Eric Ip Comments on the Hong Kong Highspeed Railway Station Judicial Review Decision (Public Law)

"Hong Kong - Mainland Chinese Enclave in Highspeed Railway Station held Constitutional, Leung Chung Hang Sixtus v President of the Legislative Council [2019] 1 HKLRD 292" 

Eric Ip

Public Law

First Published 2019

Abstract: A parcel of land in the heart of the Hong Kong Special Administrative Region has been ceded to mainland China in all but name under the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (Cap.632), becoming the first mainland enclave, known as the "Mainland Port Area," inside Hong Kong in which the full force of socialist criminal and national security law will apply to the exclusion of the Special Administrative Region's common law system for all practical purposes. This Case Comment focuses on the Court of First Instance's judgment in Leung Chung Hang Sixtus v President of the Legislative Council [2019] 1 HKLRD 292 that the Ordinance and the Mainland Port Area it set up are constitutional. This Comment exposes several logical shortcomings in the judgment, including its argument from silence that the Basic Law does not intend to prohibit the Mainland Port Area, which can equally be used to argue that the Basic Law does not intend to allow the same. It gives due credit to the Court in upholding a common law approach in constitutional and statutory interpretation. And it argues that, paradoxically, in reviewing the Mainland Port Area's constitutionality, the Court has tacitly affirmed that the Hong Kong Judiciary necessarily retains a kind of constitutional jurisdiction over the Area that had not been ousted by the Ordinance.

Po Jen Yap & Jiang Zixin on "Co-location is Constitutional" (HKLJ)

"Co-location is Constitutional"

Po Jen Yap and Jiang Zixin (JD 2018)

Hong Kong Law Journal 

2018, Vol. 48, Part 1, pp. 37-50

Abstract: In this comment, we argue that the co-location arrangement proposed by the Hong Kong Special Administrative Region Government is consistent with the Basic Law. Co-location does not engage art 18 of the Basic Law because, for the purpose of art 18, the land comprising the Mainland Port Area (MPA) would no longer be in Hong Kong. This is the legal consequence of the Government’s exercise of its power under art 7 of the Basic Law to relinquish legal control over land. Specifically, the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA in favour of the PRC authorities for customs, immigration and quarantine procedures as (1) co-location is derivative of, and in service to, the Government’s power under art 7 of the Basic Law to lease land; (2) the Government’s aim of achieving efficient high-speed rail interconnectivity between Hong Kong and Mainland China is legitimate; (3) co-location is reasonably adapted to the attainment of this legitimate aim; and (4) co-location does not violate fundamental rights enjoyed by residents living in Hong Kong. Since the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA for co-location, the provisions that deem the MPA outside Hong Kong are constitutional, and therefore, the land comprising the MPA would not be in Hong Kong for the purpose of art 18.

Richard Cullen Comments on High Speed Rail Co-Location Arrangements in Hong Kong (China Daily)

"Opponents of co-location ignore 'living law' model"
Richard Cullen
China Daily
2 Feb 2018

The intense debate over co-location of Hong Kong and Chinese mainland immigration and customs controls at the Guangzhou-Shenzhen-Hong Kong Express Rail Link's West Kowloon terminus shows no sign of slackening off. Supporters rely significantly on the National People's Congress Standing Committee's statement on co-location's legal validity, made in December last year. This perspective stresses the sovereign authority of the NPCSC within the "one country, two systems" political-legal hierarchy governing the status of the Hong Kong Special Administrative Region within the People's Republic of China. ...

    Almost 20 years ago, Hong Kong's Court of Final Appeal laid down a set of primary principles designed to shape the interpretation of the Basic Law of the HKSAR. In a pivotal right of abode case, Chief Justice Andrew Li Kwok-nang stipulated that, with a constitutional document such as the Basic Law, a purposive approach is needed as gaps and ambiguities are bound to arise in such an instrument given its necessary generality. He also cautioned against using a technical, narrow or rigid approach when considering the language of the Basic Law. The chief justice did not rely directly on the living constitution theory in this seminal exposition but these CFA formulations are in harmony with that theory. ...

     Those arguments which say co-location has yet to be shown to be permitted by the Basic Law rely, above all, on a lack of explained particular authority in the Basic Law for co-location (a previously unforeseen need) and the Basic Law protections against the general application of mainland law in the HKSAR. These arguments are serious but they are, when viewed within a living constitution context (coupled with the cautionary words from the Court of Final Appeal), narrow and quite technical. Had similar arguments prevailed (and they were made) in Australia a century ago this would have conspicuously restrained the country's development and adaptation to a constantly changing world... Click here to read the full article.

Albert Chen's Legal Analysis of Hong Kong's Joint Checkpoint Co-Location Arrangements (Ming Pao)

Professor Albert Chen provides a legal analysis of the NPCSC’s Decision on the Co-location Arrangement in a two-part article in Chinese published in Ming Pao on 8 January and 9 January 2018. He argues that the uproar in the legal profession after the NPCSC Decision is a result of different understandings of the meaning of the Decision and different ways of interpreting the Basic Law. The Decision is not inconsistent with the Basic Law. Taking into account the convenience of the passengers and the nature of “colocation”, the Co-location Arrangement can be understood to be a “proportionate” arrangement under Article 18 of the Basic Law if the Article is interpreted in accordance with a “purposive approach”.

     He contends in the first article:

“[T]he Decision of the NPCSC considers that Article 18 (of Basic Law) does not prohibit the Hong Kong SAR from exercising its high degree of autonomy in matters of immigration (entry and exit) control to set up the co-location arrangement and to deem the Mainland Port Area in the West Kowloon station to be part of the Mainland. Accordingly, the HKSAR can prescribe that for the purposes of the application of law and the jurisdiction of the courts (except for the six types of matters stipulated in the “cooperative arrangements on colocation” to be governed by the law of Hong Kong), the Mainland Port Area is deemed to be part of the Mainland. Therefore, the application of Mainland law in the Mainland Port Area of the West Kowloon station does not contravene Article 18 of the Basic Law. It must be pointed out that the Decision of the NPCSC does not assert or imply that the HKSAR government or the HKSAR legislature shall have power to mark out a piece of land anywhere in the Hong Kong for any purpose and to stipulate that Mainland law will be implemented on that piece of land. Therefore the Bar Association is mistaken in contending in a Statement on December 28 last year that the Decision of the NPCSC implies that the HKSAR government is capable of authorizing the application of Mainland laws to any part of the HKSAR designated by itself (e.g. the High Court Building) as long as it does not cover the whole of the HKSAR. This is definitely not the legal meaning of the NPCSC Decision.” 

For the full article in Chinese only, see Legal Analysis of the NPCSC Decision on the Co-location Arrangement I.

     In the second article, Professor Chen states that: 

“Some legal professionals argue that the co-location arrangement is in clear violation of Article 18 of the Basic Law, and this is because they interpret Article 18 in accordance with the literal rule of interpretation. Let us put aside for the moment the interpretation approach (of “original intent”) adopted by the NPCSC, which may differ from the common law approach adopted in Hong Kong. Even in the common law tradition, the literal interpretation of law is not the only way of interpretation. Another method of judicial interpretation that has long been established by common law courts is to interpret and apply relevant legal provisions so as to give effect to the legislative purpose behind the provisions. This is the so-called purposive approach. In the precedents of common law, despite the fact that courts have followed the literal approach of interpretation in large numbers of cases, there are quite a few cases in which the Court applies the purposive approach in order to give a more flexible interpretation or application of the relevant laws; it is not rigidly constrained by the literal meaning of the legal text.”

For the full article in Chinese only, see Legal Analysis of the NPCSC Decision on the Co-location Arrangement II.  This post was prepared by Ms Isabella Liu, Research Officer, Faculty of Law.

HKU Law Faculty Members Comment on Hong Kong's High Speed Railway Joint Checkpoint Issue

"Looking at the legal issues in the checkpoint 'co-location' plan impartially, rationally and practically"

Albert Chen

Ming Pao

1 Aug 2017

The HKSAR Government announced on Tuesday (25 July 2017) the plan for the “co-location” of customs, immigration and quarantine clearance (“CIQ”) arrangements at the West Kowloon station of the Express Rail Link to Shenzhen and Guangzhou. It has aroused heated debates in the community, including many criticisms and objections from the political and legal circles. I believe that we should not over-politicize the relevant issues, but should consider and discuss the matters in a manner that is impartial, rational and practical, so that the public can comprehensively and objectively understand the nature of the co-location plan in the West Kowloon Station.

     It must be pointed out that convenience for passengers is the sole objective of the co-location plan, which is to enable passengers to go through the CIQ clearance procedures with less time and more expedience. In other words, after passing the checkpoints in the West Kowloon Station, passengers from Hong Kong can go to all destinations in the Mainland without the need to go through any clearance procedure in the mainland. Conversely, passengers from the Mainland can undergo CIQ procedures only after they arrive in Hong Kong, without any clearance procedure in any Mainland city. Thus, the co-location plan is not designed for the purpose of expanding the jurisdiction of the Mainland authorities, or to extend the reach of Mainland laws in Hong Kong... Click here to read the full article in Chinese.  

Section 39 of the Public Order Ordinance gives Mainland law enforcement officers a limited degree of powers with necessary force to arrest and detain the Mainland's wanted persons for repartition inside trains and within the “immigration area on the Mainland side”. In order to tackle the so-called security loopholes, there is no need to fully implement Mainland laws or to remove the jurisdiction of Hong Kong... Click here to read the full post in Chinese on Eric Cheung's Facebook page.

For other articles and coverage, see Ming Pao (Johannes Chan), The Standard, Hong Kong Free Press, RTHK, South China Morning Post, Reuters, and New York Times.  Translations by Isabella Liu.

Albert Chen on Hong Kong-China Speed Train Immigration Arrangements (China Daily)

"Laws needed for co-location: Albert Chen"
Joseph Li
China Daily
18 March 2016

Albert Chen Hung-yee, a member of the HKSAR Basic Law Committee, says Hong Kong and the mainland may have to enact laws to implement co-location of immigration facilities at the West Kowloon Terminus of the high-speed rail link.

     Chen, who is also a law professor at the University of Hong Kong, told China Daily in an exclusive interview that the co-location arrangement is convenient to commuters and legally workable. He said people should not worry that the “One Country, Two Systems” principle would be compromised, as the opposition camp claimed. Similar co-location arrangements are in force in foreign countries - and also at Shenzhen Bay Control Point between Hong Kong and Shenzhen. Nobody opposed the Shenzhen Bay model in 2006, Chen added.

    He said the opposition should not bundle the HK$19.6 billion supplementary funding for construction of Guangzhou-Shenzhen-Hong Kong Express Rail Link with the co-location issue, as these two issues could be dealt with separately. The additional funding was approved by the Legislative Council Finance Committee last week.

     Recently in Beijing, Rao Geping, a mainland member of the Basic Law Committee, said that to implement co-location, Hong Kong and mainland authorities needed to reach an agreement, which could be endorsed by the Standing Committee of the National People’s Congress - the country’s highest legislature. Rao also said there was no need to include more national laws in Annex III of the Basic Law. The annex stipulates which national laws are applicable to Hong Kong.

     Referring to Rao’s proposal, Chen said it could not solve the problem completely. He said it was necessary for Hong Kong to enact a law, or for both the SAR and the mainland to enact laws, to implement co-location of facilities in Hong Kong.

     “It is (safer) to make laws in both places because the Hong Kong legislation alone cannot decide if local courts have jurisdiction over the mainland officers performing duties in Hong Kong,” Chen said.

    He said that under Hong Kong legislation, the powers of mainland officers performing immigration, customs and quarantine duties in designated areas of the West Kowloon Terminus would be specified.

     The officers should not have the power of arrest in Hong Kong although they can repatriate persons who are refused entry into the city. In case those persons apply for habeas corpus, Hong Kong courts shall have the power to accept or reject the application, Chen added.

      At the same time, a mainland law will be enacted to spell out which types of conduct of the mainland officers are within the jurisdiction of courts in Hong Kong and this law shall be incorporated into Annex III of the Basic Law. That will be similar to the Garrison Law that applies to the People’s Liberation Army Hong Kong Garrison.

     Chen said: “If the powers of the mainland officers performing duties in Hong Kong are clearly defined and limited by law, it will make Hong Kong residents feel more comfortable.

     “Yet those who oppose the Express Rail Link and co-location will oppose whatever form of co-location system,” he added... Click here to read the full article.