THE UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW

LLB CONSTITUTIONAL LAW (LLAW 2001)

EXAMINATION (2021-2022) |

Date: 11 Dec 2021 (Saturday)

Time: 2:30 PM - 4:45 PM (inclusive of a 15-minute reading

period)

Instructions:

Lk; This paper consists of seven pages (including this page) and four
questions. You have to answer TWO questions.

2. Section A: Please choose either Question 1 or 2.

3. Section B: Please choose either Question 3 or 4.

4. Please answer each question in a separate answer book.

5. You should write your university number on the front cover of each
answer book you use. Please also write the question number of each
question you answer in the box at the bottom of the front cover.

6. Reading Period: The examination consists of a 15-minute reading

period followed by a 2 hour writing period. During the reading
period, you may NOT write on your answer book. You may however
make notes on the question paper.

7. Materials allowed: This is an OPEN BOOK examination. You may

bring in any printed/ written material (but not any computer, phone
or other electronic device).

8. This examination counts for 66.66% of the final grade in the course.

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SECTION A

QUESTION 1
political system of the
There has been an ongoing debate on whether the
whether the doctrine of
HKSAR is an “executive-led” political system or
Do the following cases
“separation of three powers” is applicable to it.
answer in detail:
throw any light on this question? Please explain your
Council [2007] |
(a) Leung Kwok Hung v President of Legislative
Law);
HKLRD 387 (a case regarding Article 74 of the Basic
e Council (No. 1 )
(b) Leung Kwok Hung v President of the Legislativ
(2014) 17 HKCFAR 689 (the “filibuster” case); and

[2020] HKCFA 42
(c) Kwok Wing-hang v Chief Executive in Council
ted to discuss
(the case of the “anti-mask regulation”). You are expec
to assist your
the Court of Final Appeal’s decision in this case, but
ges in the Court
understanding of this decision, some relevant passa
provided in the
of Appeal’s judgment [2020] HKCA 192 have been
not available
Appendix below (as this Court of Appeal judgment is
on the Moodle page of this course).

APPENDIX
Wing-hang v Chief
Extract from judgment of the Court of Appeal in Kwok
Executive in Council [2020] HKCA 192

is very
02. First, under the design of the BL, the Government
observation of Sir
much an executive-led government (BL59-65): see the
in Developing the
Anthony Mason in The Place of Comparative Law
Hong Kong (2007)
Jurisprudence on the Rule of Law and Human Rights in
of the HKSAR
37 HKLJ 299, at p.304. The CE is constituted the head
particular BL48.
(BL43) and enjoys wide and extensive powers: see in
e powers.
However, the CE simply does not have general legislativ

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 Oo. In sum, the constitutional arrangement under the Basic Law
(BL) for the exercise of legislative power broadly resembles the past before
1 July 1997. The LegCo is the only institution vested with general
legislative powers exclusively. Neither the CE nor, for that matter, other
branches of the Government has the general power to legislate. dn
exercising its functions and powers, the LegCo is bound by the BL and
other constitutional requirements. Within the constitutional confines and
under the common law principle of separation of powers, the LegCo is
autonomous. Like the Pre-97 LegCo, the LegCo can under the common
law delegate its legislative powers to the CE and other branches of the
Government to make subordinate legislation by enacting specific enabling
ordinances. Correspondingly, that.is the limited extent to which the CE
and other branches of the Government can legislate. When a challenge is
made, the court can examine the constitutionality of the enabling
ordinance, and the constitutionality and vires of the subordinate legislation
made thereunder, as the case may be.

100. It follows that under the constitutional framework of the BL,

the LegCo can delegate to the CEIC legislative powers by way of an
enabling ordinance to make emergency regulations provided that they are
subordinate legislation. As we understand the parties’ submissions, they
do not differ on this point.

116. As we have explained, the Pre-97 LegCo was always subject

to the Letters Patent and other constitutional requirements. It was
“supreme” or, as what we would prefer, autonomous, within the
constitutional confines. That is the same for the LegCo [of the HKSAR].
It is subject to the Basic Law (BL) and all other constitutional requirements.
Under the constitutional arrangement in the BL and further based on the
common law doctrine of separation of powers, it is autonomous within the
constitutional confines. The reference to the South African case does not
take the analysis any further.

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QUESTION 2
prescribed in the
“The system of the special administrative region, as
Basic Law of the
Constitution of the People’s Republic of China and the
by the state for
HKSAR, is a special administrative system developed
nt exercises
certain regions. Under this system, the central governme
rnment has the
overall jurisdiction over the HKSAR...The central gove
autonomy in the
power of oversight over the exercise of a high degree of
HKSAR....

that the country

With China’s Constitution stipulating in clear-cut terms
system of socialism, the basic system, core
follows a fundamental
been explicitly
leadership and guiding thought of the “one country” have
ding the “one
provided for. The most important thing to do in uphol
security and
country” principle is to maintain China’s sovereignty,
l system and
development interests, and respect the country’s fundamenta
other systems and principles... .

constitute the
The Constitution of the PRC and the Basic Law together
the country,
constitutional basis of the HKSAR. As the fundamental law of
authority,
the Constitution, with supreme legal status and the highest legal
of China,
is applicable throughout the territory of the People’s Republic
|
including the HKSAR.”
‘One Country,
(State Council of the PRC, White Paper on “The Practice of the
Region”, June
Two Systems’ Policy in the Hong Kong Special Administrative
2014)

by the
To what extent does the actual exercise of powers over the HKSAR
Central
Central Authorities in 1997-2021 support the proposition that the
how
Authorities have “overall jurisdiction” over Hong Kong? Relatedly,
s
does such exercise of powers affect the nature and degree of Hong Kong’
nce to
autonomy? Discuss the above quote and questions with refere
most
‘nstances of such exercise of powers which you consider to be the
significant.

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SECTION B

QUESTION 3

Consider this hypothetical question:

In 2021, the Hong Kong Legislative Council decided to enact a Counter

Foreign Interference Ordinance (CFIO) to plug loopholes in the existing
HKSAR National Security Law.

Some of the key provisions of the CFIO are as follows:

Counter Foreign Interference Ordinance

i6.—(i) A Hong Kong Permanent Resident (X) commits an offence if

(a) X undertakes electronic communications activity that

involves publishing information in Hong Kong;

(b) X undertakes the electronic communications activity on

behalf of —
(i) a foreign principal; or
(ii) another person acting on behalf of a foreign principal;

and

(c) X intends that the electronic communications activity, or the

information published in Hong Kong, will influence another
person to undertake activity, or engage in conduct, in Hong
Kong that — .

(i) is or is likely to be prejudicial to public health, public

safety, public tranquillity or public finances; or
(ii) diminishes or is likely to diminish public confidence in
the performance of any duty or function of, or in the
exercise of any power by, the Government or a public
authority, or a part of the Government or public
authority. .

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 (2) Apperson who is guilty ofan offence under subsection (1) shall
be liable on conviction to a fine not exceeding $1 million
dollars or to imprisonment for a term not exceeding 14 years
or to both.

(3) For the purpose of subsection (1), “foreign principal” means

(a) a foreigner;
(b) a foreign government;
(c) a foreign government-related individual,
(d) a foreign legislature;
(e) a foreign political organisation; —
(f) a foreign public enterprise; or
(g) a foreign business.

Alice is a Hong Kong Permanent Resident. She runs a Non-Governmental

Organisation (NGO) that advocates for labour rights in Hong Kong, and
the NGO receives foreign funding.

Alice is deeply concerned that the operations of her NGO will be affected
by Section 16 of CFIO. Alice believes that her constitutional right to free
expression has been violated. She also believes that the law is
discriminatory as it only targets Hong Kong Permanent Residents. She has
since brought a judicial review action to challenge the CFIO.

The Court of First Instance (CFI) decided the case against Alice. It ruled
that (1) Section 16 of the CFIO satisfies the “prescribed by law”
requirement; (2) Section 16 of the CFIO is a proportionate restriction of
Alice’s right to free expression; and (3) Section 16 of the CFIO is a justified
restriction of her constitutional right to equality and there is no unlawful
discrimination against Hong Kong Permanent Residents.

Alice wants to appeal against the above three rulings by the CFI. Advise
her. \

Page 6/7
QUESTION 4

The courts of Hong Kong have deployed the principles of proportionality

and deference to assess claims of human rights violations. To what extent
have the Hong Kong courts used these principles in ways that enabled them
to strike the right balance between protecting individual rights on the one
hand, and respecting public authorities’ institutional and constitutional
competence on the other hand?

Discuss with reference to human rights cases that you have studied in this
course.

End of Paper

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