2016/11/20 — 17:19
有公眾影響力的人(特別是法律專家)應慎言。法律爭辯是50對50的法庭遊戲、美國著名球星OJ Simson 涉嫌殺妻案贏了官司是一例。對方陣營會趁勢利用「張達明好擔憂的評論及已建立的公正地位」、辯方律師也可能因此採用守勢；法官乘機判劉小麗輸！因此，筆者發公開信給張達明，要求其收回言論，仍然生效。
Mr Leung and Ms Yau oppose these applications on two principal grounds. They are that (a) matters concerning the oath taking by a LegCo member and the validity thereof are “internal business” of the LegCo and, under the non-intervention principle in common law, the court should and could not intervene in these matters or any decisions made by the President or the Clerk relating to them; and (b) the words spoken in relation to the “oaths” taken by Mr Leung and Ms Yau are protected by the immunity provided under BL77 and sections 3 and 4 of the Legislative Council (Powers and Privileges) Ordinance (Cap 382) (“LCPPO”), and they are therefore immune from suit, including the present ones.
但區官判，如何理解《宣誓及聲明條例》是法院的管轄範圍。(The construction of the meaning of these provisions of the ODO is for this court, and under common law the court should adopt a purposive construction, read in their proper context of the whole statue.)
It is thus a constitutional requirement under BL104 that LegCo members (as well as the CE, principal officials, Executive Council members and judges of the Hong Kong Special Administrative Region) are mandatorily required to take an oath when assuming office.
Fourth, an oath is a solemn declaration. In its original form it was invariably a promise to one’s deity. The ODO does not allow for any real difference in the form and substance of the oath itself as to how a person wishes to take it. Hence, a LegCo member who seeks to alter the form, manner or substance of the oath when taking it will offend BL104 and therefore be unlawful and of no effect: Leung Kwok Hung, supra, paragraphs 36 - 40.
區官詳細地解釋，法院為何介入宣誓風波。他指，立法會必須依法辦事(Legislative Council must act in accordance with that law)，但應該以一種克制的方式介入(‘should only be exercised in a restrictive manner’)。不介入原則必須在憲法(基本法)之內(principle of non-intervention is necessarily subject to constitutional requirements.)。
區官的結論是，在基本法下的不介入原則，不阻止法院介入(54. Bearing these principles in mind, it is clear to me that the non-intervention principle as applied in Hong Kong does not prohibit the court from determining the matters under challenge in these proceedings.) (注一)
(c) The unchallenged evidence is also that the term “支那人” is commonly used by anti-Chinese organizations such as “台獨”, “港獨” groups to refer derogatorily or disparagingly to Chinese people. Mr Leung and Ms Yau thus conveyed the message that they advocated independence of Hong Kong (港獨), as exemplified in their reference and pledge to the “Hong Kong nation”.
(d) The unchallenged evidence is further that “Hong Kong is NOT China” also has reference to the use of the same banner at a local football match between Hong Kong and China held on 17 November 2015, which expresses the meaning, in context, that the Hong Kong Special Administrative Region is not part of the People’s Republic of China.
(2) The word “neglect” has been defined as “an omission to perform a duty which the person owing the duty is able to perform”. Again, when properly read in the context of section 21 of the ODO, it should mean a deliberate or wilful (in contrast to an inadvertent or accidental) omission to perform the duty to take the oath as prescribed when requested to do so.
由於未來的司法覆核是爭辯基本法104條(The constitutional requirement to take the oath under BL104 is of fundamental importance.)區官的判詞差不多相等於，法院必須受理相關司法覆核。所有受受影響議員都會在未來生活在美國科幻電視劇《穹頂之下》（Under the Dome）。他們不知幾時上訴排到自己，但在這段時間，若他們玩大咗，有可能被釘死。假若被釘死，最壞的是引用今次判例，在就職第一天被取消議員資格，及被追回數年的議員薪津。
它會成為另一場官司，但他們已被定為蓄意玩嘢(Alternatively, at the least, they must have wilfully omitted (and hence neglected) to do so.)。他們有可能被認為顧意觸犯基本法104條，從而有被追討全數。但，那些議員全是有產階級，你估他們會點行事呢？
With respect, I am unable to agree with Mr Pun for the following reasons.
- The non-intervention principle has its origin in common law and is premised on the doctrine of separation of powers in England, where there is no written constitution, and where there is supremacy of the Parliament. However, the scope of this principle as applied in a different jurisdiction must be understood in and limited to the proper context of that jurisdiction, in particular where there is a written constitution. Thus, in present day Hong Kong, where there is the written constitution of the BL and where the BL is supreme instead of the legislature, the court does have jurisdiction under the BL to determine, by declaratory relief, questions such as whether the internal Rules of Procedure enacted by the LegCo (which would be regarded as “the internal matters” of the Parliament under the non-intervention principle in the UK) are consistent with the BL. This has been explained by A Cheung J (as the learned CJHC then was) in Cheng Kar Shun v Li Fung Yung  2 HKLRD 555 at paragraph 217 as follows:
“217. After 1997, in Leung Kwok Hung v President of Legislative Council  1 HKLRD 387, a case concerning the prohibition of members of the Legislative Council from introducing bills to the Legislative Council which have a charging effect under art.74 of the Basic Law, Hartmann J (as he then was) noted that being subordinate to the Basic Law, the Legislative Council must act in accordance with that law. His Lordship pointed out that in the United Kingdom, Parliament is supreme. The courts there are confined to interpreting and applying what Parliament has enacted. Parliament has exclusive control over the conduct of its own affairs. The courts will not permit any challenge to the manner in which Parliament goes about its business. If there are irregularities, that is a matter for Parliament to resolve, not the courts. However, in Hong Kong, the Basic Law is supreme. But subject to that, the Basic Law recognises the Legislative Council to be a sovereign body under that law. In setting Rules of Procedure to govern how it goes about the process of making laws, provided those rules are not in conflict with the Basic Law, the Legislative Council is ‘answerable to no outside authority’. The learned Judge concluded that so far as jurisdiction is concerned, the courts of the Hong Kong Special Administrative Region do have jurisdiction under the Basic Law to determine, by way of declaratory relief, whether Rules of Procedure enacted by the Legislative Council are consistent with the Basic Law. Yet, it is a jurisdiction which, having regard to the sovereignty of the Legislative Council under the Basic Law, ‘should only be exercised in a restrictive manner’. See p.390 para.5, p.391 paras.9-10, p.393 para.24, p.394 paras.28, 31.” (emphasis added)
- In this respect, the scope of the non-intervention principle as applied in Hong Kong in the context of BL has recently been authoritatively explained by the Court of Final Appeal in Leung Kwok Hung v The President of the Legislative Council (No 1) (2014) 17 HKCFAR 689 (“Leung Kwok Hung CFA”), where the Court said these at paragraphs 28 - 32 and 39:
“28. In construing and applying the provisions of the BL, it is necessary not only to apply common law principles of interpretation but also principles, doctrines, concepts and understandings which are embedded in the common law. They include the doctrine of the separation of powers and, within it, the established relationship between the legislature and the courts. This relationship includes the principle that the courts will recognise the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, in particular its legislative processes. The corollary is the proposition that the courts will not intervene to rule on the regularity or irregularity of the internal processes of the legislature but will leave it to determine exclusively for itself matters of this kind (‘the non-intervention principle’).
- The strength of this proposition rests not only on principle and authority but also on public policy. In Hong Kong, LegCo has as its primary responsibility its law-making function. It also has vested in it other important powers and functions under art 73, for example:
‘(2) To examine and approve budgets introduced by the government;
(3) To approve taxation and public expenditure;
(4) To receive and debate the policy addresses of the Chief Executive;
(5) To raise questions on the work of the government;
(6) To debate any issue concerning public interests;’
- The important responsibilities of LegCo, notably its law-making function, require, as with other legislatures, that it should be left to manage and resolve its own internal affairs, free from intervention by the courts and from the possible disruption, delays and uncertainties which could result from such intervention. Freedom from these problems is both desirable and necessary in the interests of the orderly, efficient and fair disposition of LegCo’s business.
- The adoption of the principle of non-intervention by the courts will reduce, if not eliminate, the prospect of pre-enactment challenge to proceedings in LegCo. It will also reduce, if not eliminate, post-enactment challenges to the validity of laws made by LegCo based on irregularity in its proceedings, unless such an irregularity amounts to non-compliance with a requirement on which the validity of a law depends.
- In this respect it is important to recognise that the principle of non-intervention is necessarily subject to constitutional requirements. The provisions of a written constitution may make the validity of a law depend upon any fact, event or circumstance they identify, and if one so identified is a proceeding in, or compliance with, a procedure in the legislature the courts must take it under its cognizance in order to determine whether the supposed law is a valid law. In Australia, Cormack v Cope was such a case. There s 57 of the Australian Constitution provided a means of resolving a deadlock between the two Houses of Parliament culminating in a joint sitting of the two Houses to deliberate and vote upon a proposed law. But the section prescribed a procedure to be followed and compliance with that procedure was a condition of the validity of the proposed law when enacted.
- This qualification arises from the circumstance that, in the case of a written constitution, which confers law-making powers and functions on the legislature, the courts will determine whether the legislature has a particular power, privilege or immunity. In R v Richards, ex p Fitzpatrick and Browne, Dixon CJ, speaking for the High Court of Australia and with reference to the two Houses of the Australian Parliament, said:
it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise.” (emphasis added)
- Distilled from these principles as laid down by the Court of Final Appeal are the following ones which are particularly relevant for the present purposes:
(1) The principle of non-intervention as applied in Hong Kong is necessarily subject to the constitutional requirements of the BL. The provisions of the BL may make the validity of a law depend on any fact, event or circumstance they identify, and if one so identified is a proceeding in, or compliance with, a procedure in the legislature, the court must take it under its cognizance in order to determine whether the supposed law is a valid law. See Leung Kwok Hung CFA, paragraph 32.
(2) Further, in the case where the written constitution which confers (as the BL in Hong Kong does) law-making powers and functions on the legislature, the court will determine whether the legislature has a particular power, privilege or immunity. See Leung Kwok Hung CFA, paragraph 39.
(3) In the premises, what can be properly regarded as the “internal business” or “internal process” of the LegCo must be viewed under the above caveat prescribing the non-intervention principle in Hong Kong.
- Bearing these principles in mind, it is clear to me that the non-intervention principle as applied in Hong Kong does not prohibit the court from determining the matters under challenge in these proceedings.