The Invisible Constitution in Comparative Perspective

Leung Kwok Hung v. President of Legislative Council of the HKSAR, HCAL 87/2006; Raza v. 

Chief Executive of the HKSAR [2008] 3 HKLRD 561; Society for the Protection of the Harbour 

v. Chief Executive in Council (No 2) [2004] 2 HKLRD 902.

61 

Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4.

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Behind the Text of the Basic Law 

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are distinct constitutional roles and areas of competence for each of the three 

branches of Government so that the courts should afford deference to the 

other two branches of Government in exercising their powers of constitutional 

scrutiny. We will come back to this point in the next section.

Third, the courts would be reluctant to interfere with the internal oper-

ation of the Legislative Council. There were a number of occasions where 

the exercise of powers of the Legislative Council was challenged, not only 

by members of the public, but also by members of the Legislative Council. 

In Chim Pui Chung v. President of Legislative Council, a legislator who was 

convicted and sentenced to three years’ imprisonment challenged the order 

of the President of the Legislative Council to put on the agenda a motion 

to disqualify him under Article 79(6) of the Basic Law on the ground that 

‘conviction’ and ‘sentence’ under Article 79(6) referred to a final order of 

conviction and sentence after the appeal has been exhausted.

62

 The applica-

tion was refused without entering into the question of jurisdiction. In Leung 

Kwok Hung v. Clerk to the Legislative Council, the applicant, who was newly 

elected to the Legislative Council, applied for a declaration that he was free 

to devise his own form of oath of office so long as the essence of the original 

oath was retained.

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 His application for leave was refused on the ground that 

the legislation did not permit a departure from the statutory language of the 

oath without again entering into the question of jurisdiction. In another case 

of  Leung Kwok Hung v. President of the Legislative Council, the applicant 

challenged the ruling of the President of the Legislative Council to disallow 

him to move an amendment on the basis that it has the object or effect of 

disposing of or charging part of the revenue.

64

 He invited the court to grant 

a declaration that the relevant Rule of the Legislative Council contravened 

Article 73(1) of the Basic Law. The application failed on the ground that the 

remedy was not reasonably arguable. It was noteworthy that the court was 

not invited to intervene in any internal procedure of the Legislative Council 

or to pronounce on the legality of the decision of the President. Hartmann J 

sounded the caution that while the court has jurisdiction to intervene, this 

jurisdiction, having regard to the doctrine of separation of powers and the 

sovereignty of the Legislative Council under the Basic Law, should only be 

exercised in a restrictive manner.

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In Cheng Kar Shun v. Li Fung Ying, the applicant, who was a major real 

estate developer, challenged the power of a committee of the Legislative 

62 

[1998] 2 HKLRD 552.

63 

HCAL 112/2004.

64 

[2007] 1 HKLRD 387.

65 

Ibid.

, 397, para 31.

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