UNIVERSITY OF HONG KONG
DEPARTMENT OF LAW
Constitutional Law (LLB) (2024-2025)
TUTORIAL WORKSHEET 3
This Worksheet consists of Sections A and B.
SECTION A
Preparation required
In this part of the tutorial, we will continue to explore issues of
interpretation of the Basic Law and constitutional jurisdiction of the Hong
Kong courts – issues which we started to explore in Section B of Tutorial
Worksheet 2.
Please read the relevant materials on the topics of “Autonomy and
Central-SAR Relationship” and “Constitutional Interpretation and
Jurisdiction”. 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. Construct a timeline of the Hong Kong courts’ positions on
whether they have powers to review NPC and NPCSC acts for
compatibility with the Basic Law and to disapply those that they
consider to be incompatible with the Basic Law.
2. What is the “arguability test” for seeking an interpretation of the
Basic Law from the NPCSC?
3. What is the “predominant test” for seeking an interpretation of the
Basic Law from the NPCSC? What is the court’s rationale for
developing this test? Should the CFA continue to adopt this test in
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determining whether to seek an interpretation of the Basic Law
from the NPCSC?
SECTION B
Preparation required
In this part of the tutorial, we will study the political system of the
HKSAR. Please read the relevant parts of the reading materials (on
Moodle) for Topic 4 (the political system). 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
Question 1
In Cheng Kar Shun v Li Fung Ying [2009] 4 HKC 204 (Reading 4(2)(2)),
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.”
The above principle has also been applied in the case of Leung Kwok
Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR
689 (Reading 4(2)(3)). Explain the rationale behind this principle.
Is there any inconsistency between this principle and the court’s decision
in 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)
(Reading 3(5)(2))?
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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
HKSAR. ...”
Do you agree with Mr Zhang’s views on the political system of the Hong
Kong Special Administrative Region? To what extent are the cases of Yau
Kwong Man v Secretary for Security, HCAL 1595/2001 (Reading 4(3)),
and Leung Kwok Hung v President of Legislative Council [2007] 1
HKLRD 387 (Reading 4(2)(1)) 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?
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Question 3
Article 48(4) of the Basic Law empowers the Chief Executive “to issue
executive orders”. In the light of the courts’ decisions in Association of
Expatriate Civil Servants of Hong Kong v Chief Executive [1998] 1
HKLRD 615 (Reading 4(4)(a)) and Leung Kwok Hung v Chief Executive,
HCAL 107/2005 (Reading 4(4)(b)), explain the scope of this power and
its limits.
Question 4
In the case of Kwok Wing-hang v Chief Executive in Council [2019]
HKCFI 2820 (CFI), [2020] HKCA 192 (CA), [2020] HKCFA 42
(Reading 4(5)), 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”.]
