CITY UNIVERSITY OF HONG KONG

Introduction

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Basic Law

General Discussion

Refer to Elliott & Quinn Tort Law 7th Edition Chapter 1

Refer to Richards Law of Contract 9th Edition Chapter 1

Chinese Constitution (the 1982 Edition)

Article 31 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 Peoples Congress in the light of specific conditions.

Role of the Basic Law of Hong Kong

Contents: Articles 1 to the end
Annex I II and III, contents and importance
Ordinances assigned to them

Contents

Decree of the President of the People's Republic of China

The Basic Law of the Hong Kong Special Administrative Region of the People's
Republic of China

Preamble
Chapter I:
General Principles(Art 1-11)

Chapter II:
Relationship between the Central Authorities and the HKSAR(Art 12-23)
Chapter III:
Fundamental Rights and Duties of the Residents(Art 24-42)
Chapter IV:
Political Structure
Section 1:The Chief Executive; Section 2:The Executive Authorities; Section 3: The
Legislature; Section 4:The Judiciary; Section 5: District Organizations; Section 6: Public
Servants (Art 43-104)

Chapter V:
Economy
Section 1: Public Finance, Monetary Affairs, Trade, Industry and Commerce; Section 2:
Land Leases; Section 3: Shipping; Section 4: Civil Aviation; (Art 105-135)

Chapter VI: Education, Science, Culture, Sports, Religion, Labour and Social
Services(Art 136-149)

Chapter VII:
External Affairs(Art 150-157)

Chapter VIII:
Interpretation and Amendment of the Basic Law(Art 158 & 159)

Chapter IX:
Supplementary Provisions(Art 160)

Annex I:
Method for the Selection of the Chief Executive of the HKSAR
Annex II:
Method for the Formation of the Legislative Council of the HKSAR and Its Voting
Procedures
Annex III:
National Laws to be Applied in the HKSAR

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Sovereign
Hong Kong Letters Patent 1917 to 1995
Art 45 Checks and balances
Art 19(2) Hong Kong courts do not apply cases in China
Art 45, 68 Annexes I and II - Political reform

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Definition of Constitution

A constitution means a document having a special legal sanctity which sets out the
framework and the principal functions of the organs of government within the state, and
declares the principles by which those organs must operate. (from Bradley and Ewing,
Constitutional and Administrative Law, 12th edition)

Four Characteristics of the Constitution

HSFE : Highest, Supreme, Fundamental, Entrenched

Three Functions of the Basic Law

SAM Test = Sovereignty, Autonomy, Maintenance of Existing System

Hierarchy of Laws in China

1. Constitution
2. National Law = Basic Law
3. Administrative Regulations
4. Provincial Legislation = Local Law = HK Ordinances
5. Departmental Byelaws

Important Articles in the Basic Law

Art 2 executive, legislative, judicial
Art 8 the laws previously in force.common law, rule of equity, ordinances, sub
legislation, custom law.
Art 18 National laws, NPCSC has power to add or delete
Art 158 Interpret and Amend Basic Law
Art 18(3) NPCSC must consult BLC whether to add or delete the BL Annex.

Checks & Balances

Art 52 CE must resign
Art 50 CE can dissolve the LegCo
Art 79 (9) LegCo can impeach the CE
Art 48 (11) CE has to testify in court
Art 73(10) LegCo can summon persons
Art 88 Appointment of judges
Art 89 Removal of judges

Doctrine of Separation of Powers

There are three powers in a government: legislative, executive and judicial powers

Legislative Power: Legislative Council

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Executive Power: Chief Executive, Executive Council, Various Governmental Bureaus,
and Departments, Civil Service
Judicial Power: Judiciary

There exist checks and balances between them.

This principle is not written expressly in the Basic Law. But both scholars and our
judiciary, especially the Court of Final Appeal in several judgments, have said that the
doctrine of separation of powers is a constitutional principle in Hong Kong.

Judicial Independence

This is of fundamental importance to most legal system. Some scholars have expressed
the view that it is an essential element of rule of law principle. In most jurisdictions,
judicial power is the only one completely independent from other two powers of a
government.

HK Courts Jurisdiction
Article 19: HK courts have no jurisdiction over acts of state
The courts of HKSAR shall have no jurisdiction over acts of state such as defence and
foreign affairs.
Clause 4 of the CFA Ordinance, the Court shall obtain a certificate from the Governor on
questions of fact concerning acts of state.
The Courts of the Region shall obtain a certificate from the Chief Executive on questions
of fact concerning acts of state such as defence and foreign affairs whenever such
questions arise in the adjudication of cases
This certificate shall be binding on courts
Before issuing such a certificate the CE shall obtain a certifying document from the CPG
It is the CPG and not the Chief Executive which has the final say about what constitutes
an Act of State
The certificate shall only concern the FACTS and not interpretation of LAW
What constitutes an Act of state will be a matter of judicial interpretation.
The words such as defence and foreign affairs remains unexplained and is capable of
wide interpretation by China

Cheung Tze-keung case

Art 95 principle of judicial assistance,
Art 153 applicability of international agreements (interpol)

The Most Convenient Venue Criteria:

1. The act is a crime in both;

2. In joint offence, the principal and the secondary offenders be tried in the same
jurisdiction;
3. Major damage place prevails;
4. Political offences will not be transferred for try; and

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 5. Transfer for the benefit of rehabilitation of the offenders.

Mainland and HK can reach an agreement on a rendition arrangement:

An offence in both jurisdictions;
Exemption of death penalty;
Transferring political or economic offenders.

Telford Garden Case:

PRC citizen Lee Yuk Fai; fled to China after murdering five females. Because of the
Mainland Law, after fleeing to China, he could be arrested there.

Role of the Hong Kong Court

Final power of interpretation of Basic Law is with NPCSC but the power to interpret
local laws is vested in HK courts (Art 158(3)). Thus HK judges can interpret The Bill of
Rights Ordinance (BORO) by the common law tradition. The effectiveness of BORO lies
with HK judges.
If a part of BORO concerns the central authority of PRC the HK courts can still make
final judgments as in Ng Ka Ling case
Subsequent different interpretation by NPCSC will not affect the final judgment as the
Interpretation of NPCSC has no retrospective effect.

Nationality and Right of Abode

Interpretation power of NPCSC : Lau Kong Yung, 1999
At the time of birth requirement: Chong Fung Yuen 2000
Rights of adopted children: Tam Nga Yin 1999
An infant case : Cham Kam Ng 1998
Judgments previously rendered shall not be affected: Ng Siu Tung 2000
Imprisonment amounting to breaking continuity of ordinary residence Fateh Mohammad
2001
Ng Ka Ling 1998

What has been controversial is the jurisdiction of the courts of the Region to examine
whether any legislative acts of the NPC or SC are consistent with the Basic Law and to
declare them to be invalid if found to be inconsistent. In our view, the courts of the
Region do have this jurisdiction and indeed the duty to declare invalidity if inconsistency
is found. It is right that we should take this opportunity of stating so unequivocally.

Thus there is no limitation on the power of the lower courts to interpret all the provisions
of the BL. The only limitation is on the jurisdiction of the CFA. The language of Article
158(2) emphasizes the power of all courts of the Region to interpret on their own
provisions which are within the limits of the Regions autonomy.

In our view, the retrospective provision is unconstitutional.

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Interpretation
Comparing with its attitude in Lau Kong Yung and Ng Ka Ling, in Ng Siu Tung, the
court has apparently taken a moderate position on the sensitive issue of the enforceability
and the binding force of the NPCSC Interpretation. It did not maintain the controversial
stand which it took in Ng Ka Ling that the Court of Final Appeal has the power to declare
the acts of the NPCSC to be against the Basic Law and, to declare them to be void. Nor
has it stayed at the other extreme as in Lau Kong Yung where it took the position that the
NPCSC has so much power that they can interpret the Basic Law at any time and the
power of the NPCSC is unqualified and unlimited.

In Ng Siu Tung, the court tried to stick to ordinary common law principles, namely, the
very fundamental doctrine in administrative law, legitimate expectation and the principle
that the NPCSC interpretation has no retrospective effect upon judgments previously
rendered as promised by the BL Art 158 (3).

This is a good judgment and as seen by many, the CFA started to find equilibrium to
handle cases which fall within its jurisdiction of autonomy and which fall in between the
power division of central-local relations. It is believed that as more cases come by, the
CFA will make better and better judgments in this regard.

Discussion topics:

How far is the BL used as a check and balance?

What is the source of Basic Law?
From where it derives its legitimacy?
You think the national laws of PRC should be applicable to Hong Kong?
Under what circumstances?
On what grounds?

Dr Eric Cheng
City University of Hong Kong;
5 January 2015