On 11 June 2021, the Court of Appeal held that the Co-Location Arrangement at the West Kowloon Station (“WKS”) of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link is constitutional.
A total of five judicial review proceedings were brought against the government with respect to the said arrangement, with major complaints focusing on Articles 18, 19, Chapter III and Article 80 of the Basic Law.
The Court formulated the question as “Whether except for the reserved matters as defined, in deeming the Mainland Port Area at the West Kowloon Station 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 articles 18 and 19 of the Basic Law (BL 18 and BL 19), thereby infringing the basic policies of establishing the Hong Kong Special Administrative Region under the ‘one country, two systems’ principle; and diminishes the high degree of autonomy enjoyed by the HKSAR” (at §2). The Court answered the question negatively (at §108).
The Court refrained from holding on the question whether a decision made by the NPCSC on a subject matter lying at the interface of the two systems (such as the Decision dated 27th December 2017 approving the Co- Co-operation Arrangement between the Mainland and the HKSAR on the Establishment of the Port at the WKS for Implementing Co-location Arrangement), is binding as a matter of Hong Kong law (at §§65, 67). Rather, the Court held that the views expressed by the NPCSC in the said decision “carry a highly persuasive weight in the courts’ construction of the Basic Law” (at §69-70)
Ernest CY Ng acted for the Applicant in HCAL 1165/2018 (with Mr. Geoffrey Yeung), instructed by JCC Cheung & Co.
The full judgment is available here.