It is clear that applying the national laws, including Mainland Criminal Law directly in Hong Kong will be a breach of Article 18.

13. There must be objective legal basis for the co-location arrangement. The Hong Kong government in its paper to Legco proposed to acquire additional powers by virtue of Article 20. However, even the NPCSC do not consider it appropriate to “legalize” the co-location arrangement by granting additional powers to HKSAR by virtue of Article 20.

14. We must point out that the Basic Law, being promulgated by the NPC, is a piece of national law and should be complied with, not only by the Hong Kong government, but also by all state departments. The current co-location arrangement is in direct contravention of the Basic Law and if implemented would substantially damage the rule of law in Hong Kong. It would undoubtedly undermine confidence of the public, in particular, of investors whether local, national or international, in the state and Hong Kong government’s willingness to uphold the rule of law which is essential to protect the economic environment of Hong Kong.

15. We do not oppose the introduction of High Speed Rail. What we say is that this has to be done in accordance with the Basic Law. This is the basic requirement of the rule of law. The meaning of the Basic Law has to be ascertained objectively. The effect of Articles 18, 19 and 22 are clear: national laws shall not apply to any part of Hong Kong (save through Annex III), and any Mainland organization or personnel in Hong Kong is subject to Hong Kong law. The rule of law will be threatened and undermined if the clear meaning of the Basic Law can be twisted and the provisions of the Basic Law can be interpreted according to expediency and convenience.

 

27 December 2017

Philip Dykes SC
Lawrence Lok SC
Johannes Chan SC (Hon)
Erik Shum
Joe Chan
Randy Shek

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