Tutorial 3 Worksheet (ConL2022) JT
Tutorial 3 Worksheet (ConL2022) JT
Tutorial 3 Worksheet (ConL2022) JT
DEPARTMENT OF LAW
TUTORIAL WORKSHEET 3
Preparation required
Question 1
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Luk Ka Cheung ¶29
Leung Kwok Hung Filibusting para 27, Lau Cheong para 101
BL 49-52, 73(9), 2, 90
Anti-mask CA ¶¶91-101
Question 2
“... Hong Kong does not have a political system with separation of three
powers. ... One should not simplistically believe that so long as executive,
legislative and judicial organs are separately established and there exist
checks and balances among them, then a political system practising
separation of three powers exists. ...
Given the nature and features of this regional political system, and given
the existence of the central authority’s power besides those of the
executive, legislature and judiciary of the HKSAR, the political system of
the usual separation of powers among three branches, which is often
established on the basis of a full mode of power of a sovereign state, is at
most only of referencing and consulting value to the HKSAR, but not
completely applicable to the HKSAR. ...
Question 3
Why was there a difference in opinion between the CFI (on the one hand)
and the CA and CFA (on the other hand) regarding the constitutionality
of the ERO? Which opinion do you think is more persuasive?
[Note: For the purpose of this question, you need not consider or discuss
the legal issues concerning whether the Prohibition on Face Covering
Regulation or any part thereof is invalid because it imposes excessive
restrictions on rights and fails to satisfy the “proportionality test”.]
CFI para 97
Question 4
See Fok Chun Wa CFA ¶75, ICCPR reservation and BL 68, universal
suffrage in a gradual and orderly progress
Question 5
Explain the constitutional or legal issues raised by the Chan Yu Nam case,
the arguments of both sides on these issues, and the reasoning of the
Court of Appeal in reaching its decision in this case. Do you agree with
the court’s decision?
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The CA puts emphasis on the theme of continuity and look at the pre-
1997 election methods and post 1997 until the year of the hearing (i.e.
2010), the reservation of universal suffrage at ICCPR, BL 45 and 68,
Annex II of the BL which expressly mentioned the corporate bodies.
Question 6
In Cheng Kar Shun v Li Fung Ying [2009] 4 HKC 204, Cheung J (as he
then was) said (at para. 220 of his judgment):
“ ... the courts of the Hong Kong Special Administrative Region do not,
as a rule, interfere with the internal working of the legislature.
Exceptionally, where questions of whether the Legislative Council, in
going about its business, has acted in contravention of the provisions of
the Basic Law arise, the courts do have jurisdiction to intervene. But the
jurisdiction must be exercised with great restraint, having regard to the
different constitutional roles assigned under the Basic Law to different
arms of the government.”
Explain the rationale behind the legal principle stated above, and discuss
how it has been applied in the case law of the HKSAR.
Question 7
How has the case of Leung Kwok Hung v President of the Legislative
Council (No 1) (2014) 17 HKCFAR 689 delineated the constitutional
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relationship between the courts and the legislature of Hong Kong? Is
there any inconsistency between this Leung Kwok Hung case and the
“oath-taking case” of Chief Executive of the HKSAR v President of the
Legislative Council and Leung Chung Hang (HCAL 185/2016, 15 Nov
2016; CACV 224/2016, 30 Nov 2016; FAMV 7/2017, 25 Aug 2017)?
Question 8
Disqualifying Chow Ting and Lau Siu Lai and other intended legco
candidates
In Lau Siu Lai, the appeal committee of the CFA implicitly agreed that
the Declaration requirement is a substantive requirement. The Court has
to decide the question of whether the intended candidate genuinely and
truly intended to uphold the Basic Law and pledge allegiance to the
HKSAR (para 15).
Question 9
October 2022
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