In 2017, the Chief Executive of the HKSAR and the Governor of Guangdong signed the Co-operation Arrangement between the Mainland and the HKSAR on the Establishment of the Port at the West Kowloon Station (WKS) of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (the XRL) for implementing a Co-location Arrangement for clearance procedures for the XRL. Pursuant to the Co-operation Arrangement, customs, immigration and quarantine procedures of the Mainland and the HKSAR, as two different jurisdictions, were successively conducted at the Hong Kong Port Area and the Mainland Port Area of the West Kowloon Station, the terminus of the Hong Kong Section of the XRL. The Mainland Port Area was regarded as being situated in the Mainland and subject to the Mainland jurisdiction and law save and except certain reserved matters as prescribed. Subsequently, the Standing Committee of the National People’s Congress (the NPCSC) approved the Co-operation Arrangement and confirmed that it was consistent with the Constitution and the Basic Law of the HKSAR (the BL) (the NPCSC Decision). Both the Mainland and the HKSAR implemented the Co-operation Arrangement pursuant to their respective procedures, including the enactment in the HKSAR of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (Cap.632) (the Ordinance).
Xs brought judicial review proceedings challenging the constitutionality of the Ordinance on grounds including that: (i) the Ordinance, in particular the deeming provision under s.6, violated arts.18 and 19 of the BL (BL18 and BL19 respectively) since HKSAR laws were excluded from a place within the HKSAR’s geographic boundary; and (ii) the complete disapplication of HKSAR laws violated a number of provisions of the BL which conferred executive, legislative and judicial powers over the HKSAR, and the “one country, two systems” principle. The Judge found that the Ordinance was constitutionally compliant and dismissed the substantive application. Xs appealed on the main grounds that the Judge erred in: (i) relying on or placing excessive reliance on the principle that the BL should be treated as a “living instrument”; (ii) taking into account the NPCSC Decision and/or finding it to be highly persuasive; (iii) finding that the Ordinance was consistent with the BL, contrary to BL18 and BL19 and the basic purposes and policies of the BL; and (iv) finding that the establishment of the Mainland Port Area in WKS was itself a manifestation of the exercise of Hong Kong’s high degree of autonomy and recognition of the two distinct and separate systems being practised in Hong Kong and the Mainland.
The Court of Appeal formulated the core issue as: “Whether except for the reserved matters as defined, in deeming the Mainland Port Area at the [WKS] as an area lying outside Hong Kong but lying within the Mainland for the purpose of applying the Mainland law and the delineation of jurisdiction (including jurisdiction of the courts) over the Mainland Port Area, the Ordinance contravenes … BL18 and BL19 … thereby infringing the basic policies of establishing the [HKSAR] under the ‘one country, two systems’ principle; and diminishes the high degree of autonomy enjoyed by the HKSAR.”
Held, upholding the judgment below and dismissing Xs’ appeals, that:
- The courts were entitled to and must approach the BL as a “living instrument” in determining the constitutionality of the Ordinance, which was a novel matter not envisaged when the BL was promulgated. In doing that, the courts were still guided and bound by the purpose of the BL and the relevant articles, and its language in light of its context. The Judge did not overly rely on the concept of “living instrument” in holding that the Ordinance was constitutional. The Judge had regard to the context and the purpose of the BL, namely, to maintain and preserve Hong Kong’s distinct system under the “one country, two systems” principle, and for the reasons he gave, ruled that it was not violated by the Ordinance, before he observed that reading the BL as having the effect of prohibiting the Co-location Arrangement, which advanced HKSAR’s overall interests, would be a failure to treat the BL as a “living instrument” (State v Zuma 1995 (4) BCLR 401, Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, Matadeen v Pointu  1 AC 98, Cheng Kar Shun v Li Fung Ying  2 HKLRD 555, W v Registrar of Marriages (2013) 16 HKCFAR 112, Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association  5 HKLRD 542, ZN v Secretary for Justice  3 HKLRD 778, ZN v Secretary for Justice (2020) 23 HKCFAR 15 applied).
- The NPCSC Decision, which was a decision on a subject matter lying at the interface of the two systems, had legal effect and was binding on governmental authorities in the Mainland. As a matter of Mainland law, it was also binding on the HKSAR. The question of whether such a decision was binding as a matter of Hong Kong law would be left open to another occasion in light of the submissions before the Court.
- The NPCSC Decision carried highly persuasive weight in the HKSAR court’s construction of the BL. First, a decision of the NPCSC that an arrangement conformed with the BL, was as a matter of Mainland law, final. That crucial fact must be accepted by HKSAR courts when approaching constitutional challenges that the subject matter contravened the BL. Second, where the Court of Final Appeal, subject to the “necessity condition”, made a referral to the NPCSC for interpretation, in all probability, the NPCSC, would give the same answer in its interpretation having consulted with the Basic Law Committee. That did not however, abdicate the courts’ constitutional duty to decide whether the Ordinance contravened the BL. Further, the NPSC Decision could not be approached as ordinary post-enactment extrinsic materials for the purpose of the construction exercise because it went far beyond shedding light on the context and purpose of construing the BL (Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 applied; Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 considered).
- The deeming provision in the Ordinance rested on sound legal footing for the following reasons: (i) it proceeded on the well-established legal notion that in the context of modern transport and communication, a distinction may be drawn between territorial boundary and legal jurisdiction, which depending on the circumstances, was not necessarily co-extensive; (ii) it gave effect to the purpose of the Ordinance, and no more; (iii) the Court gave full weight to the NPCSC Decision confirming that the Ordinance, including the deeming provision, conformed with the BL. Therefore, in terms of constitutional purpose and context, given its specific purpose, unique characteristics, and limited applicability in terms of geographical location and classes of individuals, in deeming the Mainland Port Area as an area lying outside the HKSAR and lying within the Mainland for the purpose of applying the Mainland law and jurisdiction except for the reserved matters, the Ordinance did not contravene BL18 and BL19. The Ordinance did not diminish the high degree of autonomy enjoyed by the HKSAR as authorised by the National People’s Congress. It did not impermissibly allow the Mainland system to pass the demarcation line between the two systems zealously guarded by the BL and encroach upon the Hong Kong system. That conclusion was further supported by the coherence principle, under which the BL must be read in a harmonious and congruous way (Sino Wood Investment Ltd v Wong Kam Yin (2005) 8 HKCFAR 715, Chu Woan Chyi v Director of Immigration (HCAL 32/2003,  HKEC 553), Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59, Kwok Cheuk Kin v Director of Lands  1 HKLRD 737 applied; Crotty v An Taoiseach  2 CMLR 666, Boumediene v Bush 553 US 723 (2008) distinguished).
- The constitutionality of the Ordinance was to be determined primarily by a proper construction of the BL. If the relevant provisions of the BL were engaged, the Ordinance would clearly satisfy the proportionality test and its constitutionality would also be upheld on this ground (Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 applied).
These were appeals against the judgment of Anderson Chow J holding that the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (Cap.632) was constitutionally compliant (see  1 HKLRD 292).