Date
22 April 2019
Petitioners Leung Kwok-hung and Kwok Cheuk-kin (inset, second and third from left) with their supporters after the High Court ruled on their petition for a judicial review of the co-location arrangement for the Express Rail Link. Photo: HKEJ
Petitioners Leung Kwok-hung and Kwok Cheuk-kin (inset, second and third from left) with their supporters after the High Court ruled on their petition for a judicial review of the co-location arrangement for the Express Rail Link. Photo: HKEJ

High Court rules co-location scheme consistent with Basic Law

The High Court has ruled that the co-location arrangement for the Guangzhou-Shenzhen-Hong Kong Express Rail Link is consistent with the Basic Law. 

The co-location bill, which was passed on third reading in the Legislative Council on June 14 and took effect on Sept. 4, provides for the operation of customs, immigration and quarantine facilities of Hong Kong and mainland China at the West Kowloon terminus of the Express Rail Link. 

Those opposing the bill had insisted that the co-location arrangement violates the Basic Law, Hong Kong’s mini-constitution, as it is tantamount to ceding Hong Kong territory to China.

Five people had applied for a judicial review with the aim of having the bill nullified, including ousted lawmakers Leung Kwok-hung and Sixtus “Baggio” Leung Chung-hang, “King of Judicial Reviews” Kwok Cheuk-kin, social worker Hendrick Lui Chi-hang, and Zlato Ku Chun-hin from the Neo Democrats, who withdrew his application after the hearing began in late October. 

In his 67-page ruling announced on Thursday, Justice Anderson Chow Ka-ming of the Court of First Instance said approval of the co-location arrangement by the National People’s Congress Standing Committee (NPCSC) last year was the same as law interpretation and binding on Hong Kong courts, which therefore have no right to overturn it, the Hong Kong Economic Journal reports. 

In December last year, the NPCSC said in a resolution that the arrangement will be in compliance with the Chinese constitution as well as Hong Kong’s Basic Law, stressing there is no contravention of Article 18 of the Basic Law, which states that national laws shall not be applied in Hong Kong. 

Chow agreed with the petitioners that the Chinese constitution should not be directly cited by a Hong Kong court, but he said that does not mean a court can ignore it or render it irrelevant when giving a ruling. 

Chow said he accepted the expert evidence of Wang Lei of the Faculty of Law of Peking University, agreeing that the NPCSC has the power assigned by Article 67 (1) to supervise the enforcement of the constitution and the Basic Law, and as such, the NPCSC has the power to supervise and interpret laws and can approve the decision of passing the co-location arrangement. 

While the concept of co-location was not included when the Basic Law was drafted, the Hong Kong charter should advance with the times based on new developments in the social, economic and political fields, otherwise it can never be a “living instrument”, Chow said. 

He also made it clear that although he found the co-location arrangement constitutional, that does not mean it can be applied in other places in Hong Kong than the mainland port of the West Kowloon terminus, which opened on Sept. 23. 

Saying that the applications for a judicial review were for major public interest rather than personal benefits, Chow decided to waive all of the applicants’ legal costs. 

Leung Kwok-hung said he will appeal the High Court’s ruling. Sixtus Leung, who did not show up in court on Thursday, said he also plans to do so, although he cannot make a final decision until after he has studied the ruling and consulted his lawyers.

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TL/JC/CG

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