On 13 December 2018, the Court of First Instance 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 noted that it could be argued with considerable force that the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-Location) Ordinance (Cap 632) which sets out the arrangement is inconsistent with the Basic Law (at §66).
The Court, however, agreed with the government’s position that neither the establishment of a port for carrying out customs, immigration and quarantine clearance in the heart of the city (instead of at the boundary), nor the delineation of jurisdiction at such port for facilitating customs, immigration and quarantine clearance, is prohibited by the Basic Law (at §67). It further held that upon a fair reading of the Basic Law establishing a broad framework for the exercise of a high degree of autonomy by Hong Kong, it is open to the legislature of Hong Kong to enact the relevant ordinance to provide that the Mainland Port Area in the WKS shall be subject to the Mainland’s jurisdiction and Mainland laws. In other words, the relevant ordinance is consistent with the Basic Law (at §73).
The Court also held that it could admit the “Decision of the NPCSC on Approving 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” (27 December 2017) as relevant post-enactment extrinsic materials in aid of the construction of the Basic Law with high persuasive value in the particular circumstances of the case (at §74).
Ernest CY Ng acted for the Applicant in HCAL 1165/2018 (led by Philip Dykes S.C., and with Mr. Anson Wong and Mr. Geoffrey Yeung), instructed by JCC Cheung & Co.
The full judgment is available here.