案例名称 HKSAR v MA WAI KWAN

案例名称HKSAR v. MA W AI KWAN, David AND OTHERS审理法院Court of Appeal of the High Court案件类别Reservation of Question of Law受理日期判决日期1997.07.29HKSAR v. MA WAI KWAN, David AND OTHERSCAQL000001/1997IN THE HIGH COURT OF THE HONG KONGSPECIAL ADMINISTRATIVE REGIONCOURT OF APPEALReservation of Question of Law No. 1 of 1997BetweenHKSAR ApplicantANDMA WAI-KWAN, David,RespondentsCHAN KOK-WAI, Donnyand TAM KIM-YUEN__________Coram: The Hon Chan, Chief Judge, Nazareth V-P and Mortimer V-PDates of Hearing: 22, 23, and 24 July 1997Date of Judgment: 29 July 1997----------------------J U D G M E N T----------------------Chan, Chief Judge :Background1. The respondents are the three defendants in a criminal trial before the Court of First Instance. They were charged on 11th August 1995 with conspiracy to pervert the course of public justice, contrary to common law. It is alleged that between 12th and 29th June 1995, the three respondents conspired together by offering to pay money to the mother of a Mr Wong who was then charged with robbery before the District Court together with the 3rd respondent and another person. It is further alleged that the purpose of offering money to the lady was to serve as a reward for her son Mr Wong pleading guilty to a lesser offence and maintaining a false version of events which would favour the 3rd respondent and the other person. They were committed for trial in the then High Court after a preliminary inquiry which took several days in December 1996. On 3rd January 1997, Indictment No.1 of 1997 was filed against them. The 3rd respondent also faced an alternative charge of attempting to pervert the course of public justice.2. The trial was fixed for hearing on 16th June 1997. The first few days were spent on sorting out prosecution witness statements and other documents. On the fifth day of the trial, the 2nd respondent applied for a permanent stay of the criminal proceedings. This lasted several days. On 27th June 1997, the last working day before 1st July, the trial judge, Deputy Judge Lugar-Mawson, refused to stay the proceedings.3. On 3rd July 1997, the tenth day of the trial, the respondents took issue on the Reunification Ordinance, the Basic Law and the preservation of the common law. On 7th July 1997, which was the twelfth day of the trial, the three respondents were, with their consent, arraigned on an amended indictment which was filed on 19th June 1997. They all pleaded not guilty to the first count of conspiracy to pervert the course of public justice. The alternative count against the 3rd respondent was directed by the Court to be put on file, not to be proceeded with without the leave of the Court. The respondents then applied to the Deputy Judge to quash the Amended Indictment. The prosecution opposed this application and applied to reserve certain questions of law for the determination by the Court of Appeal pursuant to section 81 of the Criminal Procedure Ordinance, Cap.221. There was no objection from the respondents. The Deputy Judge made the order.4. On 9th July 1997, at a hearing for directions before us, we drew the parties' attention to s.81 of Cap 221 which provides that the questions of law reserved for this Court must be on matters arising from the trial. On the following day, the parties went before the Deputy Judge. His order was amended, apparently with the consent of all parties. This is now before this Court. Representation of the parties5. I should mention that since the questions of law to be determined by this Court involve some important constitutional issues, we requested the Director of Legal Aid to brief leading counsel for the 3rd respondent. However, as it turned out, the Director decided not to do so and was prepared only to instruct junior counsel to hold a watching brief. Pursuant to our directions, counsel for the 2nd respondent filed his skeleton arguments on the questions of law to be decided. Counsel for the 1st respondent indicated that he would adopt those submissions.6. On the first day of this hearing, counsel for both the 2nd and 3rd respondents informed us that they had no instructions to act for their clients because of lack of funds. They asked to be released from the case. We gave leave to the solicitors to withdraw but invited both counsel to stay and make submissions on the issues before the Court. They agreed to do so. In the afternoon, Ms Gladys Li, SC, Miss Margaret Ng and Mr Paul Harris appeared before us and offered to assist the Court on the issue of the legality of the Provisional Legislative Council. Counsel for the2nd and 3rd respondents were willing to be led by this team in view of the importance of the issue involved. We readily extended our invitation to Ms Li, SC, and her team. We are most grateful for their assistance.The two questions of law7. There were initially five questions of law for the determination of this Court stated in the Motion issued by the prosecution and the Order made by the Deputy Judge. I am given to understand that they were framed in order to cover the grounds relied on by the 2nd respondent in his application to quash the Amended Indictment. Having reconsidered the matter, the prosecution decided to pose only two questions for determination. They are :(1) Is the offence at common law of conspiracy to pervert the course of public justice part of the laws of the Hong Kong Special Administrative Region ("HKSAR")?(2) Are the accused liable to answer to and to be tried on count 1 of the Indictment No.1 of 1997 ? Survival of the common law8. It is the respondents' contention that the common law has not survived the change of sovereignty on 1st July 1997. Their main submission is that the Basic Law, in particular Article 160, provides that the laws previously in force in Hong Kong which include the common law, rules of equity, ordinances, subordinate legislation and customary law shall be adopted. They argue that it is necessary to have a positive act of adoption either by the National People's Congress (NPC) through its Standing Committee and/or the legislature of the HKSAR. It is submitted that there was no valid adoption of these laws by the NPC or its Standing Committee and that the legality and competence of the Provisional Legislative Council is in doubt. Furthermore, the NPC Standing Committee had "repealed" the Application of English Law Ordinance (Cap 88) as contravening the Basic Law. As a result, the common law has not survived the change of sovereignty and there is no common law in Hong Kong after 1st July.9. Leading counsel for the Government submits that under the Basic Law itself, the common law forms part of the laws of HKSAR. No formal act of adoption of the law previously in force is necessary. A decision is required only to declare which of the laws that are in contravention of the Basic Law are not to be adopted. In any event, the NPC Standing Committee had indeed adopted all the laws previously in force which are not in contravention of the Basic Law. The Reunification Ordinance has not adopted or purported to adopt the common law since that Ordinance was enacted on the basis that the laws previously in force have already been adopted. Counsel submits that the NPC decision not to adopt the Application of English Law Ordinance does not affect the maintenance of the common law in Hong Kong.10. The answer to the question whether the common law has survived the change of sovereignty depends on whether the laws previously in force in Hong Kong are automatically adopted upon the establishment of the HKSAR on 1st July 1997 or whether it is necessary to have an overt act of adoption of such laws and if so, whether there has been any valid adoption. This turns on an interpretation of the provisions of the Basic Law.Interpretation of the Basic Law11. Before one attempts to interpret the Basic Law, it is necessary to bear in mind the history, nature and purpose of this document.12. On 19th December 1984, the Joint Declaration was signed between the Government of the People's Republic of China (PRC) and the Government of the United Kingdom. By this Joint Declaration, Hong Kong was to be restored to China with effect from 1st July 1997. Under Article 3 of the Joint Declaration, China declared certain basic policies regarding Hong Kong. There was to be established the HKSAR which would enjoy a high degree of autonomy. Under Article 3(12), these basic policies would be stipulated in a Basic Law to be promulgated by the NPC and would remain unchanged for fifty years from 1st July 1997. These policies were further elaborated in Annex I to the Joint Declaration. The Basic Law for the HKSAR was drafted by the Drafting Committee of the Basic Law which consisted of members from China and from Hong Kong. It took many years to complete. It was promulgated on 4th April 1990 and was to take effect from 1st July 1997.13. The Basic Law is not only a brainchild of an international treaty, the Joint Declaration. It is also a national law of the PRC and the constitution of the HKSAR. It translates the basic policies enshrined in the Joint Declaration into more practical terms. The essence of these policies is that the current social, economic and legal systems in Hong Kong will remain unchanged for 50 years. The purpose of the Basic Law is to ensure that these basic policies are implemented and that there can be continued stablity and prosperity for the HKSAR. Continuity after the change of sovereignty is therefore of vital importance.14. Mr Fung, SC, for the Government submits that a generous and purposive approach is to be adopted in the interpretation of the Basic Law since it is a constitutional document. See A.G. of Gambia v. Jobe[1984]AC 689 and R. v. Sin Yau-ming[1992] 1 HKCLR 127. While I agree with this as a general proposition, I would add a few words of caution. The Basic Law is a unique document. It reflects a treaty made between two nations. It deals with the relationship between the Sovereign and an autonomous region which practises a different system. It stipulates the organisations and functions of the different branches of government. It sets out the rights and obligations of the citizens. Hence, it has at least three dimensions : international, domestic and constitutional. It must also be borne in mind that it was not drafted by common law lawyers. It was drafted in the Chinese language with an official English version but the Chinese version takes precedence in case of discrepancies. That being the background and features of the Basic Law, it is obvious that there will be difficulties in the interpretation of its various provisions. (See the discussions in Hong Kong's New Constitutional Order, Yash Ghai, Chapter 5.) In my view, the generous and purposive approach may not be applicable in interpreting every article of the Basic Law. However, in the context of the present case which involves the constitutional aspects of the Basic Law, I agree that this approach is more appropriate.Relevant provisions in the Basic LawThe provisions15. The provisions in the Basic Law which are relevant to the issue of whether the common law has survived the change of sovereignty are as follows :"Article 8The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.Article 18The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.Article 19The Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication.The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.Article 81The Court of Final Appeal, the High Court, district courts, magistrates' courts and other special courts shall be established in the Hong Kong Special Administrative Region. The High Court shall comprise the Court of Appeal and the Court of First Instance.The judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the establishment of the Court of Final Appeal of the Hong Kong Special Administrative Region.Article 87In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.Article 160Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People's Congress declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law.Documents, certificates, contracts, and rights and obligations valid under the laws previously in force in Hong Kong shall continue to be valid and be recognized and protected by the Hong Kong Special Administrative Region, provided that they do not contravene this Law.(my emphases)16. These are the provisions with regard to the laws which are to be in force, the judicial system which are to be in place and the principles relating to legal proceedings which are to be applied in the HKSAR.Its intention17. In my view, the intention of the Basic Law is clear. There is to be no change in our laws and legal system (except those which contravene the Basic Law). These are the very fabric of our society. Continuity is the key to stability. Any disruption will be disastrous. Even one moment of legal vacuum may lead to chaos. Everything relating to the laws and the legal system except those provisions which contravene the Basic Law has to continue to be in force. The existing system must already be in place on 1st July 1997. That must be the intention of the Basic Law.Its wording18. The wording is equally clear. The Basic Law is the constitution of the HKSAR. It is the most important piece of law in the land. It states clearly what the position is as from 1st July 1997. In my view, the word "shall" in these provisions can only be used in the mandatory and declaratory sense. The meaning of these provisions is this. On 1st July 1997 when the HKSAR comes into existence and the Basic Law comes into effect, these are to be the laws and legal system in force and the principles applicable in the place. There is no express or implied requirement in any of these provisions that the laws previously in force or the legal system previously in place need to be formally adopted before they can continue to be applicable after the change of sovereignty. On the contrary, the use of the terms "shall be maintained", "shall continue" and "shall be" leaves absolutely no doubt in my mind that there can be no question of any need for an act of adoption. These terms are totally inconsistent with such a requirement.Article 16019. The respondents' argument is based mainly on Article 160 which uses the words "shall be adopted". It is suggested that "shall" in this term is used in the future tense. In my view, that provision cannot be read in isolation but must be considered in the light of the rest of the Basic Law including in particular the articles to which I have referred above. It cannot be construed to have a meaning which is inconsistent with the other articles relating to the adoption of the existing laws and legal system.20. In any event, Article 160 even on its own has the same theme as the other provisions. There is a sense of continuity in this article. In the first paragraph of this article, it is provided that any laws which are later to be found to be in contravention of the Basic Law shall be amended or cease to have force. Laws which have not yet come into force cannot cease to have force. In my view, this paragraph clearly indicates that the laws previously in force in Hong Kong are to be effective on 1st July 1997 without any act of adoption. Paragraph 2 of that article puts the matter beyond argument. It provides that documents, certificates, contracts, rights and obligations valid under the laws previously in force shall continue to be valid. How can these continue to be valid if the laws which govern their validity cannot even apply without an act of adoption ? It simply makes no sense that the Basic Law continues the validity of these documents,certificates, contracts, rights and obligations but requires the laws which upholds them to be adopted.21. I would also agree that apart from confirming that the laws previously in force are to be the laws of the HKSAR at the time the Region comes into existence, the purpose of Article 160 is to provide for the exclusion of laws which are later found to be in contravention of the Basic Law.22. Construing Article 160 either by itself or in conjunction with the other articles, I am firmly of the view that it does not have the effect of requiring the laws previously in force in Hong Kong to be formally adopted in order to be effective after 30 June 1997. In fact, no other article in the Basic Law has such effect.Joint Declaration23. I find support for this view in the provisions in the Joint Declaration which can be used as an aid to the interpretation of the Basic Law. Article 3 provides:"Article 3(3)The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged.Article 3(12)The above stated basic policies of the People's Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, by the National People's Congress of the People's Republic of China, and they will remain unchanged for 50 years."24. It is quite clear that the Joint Declaration is a declaration of intent. It evinces the intention of the two Governments and refers to what is to happen in future. Hence the future tenseis used. Contrast Annex I to the Joint Declaraion which was to form the basis of the Basic Law. The first paragraph in Section II says :"After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature. (my emphasis) 25. The wording is in line with Article 8 of the Basic Law. The inevitable conclusion is that "shall" is not used in the future sense but in the mandatory and declaratory sense.Chinese text26. Mr Fung, SC, for the Government draws our attention to the fact that the Basic Law was enacted in the Chinese language by the PRC and that the Chinese text prevails over the English version in case of discrepancies. When the relevant articles in the Chinese text are considered, there can be no doubt as to what they mean or are intended to mean. The Chinese characters "采用 cai yong" (meaning "adopt") in Article 160 are clearly used in the mandatory and declaratory sense. They do not admit of an interpretation which requires a future act of adoption before the laws previously in force are to be applicable after 1st July 1997. However, I do not think it is necessary to rely on the Chinese text at all. The English text is already quite clear and without ambiguity. Adoption by NPC Decision27. It is submitted on behalf of the respondents that the NPC saw fit to make a Decision on 23rd February 1997 which purported to adopt the laws previously in force. This, it is argued, suggests that it is necessary to have an act of adoption before such laws can become effective after 1st July 1997. In my view, this argument cannot be sustained in the light of the purpose and contents of that Decision.28. The Decision on 23rd February 1997 was made for the expressed purpose of exercising the NPC's right under Article 160 of the Basic Law to declare which laws previously in force contravenethe Basic Law and are thus excluded from operation after 1st July 1997. The title of the Decision refers to the treatment of laws in accordance with Article 160 and begins with a recital of the relevant part of that article. The reference to Article 8 in fact reinforces the view that the laws previously in force in Hong Kong will automatically become effective as the laws of the HKSAR except for those that contravene the Basic Law. It also supports the view that Article 160 must be read in conjunction with Article 8.29. Under Paragraph 1 of the Decision, the laws previously in force in Hong Kong are adopted as the laws of the HKSAR. Paragraph 2 refers to those laws which are considered as contravening the Basic Law and therefore not to be adopted when the HKSAR comes into existence. It is also significant to note paragraph 4 which refers to the laws "which have been adopted".30. In my view, this Decision is clear enough. It adopts the laws previously in force in Hong Kong as the laws of the HKSAR when it comes into existence on 1st July 1997. This is strictly speaking not necessary in the light of the clear provisions in the Basic Law. But since it purports to declare invalid those laws which contravene the Basic Law (as it does), it is natural that it also, for the sake of clarity, refers to the laws which are to be adopted on 1st July 1997. Application of English Law Ordinance31. The respondents submit that the Application of English Law Ordinance provided a new basis for the application of the English law and the "repeal" of this Ordinance "throws in doubt the precise scope of the common law to be applied in Hong Kong". I do not agree.32. English law which includes the common law has started to apply in Hong Kong since at least 1844 when the previous Supreme Court Ordinance was enacted. That Ordinance was replaced by the Application of English Law Ordinance in 1966. The 1966 Ordinance did not import the English law. Nor did it terminate the application of English law which was applied by virtue of the previous Supreme Court Ordinance and then re-apply the English law all over again. It continued the application of the English law. Its effect was, as its long title indicated, "to declare the extent to which English law is in force in the Colony". It set out clearly the restrictions in the application of English law in Hong Kong and listed those imperial acts which were still in force.The reasons for the non-adoption of this Ordinance by the NPC Standing Committee are obvious. The Basic Law has already adopted the laws previously in force. Further, that Ordinance referred to imperial acts which are either not applicable to the HKSAR any more or have been "localised". In other words, that Ordinance is not only no longer necessary, it also contravenes the Basic Law by its incorporation of imperial acts.33. I do not think the non-adoption of the Application of English Law Ordinance has cast any doubt on the continued application of the common law in the HKSAR.Cut-off date34. It is submitted by the respondents that there is an uncertainty in the cut off date of the laws previously in force. They query whether it should be the date of the Joint Declaration in 1984 or the date of the promulgation of the Basic Law in 1990 or 30th June 1997. The relevance of this relates to the common law offence of conspiracy (with which these respondents now face) which was abolished by the Crimes (Amendment) Ordinance 1996.35. With respect, this point is beyond argument. The cut off date cannot be the date of the Joint Declaration. It was only a treaty and a declaration of intent. It cannot be the date of the promulgation of the Basic Law since it was then stated to take effect on a future date. The Basic Law came into effect on 1st July 1997. It declares in Article 8 and other provisions that the laws previously in force and the existing legal system are adopted. The only logical and in fact proper conclusion is that 30th June 1997 is the cut off date.36. The respondents are alleged to have committed a conspiracy in June 1995 and they were charged in August 1995. That is one year before the enactment of the Crimes (Amendment) Ordinance 1996. It is clear that the charge is not affected by that amendment. (See s.159E(7)).Survival of the Indictment37. The respondents contend that they are not liable to answer to and be tried on the Amended Indictment. The arguments are as follows. The respondents were committed for trial before theresumption of sovereignty. The Indictment was also filed before that date. The Supreme Court before which they appeared had ceased to operate as from 1st July 1997. They should not now be tried before the Court of First Instance of the HKSAR which is not a properly constituted court and the proceedings which were commenced before the resumption of sovereignty cannot be continued. They argue that the reason is because there is no express provision in the Basic Law governing this situation and although there are provisions in the Reunification Ordinance, that Ordinance was not lawfully and validly enacted by a body competent in law to enact it.38. The answer to these arguments is simple. There are clear and express provisions in the Basic Law. The laws previously in force are adopted (Articles 8 and 18). The courts of the HKSAR have jurisdiction over all cases in the Region (Article 19). The judicial system except the renaming of the Supreme Court and those changes consequent upon the establishment of the Court of Final Appeal is maintained (Article 81). The principles previously applied and the rights previously enjoyed by parties to criminal and civil proceedings are maintained (Article 87). Under Article 160, documents and rights and obligations valid under the laws previously in force continue to be valid, recognised and protected. Adopting a purposive approach to Article 160, these clearly, in my view, cover indictments, the right of the Government to prosecute offenders and the obligation of an accused person to answer to the allegations made against him.39. I have no doubt that by virtue of the above provisions of the Basic Law, the Amended Indictment survives and the pending criminal proceedings against these respondents continue after the change of sovereignty.40. The above reasons are sufficient to dispose of the two questions of law reserved for the determination of this Court. The answers to these questions are both clearly in the affirmative.41. However, in case I am wrong in my interpretation of the Basic Law, I should deal with the other issues which have been raised in argument. I would also do this out of respect to counsel who have so comprehensively prepared their submissions and because of the public concern which has been generated by this important case. I take note of Ms Li, SC's concern over the risk of。