Submission on Guangzhou-Shenzhen-Hong Kong

Express Rail Link (Co-location) Bill

Progressive Lawyers Group

A. Introduction

1. The Government has recently tabled the Guangzhou-Shenzhen-Hong Kong Express Rail
Link (Co-location) Bill1 (the “Bill”) at the Legislative Council (“LegCo”). This marks the
beginning of the last and final step of the “Three-step Process” for implementing the co-
location proposal announced in July 2017.

2. The Progressive Lawyers Group (“PLG”) issued a submission2 in September 2017 (“First
Submission”) in response to the decision made by the Chief Executive in Council on 25
July 2017 to implement the co-location arrangement. We were of the view that such
arrangement is in clear and direct contravention of numerous provisions of the Basic Law
(“BL”).

3. Since the issuance of the First Submission, the first two steps of the “Three-step Process”
have completed and a number of reasons have been put forward by the Government in an
attempt to provide legal justification for the Bill. We are not convinced by the purported
justifications and we maintain our view that the co-location arrangement will inevitably
violate the BL. We set out our position as follows.

1
https://www.legco.gov.hk/yr17-18/english/bc/bc102/general/bc102.htm
2
English version: https://goo.gl/jBPrxU; 中文版﹕https://goo.gl/zRQENu

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 B. The Three-step Process

4. The first two steps of the “Three-step Process”, which precipitated the introduction of the
Bill, are recited in its Preamble:

● On 18 November 2017, the Government of the Hong Kong Special Administrative

Region (“HKSAR”) signed the Co-operation Arrangement between the Mainland and the
Hong Kong Special Administrative Region on the Establishment of the Port at the West
Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for
Implementing Co-location Arrangement (“Co-operation Arrangement”) with the
People's Government of Guangdong Province.

● On 27 December 2017, the Standing Committee of the National People’s Congress

(“NPCSC”) made its decision to approve the Co-operation Arrangement (“NPCSC’s
Decision”). .

5. The Government admits that the Co-operation Arrangement is only an act of the executive,
it cannot be implemented until and unless the Bill comes into force.3

6. We note that, despite the view that the NPCSC has the ultimate power in deciding whether
the Co-operation Arrangement is constitutional, the NPCSC’s Decision is not an
interpretation made pursuant to Article 158 of the BL. It should be noted that pursuant to
Article 67(3) of the Constitution of the People’s Republic of China, the NPCSC’s power to
partially supplement and amend laws enacted by the National People’s Congress (“NPC”)
is subjected to the proviso that the basic principles of the laws are not contravened. The
BL is a law enacted by the NPC enshrined with the PRC’s basic principles of “One
Country, Two Systems” to be applied in the HKSAR. Whether the NPCSC’s Decision has
the same effect as an interpretation and thus binding on the HK courts is highly doubtful.
It is well established that, save a binding interpretation by the NPCSC, HK courts are
obliged to apply the common law approach when interpreting the BL.4

3
Letter from the Administration responding to the letter dated 9 February 2018 from Senior Assistant Legal Adviser
dated 22 February 2018, LC Paper No. CB(4)631/17-18(01), p. 2. http://www.legco.gov.hk/yr17-
18/english/bc/bc102/papers/bc10220180223cb4-631-1-e.pdf
4
See The Director of Immigration v Chong Fung Yuen [2001] HKCFA 48, para. 8.3.

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 C. Article 18 and the Application of Mainland Laws

7. Article 18 of the BL provides that only national laws relating to defence, foreign affairs
and “matters outside the limits” of Hong Kong’s autonomy can be listed in Annex III of
the BL and thus applied in HK. Therefore, the application of the laws of the Mainland
(other than the reserved civil matters) under the Bill must contravene the BL.

8. As the Government acknowledges, the original intent of Article 18 of the BL was to

restrict the application of national laws to all persons within the HKSAR, in order not to
undermine the high degree of autonomy and legal system thereof. However, the
Government asserts that the Co-location Arrangement will not violate the BL because the
scope of application of national laws under the Co-location Arrangement is restricted only
to the Mainland Port Area (“MPA”) and that they are only applicable to Express Rail Link
(“XRL”) passengers who chose to enter the MPA.

9. We are of the view that the Government’s reasoning is devoid of merit. Both the plain
reading and the acknowledged original intent of Article 18 are clearly to restrict the
application of national laws to all persons within the HKSAR. There is no qualification in
Article 18 or elsewhere in any extrinsic materials that such restriction is valid only where
the national laws are to be applied generally over the whole HKSAR.

10. The Government asserts that people taking the XRL will choose to enter the MPA
voluntarily and thus submit themselves to the national laws and jurisdiction of the
Mainland courts. This purported explanation is, in our opinion, against the most
fundamental principle of rule of law. All laws of Hong Kong must comply with the BL,
including all the provisions affording protection of human rights to people in the HKSAR,
to be constitutional and valid. The fact that any individual willingly accepts any piece of
law cannot be a ground to justify the constitutionality of the law. Waiver or consent
cannot be a justification to deprive or infringe the fundamental human rights of an
individual5.

5
See Mionis v Democratic Press SA [2018] 2 WLR 565, 582-583; Albert and Le Compte v Belgium (1983) 5 EHRR
533, para 35; De Wilde, Ooms and Versyp v. Belgium (No.1) (1971) 1 EHRR 373, para 65

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11. It follows that any attempt to apply national laws which are not listed in Annex III pursuant
to the procedure stipulated must contravene Article 18, even if the application is limited to
a part of the HKSAR.

12. Further, the Government attempts to justify that Mainland laws other than those relating to
customs, immigration and quarantine (“CIQ”) procedures would need to be applied in the
MPA since “it is impossible to define in practice what Mainland laws are essential for
enforcing the Mainland clearance procedures”, and also that legal disputes and proceedings
will arise. It means that the reason for having the Co-location Arrangement is to avoid the
practical difficulties in identifying the Mainland laws that are applicable in the CIQ
procedures.

13. However, the Mainland legal system, which adopts a civil law system, involves only
written laws as opposed to the Hong Kong common law system which involves case law.
Mainland laws that are relevant to the CIQ procedures should be more readily identifiable.
Even if the applicable Mainland laws relevant to CIQ procedures cannot be identified in
readiness, such purported difficulty cannot be a proper justification for a blanket
application of Mainland laws while completely ousting in parallel the application of Hong
Kong laws.

D. BL Article 19 and the Removal of Jurisdiction of HK Courts

14. Clause 6(1) of the Bill provides that the jurisdiction of the HK courts over all matters
within the MPA, except for reserved matters, shall be removed and the Mainland courts
shall have jurisdiction over the same.

15. The Government seeks to justify the removal of the jurisdiction of the HK courts with the
following reasons:

○ Prior to 1 July 1997, there was legislation restricting the jurisdiction of the courts of
Hong Kong, e.g. the International Organizations and Diplomatic Privileges

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 Ordinance (Cap. 190) (“IODPO”), which has been recognised as part of the laws of
Hong Kong after 1 July 1997 (“Ground 1”);6 and

○ The restriction of jurisdiction satisfies the proportionality test (“Ground 2”).7

Ground 1: Restrictions Previously in Force

16. Article 19(2) of the BL provides that: “the courts of the Hong Kong Special Administrative
Region shall have jurisdiction over all cases in the Region, except that the restrictions on
their jurisdiction imposed by the legal system and principles previously in force in Hong
Kong shall be maintained” (emphasis added).

17. Clause 6(1) of the Bill obviously violates Article 19(2) of the BL unless it conforms with
the legal system and principles in force in Hong Kong prior to 1 July 1997.

18. The Government appears to b·e arguing that since there was legislation restricting the
jurisdiction of HK courts prior to 1 July 1997, the LegCo can now make laws which
impose any restriction on the jurisdiction of HK courts by virtue of Article 19(2) of the
BL.

19. If such argument is correct, the jurisdiction of HK courts can be removed, simply by a
piece of local legislation, in respect of any or even all matters in the whole HKSAR,
including the jurisdiction of HK courts to examine whether any act of the Executive or
legislation passed by the Legislature is compliance with the BL. This would in effect
allow local legislation to override the constitutional function and duty of HK Courts to
adjudicate matters within HKSAR. It clearly contravenes Article 19 of the BL and violates
the principle laid down by the Court of Final Appeal (“CFA”) that HK courts are obliged
to act as a constitutional check on the executive under the BL8. Such argument must be
rejected.

6
Letter of the Transport and Housing Bureau to the Secretary of the LegCo Secretariat dated 9 March 2018, LC
Paper No. CB(4)720/17-18(01), p.5 https://www.legco.gov.hk/yr17-
18/english/bc/bc102/papers/bc10220180313cb4-720-1-e.pdf
7
Ibid, p.6
8
Ng Ka Ling & Others v Director of Immigration [1999] 1 HKLRD 315, 337D-F (para 61)

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20. The Government referred to IODPO as an example of restricting the scope and extent of
the jurisdiction of HK courts. However, the Government has ignored the fundamental
differences between the IODPO and the Bill.

21. First, the IODPO is a piece of legislation which was in force before the BL came into
effect on 1 July 1997 and has thus been a part of the laws of Hong Kong prior to 1 July
1997 which is a valid restriction of the jurisdiction of the HK courts under Article 19(2) of
the BL.

22. Further, IODPO has its unique purpose of giving effect to diplomatic privileges and
immunities 9 . As provided in Article 19(3) of the BL, “the courts of the Hong Kong
Special Administrative Region shall have no jurisdiction over acts of state such as defence
and foreign affairs” (emphasis added). The substance of IODPO falls squarely within the
ambit of Article 19(3) of the BL. The restrictions imposed by IODPO on the jurisdiction

9
Legislative Council Brief - International Organisations (Privileges and Immunities) Bill, 21 January 1999, File
Ref : CSO/ADM CR 1/2071/98 Pt 2 https://www.legco.gov.hk/yr98-99/english/bc/bc10/general/46_brf.pdf

“3. As in other common law jurisdictions, international rights and obligations arising from international
agreements concluded by the HKSAR or applied to the HKSAR by the CPG do not automatically have the
force of law in the HKSAR. If the implementation of international agreements would affect private rights
and obligations, they must be transformed from the international legal plane onto the domestic legal plane
by legislation...

4. The conferment of privileges and immunities on international organizations is considered to be an act

falling within the repertoire of foreign affairs. It is therefore the responsibility of the CPG under Article
13(1) of the Basic Law which states that the CPG shall be responsible for the foreign affairs relating to the
HKSAR...

5. The principal Ordinance in the HKSAR giving effect to the privileges and immunities of international
organizations is the International Organizations and Diplomatic Privileges Ordinance (Cap 190) (the
Ordinance)...” [emphasis added]

Administration’s Response to the Issues raised by Bills Committee on International Organizations (Privileges and
Immunities) Bill, p.5 (part (c)), 22 March 1999 and 4 January 2000 https://www.legco.gov.hk/yr98-
99/english/bc/bc10/papers/ebc10ppr.htm

“Currently, the International Organizations and Diplomatic Privileges Ordinance (Cap. 190) is the
legislation giving effect to both diplomatic privileges and immunities and privileges and immunities
accorded to international organizations. The Administration do not find such an arrangement satisfactory
because the nature of privileges and immunities for international organizations and diplomatic privileges
and immunities are quite different in nature. It is considered more neat and tidy to have separate legislation
to deal with the two types of privileges and immunities. After the enactment of International Organizations
(Privileges and Immunities) Bill (the Bill), the existing International Organizations and Diplomatic
Privileges Ordinance (Cap. 190) (the Ordinance) will be the primary legislation to give effect to
diplomatic privileges and immunities.” [emphasis added]

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 of HK courts are therefore expressly allowed under the BL. As the CFA noted, “any
limitation on the courts’ jurisdiction must be found in the Basic Law itself.”10

23. The Government has not suggested that the B·ill involves any implementation of
international convention or diplomatic arrangement. The Bill therefore cannot be regarded
as a conferment falling within the repertoire of foreign affairs. The comparison to
IODPO is misconceived.

Ground 2: Proportionality Test

24. The Government further asserts that the Bill would satisfy the proportionality test under
Article 19 of the BL11.

25. The Government has not referred to any statutory or case authority to support its assertion
that the proportionality test would apply in an attempt to remove the jurisdiction of the HK
courts.12 In the context of restricting jurisdiction of the court, the proportionality test has
only been applied by HK courts in determining whether a statutory restriction on the limit
of time in bringing a matter to court or on the right to appeal to the CFA is constitutional.

26. On the contrary, the plain wording of Article 19 that “the courts of the HKSAR shall have
jurisdiction over all cases in the Region” (emphasis added) simply provide a blanket
prohibition against any attempt to remove matters within the HKSAR from the jurisdiction
of HK courts. It is thus clear that the proportionality test is not applicable since the removal
of jurisdiction of HK courts is clearly unconstitutional.

27. Even in the unlikely event that the proportionality test is somehow applicable, it is the duty
of the Government to satisfy the test13 and the Government has clearly failed to do so.

10
Ng Ka Ling & Others v Director of Immigration [1999] 1 HKLRD 315, 339E-F (para 72)
11
Letter of the Transport and Housing Bureau to the Secretary of the LegCo Secretariat dated 9 March 2018, LC
Paper No. CB(4)720/17-18(01), p.6 https://www.legco.gov.hk/yr17-
18/english/bc/bc102/papers/bc10220180313cb4-720-1-e.pdf
12
Ibid
13
Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762, para 31

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28. The Government explains that the purpose of removing the jurisdiction of the HK courts is
“to allow a large number of people to pass the immigration controls of the two places
efficiently and expeditiously at the West Kowloon Station.”14

29. According to the well-established principle laid down by the CFA15, the above asserted
purpose cannot be legitimate or proportionate for the following reasons:

○ Violates the Basic Policy of “the One Country Two Systems”: in accordance with
China’s basic policies regarding HK as set out in the Joint Declaration (para.3(3) and
Annex I Section III) and the Preamble of the BL, the BL vested independent judicial
power in the HKSAR (Articles 2, 19, 80 and 82 of the BL); the courts exercise the
judicial power of the HKSAR (Article 80 of the BL). The power of final
adjudication vested not in the Mainland but in HK (Article 82 of the BL) 16. To
deprive the HK courts from hearing cases of HK would violate the fundamental
element of the basic policy of “One Country Two Systems” which forms the bedrock
of the new constitutional order in HK after 1 July 1997.

○ Violates ICCPR 17 : the removal of jurisdiction of HK courts is depriving all

passengers of the XRL within the HKSAR ALL the rights recognised in the ICCPR
(which is entrenched by Article 39 of the BL and implemented by HK Bill of Rights)
and is directly contrary to the relevant provisions and principles18, to which HK is
under obligation to give effect.

○ Deprives Right to Access to HK Courts: HK residents have the right to access to the
HK courts, to judicial remedies and to institute legal proceedings in the HK courts
against the acts of the Executive (Article 35 of the BL). The removal of jurisdiction

14
Letter of the Transport and Housing Bureau to the Secretary of the LegCo Secretariat dated 9 March 2018, LC
Paper No. CB(4)720/17-18(01), p.6 https://www.legco.gov.hk/yr17-
18/english/bc/bc102/papers/bc10220180313cb4-720-1-e.pdf
15
Solicitor and Law Society of Hong Kong v Secretary for Justice (2003) 6 HKCFAR 570, para 33
16
Ibid, para 25 - 26
17
International Covenant on Civil and Political Rights
18
Article 2(1) of the ICCPR: “Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”; “The
[ICCPR] does not contain any provision regarding its termination and does not provide for denunciation or
withdrawal”; “international law does not permit a State which has ratified or acceded or succeeded to the Covenant
to denounce it or withdraw from it”, ICCPR, General Comment No. 26, para 1, 5

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 from HK courts is a blatant deprivation of this right protected by the BL.

30. The Government argues that the removal of jurisdiction from HK courts is a proportionate
measure because except for the MPA of around 109 000 m2, the jurisdiction of the courts
of Hong Kong at the West Kowloon Station would not be affected19.

31. The above analysis premised on the size of the MPA is misleading. The crux of the issue
is what human rights would be restricted by the Bill and whether it is no more than
necessary to achieve the alleged purpose. According to the Government, the average daily
cross-boundary passenger patronage of the XRL is 109,200 20 . Where the interests and
fundamental human rights of such a large number of people are involved, the size of the
MPA simply carries very minimal weight.

32. Further, the removal of jurisdiction of HK courts is absolute, i.e. people within the MPA
simply have no access to the court21, regardless of how serious the infringement of an
individual’s fundamental rights may have been. The complete restriction cannot be said to
be reasonably proportionate to any legitimate purpose which may underlie Clause 6(1) of
the Bill and has been repeatedly rejected by the CFA and ruled as unconstitutional22.

33. The Government has failed to demonstrate how an individual can effectively enforce
his/her fundamentals right enshrined in the BL and HK Bill of Rights in the jurisdiction of
the Mainland courts to the same or better extent in order to justify the removal of people in
the HKSAR from jurisdiction of HK courts to the jurisdiction of the Mainland courts.

19
Letter of the Transport and Housing Bureau to the Secretary of the LegCo Secretariat dated 9 March 2018, LC
Paper No. CB(4)720/17-18(01), p.7 https://www.legco.gov.hk/yr17-
18/english/bc/bc102/papers/bc10220180313cb4-720-1-e.pdf
20
LCQ16: Guangzhou-Shenzhen-Hong Kong Express Rail Link forecast data (8 November 2017)
http://www.info.gov.hk/gia/general/201711/08/P2017110800362.htm?fontSize=1
21
Except the few reserved matters stipulated in Clause 6(1) of the Bill
22
Solicitor and Law Society of Hong Kong v Secretary for Justice (2003) 6 HKCFAR 570, para 40 to 41; Mok
Charles v Tam Wai Ho (2010) 13 HKCFAR 762, para 62 to 73

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34. The Government further argues that since the passengers can freely choose to travel by the
XRL, it is a reasonable balance between the societal benefits of the removal of jurisdiction
of HK courts and the inroads made into the rights of the individuals23.

35. First, as submitted above, waiver or consent is not a justification to deprive or infringe the
fundamental human rights of an individual24.

36. Secondly, according to the CFA, some rights under the Hong Kong Bill of Rights are non-
derogable and absolute that any infringement cannot be justified by a proportionality
analysis which has no part to play at all25.

37. As such, the Government can by no means satisfy the proportionality test for the inroads
made into the constitutionally protected rights of the individuals under the Bill.

E. Conclusion

38. In the First Submission, we expressed our concern that the ultimate object of the
Government’s co-location proposal does not appear to be the ensuring of its adherence to
the BL, and is rather seeking to take the question of adherence to the BL away from the
HK Courts by making the NPCSC a central part of its legal mechanism for implementing
the MPA. Given the way the Government has pushed through the first 2 steps in the
“Three-Step Process” and the unsatisfactory explanations provided in support of the Bill,
our concern seems to have materialised.

39. The Government’s co-location proposal would set the worst precedent since the handover
in 1997 for the Executive can now circumvent all the provisions and procedures laid down
in the BL which are designed to safeguard the basic policy of “one country two systems”,
high degree of autonomy of Hong Kong and fundamental human rights afforded to Hong
Kong people. The BL would become nothing more than a collection of empty words that
can be twisted by the Government at will to suit its political goals. We maintain that any

23
Letter of the Transport and Housing Bureau to the Secretary of the LegCo Secretariat dated 9 March 2018, LC
Paper No. CB(4)720/17-18(01), p.7 https://www.legco.gov.hk/yr17-
18/english/bc/bc102/papers/bc10220180313cb4-720-1-e.pdf
24
See para 10 above
25
Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, para 145

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decision or interpretation in clear and direct contravention of the plain wording of the BL
would damage the well-established legal system and rule of law of Hong Kong. The co-
location proposal and the way the Executive has intended to implement the same
effectively amount to a rule by decree, which would ultimately cause more harm than
benefit to the economy of Hong Kong and its reputation as a global financial centre
governed by rule of law.

Progressive Lawyers Group

6th April 2018

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