Editors’ Note: We are pleased to feature these two posts on Hong Kong Constitutional Law, authored by students learning the subject under the supervision of Professor Rehan Abeyratne at the Chinese University of Hong Kong. Below, Professor Abeyratne first offers a brief introduction; the two student posts follow.
Introduction to Hong Kong Constitutional Law Student Series
–Rehan Abeyratne, Assistant Professor of Law, Chinese University of Hong Kong
Students in my first-year Hong Kong Constitutional Law course, working in groups of four, were asked to identify a political or social problem in Hong Kong, frame it in constitutional terms, and devise possible remedies or solutions. They wrote up their findings in 1,000-word posts that were published on our internal class blog.
The ICONnect editors have kindly agreed to publish two of these posts. The first post analyzes the limited space for civil disobedience in light of recent political events and judicial decisions. The second post examines the constitutional implications of the co-location agreement that permits Mainland Chinese authorities to exercise jurisdiction over some parts of Hong Kong designated for the impending Guangzhou-Shenzhen-Hong Kong Express Rail Link.
These posts reflect the fraught state of public law in Hong Kong today, twenty years after it became a Special Administrative Region of the People’s Republic of China. They also shed light on how to preserve Hong Kong’s high degree of autonomy and the political freedoms protected by the Basic Law.
Civil Disobedience as a Mitigating Factor–A Matter of Judicial Discretion?
–Owen Li Chak Yin, Chelsea Lau Ching Lam, Sunny Liu Tin Long, Chan Nok Yin Samuel
The recent judgement in Secretary for Justice v Wong Chi Fung brought civil disobedience into the limelight in Hong Kong. Civil disobedience involves a group of individuals taking part in an unlawful but peaceful and non-violent assembly to “protest against perceived injustice or in order to effect some change in either the law or society.” The Court briefly considered civil disobedience as a mitigating factor for the unlawful assembly as this motive may reduce the moral culpability of the crime, but its discussion ended prematurely because the protestors had engaged in violent acts which defeated their defence. This, however, prompts an important question: should there be peaceful and non-violent civil disobedience in the future, how much weight would the court give to the motive of civil disobedience in an unlawful assembly?
Civil disobedience, albeit not explicitly stipulated, is implied as a constitutionally protected right. Article 27 of the Hong Kong Basic Law protects citizens’ freedom of speech and assembly, and such protection is the cornerstone of a democratic society. However, these freedoms are not absolute. They are subject to certain restrictions including protection of public safety, public order and protection of rights and freedoms of others. Indeed, civil disobedience pits the freedom of expression and assembly of protestors against the infringement of rights and freedoms of others. Thus, when considering the significance of this mitigating factor, the court will have to balance the protection-worthy motive of civil disobedience against the degree of disruption caused.
Civil disobedience may bring a positive change in society amid grave social injustice. For example, during the Keystone XL civil disobedience in the USA, protesters and environmental activists unlawfully occupied roads outside the White House and constructions sites across the state of Nebraska in an attempt to bring the controversial oil pipeline project to a halt. The protests sparked media attention and ultimately forced President Obama to veto the Keystone XL Pipeline Bill from Congress in 2015. This epitomized how civil disobedience, through disruption, can effectively draw societal attention and force the government to respond to popular discontent. In exercising their freedom of speech and assembly through civil disobedience, the protestors are primarily concerned with the betterment of society, not themselves.
Civil disobedience, however, may put public safety and order in jeopardy, undermining others’ rights and freedoms. “Public safety” is defined as “safety of persons or things”, which includes the protection of the rights of passers-by and the participants as to their personal safety and physical integrity. In lawful demonstrations, the government has a positive duty to “take reasonable and appropriate measures to enable lawful assemblies to take place peacefully.” This ensures public safety and public order. However, civil disobedience is, by definition, unlawful especially when protestors expressly pledge to violate the law. Thus, the government has no such duty to protect the protestors’ right of speech and assembly. Public safety could then be undermined. For example, during the 2014 Occupy Movement, protestors suddenly blocked major highways with neither authorization nor protection from police, putting both the lives of drivers and protestors under threat. Such a large number of protestors without police maintaining order may also create chaotic situations such as conflicts with rival groups or problems with crowd control. The damage caused to society may result in the court giving less weight to the positive motive of civil disobedience.
How should courts balance these competing interests? First, courts have to consider whether the unlawful assembly can be classified as civil disobedience by assessing the legitimacy of the assembly’s objective. Courts should then consider the significance of civil disobedience as a mitigating factor, which involves determining whether the assembly meet the restrictions as stipulated. Any restrictions limiting freedom of speech should be given a narrow interpretation and the government should have to justify the restriction. Such an approach was adopted in Yeung May Wan & Others v HKSAR where the Court of Final Appeal adopted a narrow interpretation of a restriction on the freedom of assembly.
The mere fact that an assembly… causes some interference with free passage along a highway does not take away its protection under art. 27 of the Basic Law… it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate… a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable. 
This reasonableness approach should be adopted if civil disobedience occurs in Hong Kong. Courts would determine whether the disruption caused was publicly acceptable. Protestors will lose the constitutional protection of their rights if they cause a disproportionate disruption such that it becomes unreasonable for the public to tolerate.
Civil disobedience is paradoxical in that protestors break the law and cause disruption to achieve the positive change. Courts will never encourage unlawfulness, especially amid increasing emphasis on law and order in Hong Kong. Nevertheless, when considering the motive behind civil disobedience, courts should look at the minimal moral culpability of the unlawful assembly and perhaps grant a lighter sentence to the protestors to uphold their rights of freedom of speech and assembly, assuming that the disruption is not disproportionate.
 Secretary for Justice v Wong Chi Fung  HKEC 214.
 Ibid, at para. 71.
 Ibid, at para. 64.
 Leung Kwok Hung & Others v HKSAR  3 HKLRD 164.
 Hong Kong Bill of Rights Ordinance art. 16, 17.
 Mufson, Steven ‘Keystone XL pipeline opponents turn to civil disobedience’ The Washington Post, 15 October 2012.
 Secretary for Justice v Wong Chi Fung  HKEC 214.
 Hong Kong Police Force Guidelines on the Approach to the public order ordinance in relation to public meetings and public processions 2018.
 Leung Kwok Hung & Others v HKSAR  3 HKLRD 164.
 HKSAR v Ng Kung Siu and Another  3 HKLRD 907.
 Yeung May Wan & Others v HKSAR  2 HKLRD 212.
Moving Past the Borders: Does the Controversial Co-location Arrangement Breach the Basic Law?
–Chiu Jin, Lam Oi Yee Grace, Wong Tsz Ching, Fung Heung Ying
Under “One Country, Two Systems”, the national laws of Mainland China (PRC) should not be implemented within the Hong Kong Special Administrative Region (HKSAR) unless they are placed within Annex III of the Basic Law (BL). The Basic Law is Hong Kong’s “mini constitution”, which, among other things, governs HKSAR-mainland relations. The Standing Committee of the National People’s Congress’ (NPCSC) endorsement of the co-location agreement for the West Kowloon Railway Station raises serious constitutional concerns under the BL. The agreement will allow mainland officials to exercise jurisdiction over the port area designated for the operation of the Guangzhou-Shenzhen-Hong Kong Express Rail Link. Passengers will have to undergo HK and PRC clearance and arrival procedures at a joint checkpoint.
One of the main issues is whether the HKSAR had authority to enter into the agreement with the mainland authorities in the first place. According to Article 7 of the BL, Hong Kong’s the HKSAR government is “responsible for the management, use and development” of public lands and has the right of lease. Thus, at first glance, it appears that the HK government had legitimate grounds to accept the co-location arrangement. These grounds include socio-economic considerations, such as promoting trade and enhancing travel convenience.
However, it is unclear whether jurisdiction over the co-location area can be lawfully handed over to the Mainland authorities. Under the agreement, the area will not be considered Hong Kong territory. Instead, it will fully implement PRC civil and criminal laws, thus raising alarm that HK citizens could be arrested under national laws for acts that may be legal under HK laws. This violates the long-held understanding that national laws implemented in HK would only be restricted to those listed in Annex III of the BL, as stipulated by Article 18.
Such extended Chinese jurisdiction circumvents the original meaning of the BL. Article 20 was intended to provide more freedom to HK by permitting it to “enjoy other powers granted to it by the [National People’s Congress] NPC and the Central People’s Government”, rather than limiting HK’s scope of jurisdiction. Moreover, even though the BL has provisions to encourage cross-border trade, they do not cede jurisdiction to the Mainland. Under Article 154 (2) of the BL, the HK Immigration Department should be responsible for controlling border points. HK should not handover its immigration authority to the Mainland. The maxim of generalia specialibus non derogant should be followed when interpreting general provisions in the BL, in which Hong Kong maintains a high degree of autonomy to improve socio-economic conditions. These general provisions should yield to specific articles such as Article 19, which safeguards HK’s independent judicial power. Adopting this narrower interpretation of the BL would better reflect its legislative intent.
HK officials claim the co-location would be an instance of “juxtaposed control” similar to Britain and France with the Eurostar. However, HK is not an independent country with equal standing to China. Indeed, since the BL itself is a national law of the PRC, a clear separation between the “Two Systems” is needed to avoid potential encroachment upon HK’s autonomy.
The government’s claim that the current co-location arrangement is similar to the Shenzhen border checkpoint (2006) is also unpersuasive. The Shenzhen arrangement has sufficient legal backing as it is justified by Article 20 of the BL, which allows the NPCSC to grant HK additional powers. More power is vested in HK by allowing it to exercise jurisdiction in this border area outside of its borders. However, the BL does not have any provisions implying that such residual powers operate in reverse – nothing in the BL text justifies the exercise of PRC jurisdiction within HK territory.
Moreover, the NPCSC’s decision to approve the agreement lacks a legal basis. Despite the fact that two judicial review cases in HK have arisen with respect to this proposal, the NPCSC has not provided sufficient explanation as to why the agreement should be approved. It has simply handed down a top-down decision stating that the plan is in line with the PRC Constitution.
While NPCSC interpretations of the Basic Law are binding and final, it is uncertain whether NPCSC decisions are formally binding. This touches upon the core relationship between NPCSC and HK courts – can HK courts question the constitutionality of NPCSC decisions?
It is not clear to what extent the HK courts can question NPCSC decisions. The HK Secretary for Justice stated that the government’s proposal could be challenged, but made no comment as to whether NPCSC’s decision itself could be subject to judicial review in HK courts. It is also not known whether the NPCSC decision has any direct binding authority on HK. While some members of the Basic Law Committee believed it did not since it was equivalent to Mainland laws, others claimed it was an “act of state” under BL Article 19. This would mean HK courts have no jurisdiction over the decisions of the NPCSC.
Regardless of how these provisions should be interpreted, the implementation of the co-location arrangement will undermine the legitimacy of “One Country, Two Systems”. The BL was implemented to safeguard HK’s high level of autonomy. However, implementing the co-location arrangement would set a poor precedent indicating the NPCSC can give force to laws or agreements simply by “confirming” they are consistent with Constitution of the PRC. Due respect would not have been given to HK’s jurisdictional autonomy.
Furthermore, public confidence in the BL will likely decline. Since the handover of Hong Kong from Britain to the PRC in 1997, this mini-constitution has served to protect residents’ rights and maintain Hong Kong’s unique political, economic and social environment. However, the cross-border law enforcement involved in this agreement raises public fears of the Mainland’s arbitrary power over HK, much as with the Causeway Bay bookstore incident. The co-location area may become a site in which the Mainland police arrests dissidents against the central government. If public confidence towards the BL declines, it will also negatively affect HK’s trading environment and social stability.
The co-location arrangement remains a political hot potato, especially in light of HK’s tense relations with the mainland. In order to safeguard HK’s rule of law, the details of the agreement ought to be negotiated carefully to avoid potential breaches of constitutionality.
 Hong Kong Basic Law (BL), Article 2 (providing a “high degree of autonomy” to the Hong Kong Special Administrative Region within the People’s Republic of China).
 BL, Article 18.
 ‘Annex III, Introductory remarks by SJ at press conference on co-location arrangement of Hong Kong Section of Guangzhou-Shenzhen-Hong Kong Express Rail Link’ (The Government of Hong Kong Special Administrative Region, 25 July 2017). https://www.thb.gov.hk/tc/policy/transport/policy/colocation/Press_Conference_Powerpoint_for_reference.pdf.
 Linda Poon, ‘The High-Speed Train at the Heart of Hong Kong’s Political Future’ Citylab, 20 December 2017.
 ‘Editorial: Co-location arrangements and the grey area of the Basic Law’ Mingpao, 28 July 2017.
 BL, Article 154.
 ‘Beijing’s ‘distortion’ of Hong Kong Basic Law greatly undermines rule of law, legal experts warn’ Progressive Lawyers Group, 28 December 2017.
 BL, Article 19.
 Juliana Liu, ‘Hong Kong-China train station could apply mainland law’ BBC, 26 July 2017.
 ‘Government announces co-location arrangement’ The Government of Hong Kong Special Administrative Region, 26 July 2017 <http://www.info.gov.hk/gia/general/201707/26/P2017072501134.htm> .
 BL, Article 20.
 Lau Kong Yung v Director of Immigration  3 HKLRD 778,  4 HKC 731.
 Tony Cheung, ‘Hong Kong Courts can Challenge Government’s Bid to Write Joint Checkpoint into Law, Says Justice Minister’ South China Morning Post, 21 January 2018.
 Emily Tsang and Kimmy Chung, ‘Joint Checkpoint Plan for Hong Kong’s Express Rail Link ‘Cannot be Challenged’ by City, Beijing Official Says’ South China Morning Post, 13 January 2018.
 BL, Article 11.
 ‘On cross-border detention, Hong Kong and mainland China must strive for greater progress’ South China Morning Post, 6 July 2016.
 Jeffie Lam, Kimmy Chung, ‘Mainland China’s criminal law will also apply at Hong Kong’s rail link terminus’ South China Morning Post, 24 July 2017.
Suggested Citation: Rehan Abeyratne, ed., Perspectives on Hong Kong Constitutional–Views from Law Students, Int’l J. Const. L. Blog, July 24, 2018