Move to ‘cede’ land to China at new rail station unconstitutional despite Beijing’s approval, court hears

The High Court has heard that the joint checkpoint mechanism at the new high-speed rail terminus is against Hong Kong’s Basic Law, as the legislature had no power to “create a small SAR [Special Administrative Region] within the Hong Kong SAR.”

Five people have filed judicial review applications asking the court to strike down the co-location law, which authorised the immigration facility at the recently opened West Kowloon terminal. Their arguments were heard together on Tuesday.

The joint checkpoint plan was passed into law in June amid widespread controversy, as well as opposition from democrats and the Hong Kong Bar Association. It involved effectively ceding land to China for what the government claimed was faster immigration procedures performed by mainland officials.

‘Surrendered’ jurisdiction

Barrister Martin Lee, representing student activist Hendrick Lui, said that the arrangement caused the “heaviest damage to One Country, Two Systems.”

He argued that Hong Kong had surrendered jurisdiction in parts of the terminus, and was contrary to China’s “basic policy towards Hong Kong” as stated in the Basic Law and the Sino-British Joint Declaration.

“Where can one find any provision that can even point to the possibility of creating a small SAR within the Hong Kong SAR? If any of my learned friends can say, I will sit down,” Lee said.

Barrister Hectar Pun, representing ousted lawmakers Baggio Leung and Leung Kwok-hung, added that the government had no authority to substitute local law with Chinese law in Hong Kong territory.

“It would not be permissible for the legislature make a law to disapply Hong Kong law to the Kowloon Walled City,” Pun said, in reference to the now-demolished area in Kowloon.

Both Lee and Pun pointed to Article 18 of the Basic Law, which states that national laws “shall not be applied in Hong Kong” except those listed in a specific annex.

2017 NPCSC decision

The judicial review applicants also downplayed the relevance of a decision made by the Standing Committee of the Chinese National People’s Congress (NPCSC) supporting the joint checkpoint. Last December, China’s top lawmaking body unanimously approved the joint checkpoint plan, and said that it was not in contravention with the Basic Law.

Lee and Pun argued that the NPCSC “decision” was not binding on Hong Kong courts – unlike an NPCSC legal “interpretation,” which has ultimate authority according to Basic Law Article 158.

“We look at it, we respect it, it might have effect in Chinese law… but we should not be dictated by a decision that does not form part of Hong Kong law,” Pun said.

The judicial review applicants and the government had filed separate expert opinions on the status of the NPCSC decision. Citing law professors Fu Hualing and Yash Ghai, Lee argued that it was unnecessary to “bow down before the emperor even arrived.”

Barrister Philip Dykes added that, under common law tradition, a “total ouster of jurisdiction” would not be permitted.

After hearing the arguments, Judge Anderson Chow asked the government to explain the nature and effect of the NPCSC decision, and asked if the joint checkpoint scheme could be applied to countries besides China.

The judicial review applicants included Hendrick Lui, Kwok Cheuk-kin, Baggio Leung and “Long Hair” Leung Kwok-hung. Zlato Ku Chun-hin withdrew his application during the hearing.

The government will make its case on Wednesday.