Leave for JR granted against the Secretary of the Southern District Council

On 3 March 2021, the CFI granted leave to the Chairman of the Southern District Council (the “Chairman“) against the Secretary of the Southern District Council (the “Secretary“) over the latter’s decision not to circulate the papers or circulate and/or keep proper records in relation to Item 10 on the approved agenda of the 5th meeting of the Southern District Council (“Item 10“)  held on 2 July 2020 (the “Meeting“). See Lok Kin Hei, Chairman of the Southern District Council v The Secretary of the Southern District Council [2021] HKCFI 500.

Item 10 is entitled, “Request for Information on Cases Involving Mentally Incapacitated Persons Handled by the Southern Police Division”.    Shortly prior to its proposal, a suspected case of assault and criminal damage had occurred in Tin Wan giving rise to concerns about the frontline police officers’ handling of mentally incapacitated persons (“MIP“). The Secretary expressed objection to the inclusion of Item 10 on the basis that it concerned territory-wide issues and was not simply a matter at district level.

Nevertheless, the Chairman approved the inclusion of Item 10.  The Secretary then refused to circulate papers relevant to Item 10 ahead of the Meeting.  During the Meeting, the Secretary and other government representatives walked out when Item 10 was discussed.  In the circumstances, the Secretary failed to keep minutes of the discussion of Item 10 or upload an audio recording of that part of the Meeting onto the internet.

In giving judgment, Anderson Chow J first set out the statutory framework governing the work of the District Council as provided under the Basic Law and the District Councils Ordinance (Cap 547).

In granting leave to apply for JR, Chow J was of the view that it was,

“… reasonably arguable that a matter which affects the well-being of the people in a given District, or relates to the provision of public services within that District within the meaning of s 61(a)(i) or (ii) does not cease to do so merely because it is, or may also be, relevant to other parts of Hong Kong, or concerns territory-wide issues.”

Further, it was held that even if the Government was under no duty to consult District Councils, it does not follow that the Secretary is at liberty to act contrary to her duties under the Ordinance.

 

Nigel Kat SC represented the Chairman, with Azan Marwah and Joshua Baker, instructed by Ho, Tse, Wai & Partners.

 

The full decision can be accessed here.