立法會

Legislative Council

(只透過電郵發放 ) 立法會CB(3) 844/17-18號文件

檔 號 ： CB(3)/A/42 電 話 ： 3919 3302 日 期 ： 2018年9月10日 發文者 ： 立法會秘書 受文者 ： 立法會全體議員

原訟法庭就兩宗與立法會於2018年 6月 14日通過的 《廣深港高鐵 (一地兩檢 )條例草案》有關的中期濟助申請

所作決定

(HCAL 1160/2018及HCAL 1165/2018)

經立法會主席同意，現附上下列文件供議員參閱： (a) 上述決定 (只備英文本 )(附錄 1)；及 (b) 秘書處法律事務部就上述決定擬備的摘要 (中文及

英文本 ) (附錄2)。 立法會秘書

(黃少健代行 ) 連附件

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

HCAL 1160 & 1165/2018 [2018] HKCFI 1869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1160 OF 2018

BETWEEN

梁頌恆 Applicant

and

立法會主席 Putative Respondent

and

律政司司長 Putative Interested Party

AND IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1165 OF 2018 _______________

BETWEEN

郭卓堅 Applicant

and

香港特首林鄭月娥 Putative Respondent

_______________ (Heard together)

附錄 1 Appendix 1 (只備英文本 English version only)

- 2 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

Before: Hon Chow J in Chambers (Open to Public) Date of Hearing: 10 August 2018 Date of Decision: 14 August 2018

INTRODUCTION

1. In the Form 86 dated 21 June 2018 filed in HCAL 1160/2018,

Mr Leung challenges the following “decision” of the Legislative Council

of the HKSAR (the “Legco”):-

“立法會於 2018 年 6 月 14 日通過《廣深港高鐵 (一地

兩檢) 條例草案》 (下稱一地兩檢草案) 的表決” (the passing of the motion for the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill by the Legislative Council on 14 June 2018).

The President of the Legco (the “Legco President”) is named as the

Respondent and the Secretary for Justice is named as the Interested Party

in the application for judicial review.

2. In the Form 86 dated 22 June 2018 filed in HCAL 1165/2018,

Mr Kwok challenges the following “decisions”:-

“特首林鄭月娥所提出在香港(特别 1)行政區內設立內地口

岸區，實施一地兩檢” (the Chief Executive’s proposal to establish the Mainland Port Area to implement the Co-location Arrangement); and

“ 已刊憲之 ( 一地兩檢及其附屬法例 )” (the gazetted Co-location Arrangement legislation and subsidiary legislation).

1 The words in bracket have been omitted from Mr Kwok’s Form 86.

D E C I S I O N

- 3 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

The Chief Executive of the HKSAR is named as the Respondent in the

application for judicial review.

3. On 16 July 2018, Mr Leung and Mr Kwok (collectively, “the

Applicants”) each issued a summons in HCAL 1160 and 1165 of 2018

respectively seeking the following relief:-

“暫緩執行立法會於 2018 年 6 月 14 日通過的《廣深港

高鐵 (一地兩檢) 條例草案》直至法庭完成審議五個司法

覆 核 案 件 ” (stay of execution of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill passed by the Legislative Council on 14 June 2018 pending the court’s determination of 5 applications for judicial review).

4. This is the court’s decision on the 2 applications for interim

relief.

BASIC FACTS

5. The background facts relating to the Co-location

Arrangement are well known to the parties, and were set out in this

court’s previous decision in HCAL 453, 455, 458 and 460 of 2017 dated

27 September 2017. I do not propose to set them out again here. At

the time of that decision, the Co-location Arrangement was still a

proposal, the implementation of which was subject to the fulfilment or

completion of three conditions or steps, namely:-

Step One: the Mainland and the HKSAR reaching a “Co-operation Arrangement” in relation to the implementation of the Co-location Arrangement;

Step Two: the Standing Committee of the National People’s Congress of the PRC (“NPCSC”)’s approval and endorsement of the Co-operation Arrangement; and

- 4 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

Step Three: both sides implementing the arrangement pursuant to their respective procedures, including local legislation in Hong Kong.

6. On 18 November 2017, the《內地與香港特別行政區關於在

廣深港高鐵西九龍站設立口岸實施“一地兩檢” 的合作安排》

(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) was signed.

7. On 27 December 2017, the《全國人民代表大會常務委員會

關於批准〈內地與香港特別行政區關於在廣深港高鐵西九龍站設立

口岸實施“一地兩檢” 的合作安排〉的決定》(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)

(“the NPCSC Decision”) was adopted at the Thirty-first Session of the

Standing Committee of the Twelfth National People’s Congress.

8. On 26 January 2018, the Guangzhou-Shenzhen-Hong Kong

Express Rail Link (Co-location) Bill (“the Bill”) was presented to the

Legco. In the Bill, the “Mainland Port Area” is defined to mean (i) the

area declared as the West Kowloon Station Mainland Port Area under

Section 4, and include (ii) a train compartment to be regarded as part of

the West Kowloon Station Mainland Port Area under Section 5, ie a train

compartment of a passenger train in operation on the

Guangzhou-Shenzhen-Hong Kong Express Rail Link (“XRL”) (including

- 5 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

a passenger train which is in motion, stationary and during embarkation

or disembarkation). Section 6 of the Bill provides that, except for

certain reserved matters (as provided for in Section 3), the Mainland Port

Area is to be regarded as an area lying outside Hong Kong but lying

within the Mainland for the purposes of (a) the application of the laws of

the Mainland, and of the laws of Hong Kong, in the Mainland Port Area;

and (b) the delineation of jurisdiction (including jurisdiction of the courts)

over the Mainland Port Area.

9. The Bill was read in the Legco the first time on 31 January

2018, the second time on 13 June 2018, and the third time on 14 June

2018. On 21 June 2018, the Bill was signed by the Chief Executive.

On 22 June 2018, the Guangzhou-Shenzhen-Hong Kong Express Rail

Link (Co-location) Ordinance (“the Ordinance”) was published in the

Gazette as Ord No 23 of 2018. Accordingly, the three steps have now

been completed.

10. Section 1(2) of the Ordinance provides that it shall come into

operation on a day to be appointed by the Secretary for Transport and

Housing by notice published in the Gazette. No date has yet been

appointed for the coming into operation of the Ordinance. I am given to

understand, however, that it is the Government’s current plan that the

XRL shall commence service under the Co-location Arrangement in

September 2018.

11. As earlier mentioned, the two applications for leave to apply

for judicial review herein were made on 21 and 22 June 2018 respectively.

The court has directed a rolled-up hearing of the leave and substantive

- 6 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

applications, and they, together with 3 other applications for judicial

review, have been fixed to be heard on 30 and 31 October 2018.

APPLICABLE PRINCIPLES

12. In The Chief Executive of the Hong Kong Special

Administrative Region and Another v The President of the Legislative

Council, HCAL 185/2016 and HCMP 2819/2016, 18 October 2016, Au J

confirmed that, for the purpose of deciding whether to grant interim

injunctive relief in public law cases, the American Cyanamid principles

governing the grant of interlocutory injunction, subject to necessary

modifications, remained applicable. Under the traditional American

Cyanamid principles, the court should consider:-

(1) whether there is a serious issue to be tried in the action;

(2) if the plaintiff were to succeed at the trial, whether he would be adequately compensated by an award of damages for any loss caused by a refusal to grant an interlocutory injunction;

(3) if damages would not be an adequate remedy to the plaintiff, whether, if the injunction were granted, the defendant would be adequately compensated under the plaintiff’s undertaking as to damages; and

(4) if there is doubt as to the adequacy of the respective remedies in damages, whether the balance of convenience lies in favour of granting or refusing the interim injunction sought.

13. In the public law context, the above principles have to be

modified in, inter alia, the following aspects.

- 7 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

(1) Where an interim injunction is sought to restrain a government authority from enforcing what is prima facie the law of the land, the applicant has normally to go further than merely showing a serious issue to be tried. Generally speaking, he will need to establish a “strong prima facie case” that the law is invalid, although exceptionally an applicant may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just and convenient to restrain its enforcement by an interim injunction even though he is unable to discharge such a heavy burden (see R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603, at 674B-D per Lord Goff and 678G-679C per Lord Jauncey; R v Secretary of State for Trade and Industry, ex parte Trades Union Congress [2001] 1 CMLR 8, at paragraphs 24-26 per Buxton LJ; and Cheung Tak Wing v Communications Authority, HCAL 60/2015, 12 June 2015, at paragraph 26 per Au J).

(2) In relation to the question of balance of convenience, the court takes a wider view than just the interests of the immediate parties to the application. The court must take into account the public interest in the balancing exercise (see Cheung Tak Wing, ante, at paragraph 29; Smith v Inner London Education Authority [1978] 1 All ER 411 at 422, per Browne LJ). The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge, eg very different considerations may apply in a public law challenge against (i) a disciplinary process affecting the employment of an applicant or his employment benefits, and (ii) a decision by a

- 8 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

public body to carry out large scale public works based on environmental grounds.

(3) The relevance of damages as an alternative remedy will also vary depending on the nature of the decision under challenge. For example, it has been said that where public works of great costs are being challenged, the adequacy of damages will effectively be irrelevant, for the simple reason that the applicant will, in the vast majority of cases, simply not be in any position to pay the damages which may be occasioned by a delay of the public works for any appreciable period of time (see Society for Protection of the Harbour v Chief Executive-in-Council [2003] 3 HKLRD 960, at paragraph 11 per Hartmann J (as he then was)). The present case is, I consider, of a similar nature.

(4) This does not mean that financial consequences are to be ignored. They remain relevant to a consideration of the balance of convenience, but should not be regarded as the sole measure in assessing the balance of convenience (see Society for Protection of the Harbour, ante, at paragraph 13).

(5) As commented by the authors of De Smith, Woolf & Jowell’s Principles of Judicial Review, at p593 (quoted by Hartmann J in Society for Protection of the Harbour, ante, at paragraph 11):

“… in case involving the public interest, for example, where a party is a public body performing public duties, the decision to grant or withhold interim injunctive relief will usually be made not on the basis of adequacy of damages but on the balance of convenience test”.

(6) Ultimately, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to

- 9 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

have been “wrong” in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial), or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial (see Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, at 680 per Hoffmann J (as he then was), an approach endorsed by Lord Jauncey in Factortame, at 683).

14. There are two other relevant principles which I should

mention before I consider whether the court should grant the interim

injunction sought in this case.

(1) Save in exceptional circumstances, interim relief may only be granted if leave to apply for judicial review has been obtained (see Practice Directions SL3, paragraph 10).

(2) Even where leave to apply for judicial review has been obtained, the existence of an early hearing date for the substantive application for judicial review is a good reason for the court to refuse to grant interim relief (see R v Secretary of State for Education, ex p Avon CC [1991] 1 QB 558).

DISCUSSION

15. In relation to the substantive merits of this case, Mr Leung

contends that the Ordinance is inconsistent with as many as 10 articles of

the Basic Law, including Articles 2, 11, 18, 19, 22, 35 and 38 thereof, and

therefore unconstitutional. On the other hand, Mr Kwok contends that

the designation of the Mainland Port Area as an area lying outside Hong

Kong but lying within the Mainland under the Co-location Arrangement

- 10 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

as approved by the NPCSC is inconsistent with Order No 221 of the State

Council of the PRC relating to the delineation of the boundary of the

HKSAR. It is trite that an Ordinance, duly passed by the Legco and

signed by the Chief Executive and subject to Article 17 of the Basic Law

(relating to the power of the NPCSC to “return” the Ordinance), is

generally presumed to be valid until it is proven otherwise. Mr Leung

and Mr Kwok, who are acting in person, have, understandably, not

developed legal submissions in any detail in support of their contention

that the Ordinance is inconsistent with the Basic Law. For the purpose

of the present applications, I shall assume that there is a “serious issue to

be tried” on the question of whether the Ordinance is inconsistent with

the Basic Law. I do not propose to express any further view on this

issue in the view of the fact that (i) it will have to be fully argued at the

rolled up hearing in October 2018, and (ii) the present applications can,

I consider, readily be disposed of upon a consideration of the balance of

convenience.

16. On the issue of balance of convenience, the present case is

an obvious one where the interest of the public should be taken into

account and given considerable weight because, should the court grant an

interim injunction restraining the coming into force of the Ordinance, it is

clear that the XRL will not able to commence service in September 2018.

Although there is some faint suggestion by Mr Leung that the XRL could

still operate based on a “separate-location arrangement” (兩地兩檢) in

reliance upon certain statement made by the Transport and Housing

Bureau to the Legco in 2008, it is clear that such arrangement is no longer

feasible in view of the fact there are no provisions or facilities for

conducting customs, immigration and quarantine clearance procedures in

the next four train stations for the XRL in the Mainland after a passenger

- 11 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

train leaves the West Kowloon Station in Hong Kong (see paragraph 29

of the Affirmation of Mr Lai Yee-tak, the Permanent Secretary for

Transport and Housing (Transport), dated 3 August 2018). Mr Lai has

also given evidence on the adverse impact on travellers, workers and

businessmen that could result from a delay in the commencement of

service of the XRL (see paragraphs 14 to 26 of the Affirmation of Mr Lai).

The adverse impact includes (i) loss of income by MTRC (operator of the

XRL) and other franchised bus and mini-bus companies (providers of

connecting services to the West Kowloon Station), estimated at

HK$372.6 million per month, (ii) wasted operating and maintenance

costs incurred by MTRC and the franchised bus and mini-bus companies,

estimated at HK$179.9 million per month, (iii) loss of employment,

commerce, business and tourism opportunities for Hong Kong, (iv)

disruption of travel plans or restriction of choice of, or inconvenience to,

the travelling public to and from the Mainland, and (v) damage to the

reputation of Hong Kong as a regional transportation hub and to the

overall reputation of Hong Kong.

17. The above figures for the estimated financial losses are not

accepted by Mr Leung and Mr Kwok. For the present purpose, it is not

necessary for the court to come to at any definite figures, because it

cannot seriously be disputed that the financial losses would, on any view

of the matter, be very substantial (running into many millions of dollars

per month). There also cannot be any serious doubt that if the court

grants the interim injunction sought by the Applicants but it is ultimately

found that the Ordinance is constitutionally valid, very substantial loss

and damage of the types mentioned by Mr Lai will be suffered by the

society of Hong Kong as a whole.

- 12 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

18. On the other hand, as far as the interests of the particular

Applicants before the court are concerned, neither has suggested that he

intends to travel to the Mainland using the XRL, assuming that the

Co-location Arrangement shall be implemented in accordance with the

provisions of the Ordinance, pending the final determination of the

applications for judicial review. There are other viable means of

transport which they, and other members of the public who are opposed

to the Co-location Arrangement, can utilize to travel to and from the

Mainland.

19. I do not lose sight of the fact that the present applications for

judicial review raise issues which go far beyond a mere matter of

transportation. Issues of principle such as the application of the laws

and the delineation of jurisdiction (including the jurisdiction of the courts)

in or over the Mainland Port Area are raised in these applications.

Mr Leung and Mr Kwok have postulated situations where a member of

the public who takes the XRL to travel to the Mainland in the interim

period pending the final determination of the applications for judicial

review may find himself being “wrongly” subjected to PRC laws or penal

sanctions which he ought not to be so subjected to because the Ordinance,

as ultimately found by the court, is constitutionally invalid, and argue that

the adverse consequences to that person would, or might, be irreversible.

It is, however, a matter of free choice for any member of the public who

is opposed to the Co-location Arrangement for one reason or another to

decide whether to take the XRL, or enter the Mainland Port Area, during

the interim period. Mr Benjamin Yu, SC also points out that the possible

harm or damage postulated by Mr Leung and Mr Kwok are purely

hypothetical and, in any event, would not be suffered by them personally.

Since the court’s primary consideration when deciding where the balance

- 13 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

of convenience lies is that of public interest, I believe that the court

should not ignore completely the potential harm or damage which may be

suffered by third parties in the balancing exercise. Nevertheless, since it

is the Applicants who are advancing the present applications, the fact that

the potential harm or damage will be suffered by third parties and not by

them is a relevant factor to be taken into account, so also is the risk, or

degree of likelihood, of such harm or damage materialising.

20. Mr Leung also argues that Hong Kong, or the public, would

suffer damage if the court should make a “wrong” decision now in

refusing to grant the interim injunction but the applications for judicial

review should ultimately be successful. Such damage would or may

include disruption of travel plans, damage to the reputation of Hong Kong,

and possibly liability to pay compensation or damages for sudden

cessation of businesses. I accept that some such damage may arise in

the scenario postulated by Mr Leung. However, as earlier mentioned,

the court’s task is to take a course which appears to carry the lower risk of

injustice if it should turn out to have been wrong in granting, or refusing

to grant, the interim injunction. On an overall assessment of this matter,

I consider it to be clear that the potential harm or damage arising from a

“wrong” decision to refuse to grant the interim injunction will likely be

less, or less severe, as compared to the potential harm or damage which

may be caused by a “wrong” decision to grant the interim injunction. In

other words, refusing to grant the interim injunction sought will,

I consider, carry a lower risk of injustice.

21. Lastly:-

(1) there is, so far as I can see, no exceptional circumstances in the present case to justify the grant of interim relief prior to

- 14 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

the Applicants obtaining leave to apply for judicial review; and

(2) the existence of an early hearing date also militates against the need for interim relief in the present case.

22. There is one other problem in Mr Leung’s application in

HCAL 1160/2018 for interim relief that I should mention. The Legco

President is named as the respondent to the application, and the relief

sought is an order for a “stay of execution” of the Bill. I am given to

understand that, by seeking a “stay of execution” (暫緩執行) of the Bill,

Mr Leung is asking the court to grant an order to restrain the coming into

force of the Ordinance. That being the application, it seems obvious that

the proper respondent to the application should be the Secretary for

Transport and Housing, who is empowered by Section 1(2) of the

Ordinance to appoint a day for the coming into operation of that

Ordinance by notice, or the Government of the HKSAR. In this regard,

it should be recognised that the Secretary for Transport and Housing is

not a subordinate of the Legco President, and does not act under his order

or direction. Once the Bill has been passed by the Legco, the Legco

President has no further role to play in relation to the coming into force of

the Ordinance. In my view, it is clear the application for interim relief

should not have been made against the Legco President. I should

mention, to be fair to Mr Leung, that he made it clear, at the hearing as

well as in a previous letter dated 2 August 2018, that he was not seeking

any order against the Legco President personally by the present

application, although he maintained that the Legco President was

responsible for the passing of the Bill in the Legco.

- 15 -

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

23. In all, I have reached the clear conclusion that the

applications for interim relief should be refused.

DISPOSITION

24. For the foregoing reasons, the Applicants’ two summonses

dated 16 July 2018 are dismissed, with costs to the Chief

Executive/Secretary for Justice and the President of the Legislative

Council respectively to be taxed if not agreed. I do not consider the

circumstances of the present case are such as would justify an order for

indemnity costs against Mr Leung as sought by Mr Tang for the Legco

President.

(Anderson Chow) Judge of the Court of First Instance

High Court

The Applicant in HCAL 1160/2018, acting in person The Applicant in HCAL 1165/2018, acting in person Mr Simon Tang, of P C Woo & Co, for the Putative Respondent in

HCAL 1160/2018 Mr Benjamin Yu, SC and Mr Abraham Chan, SC instructed by

Department of Justice, for the Putative Respondent in HCAL 1165/2018 and the Putative Interested Party in HCAL 1160/2018

立法會 Legislative Council

立法會 LS91/17-18 號文件

原訟法庭就兩宗與立法會於 2018 年 6 月 14 日通過的 《廣深港高鐵 (一地兩檢 )條例草案》有關的中期濟助申請

所作決定的摘要

(HCAL 1160/2018 及 HCAL 1165/2018) 周家明法官在高等法院原訟法庭就梁頌恆 ("梁氏 ")及郭卓堅 ("郭氏 ")分別在 HCAL 1160/2018 及 HCAL 1165/2018 兩宗案件中提出的中期濟助申請進行聆訊後，於 2018 年 8 月 14 日頒下決定 (請參閱附錄 I)，駁回該等申請 ("該決定 ")。本文件是該決定的摘要。 2. 在 HCAL 1160/2018 一案中，梁氏於 2018 年 6 月 21 日針對立法會主席 ("主席 ")，就立法會於 2018 年 6 月 13 日的立法會會議上通過《廣深港高鐵 (一地兩檢 )條例草案》 ("《條例草案》 ")，提出申請司法覆核的許可的申請 ("許可申請 ")。律政司司 長 在 該 宗 申 請 中 被 指 明 為 有 利 害 關 係 的 一 方 。 在

HCAL 1165/2018 一案中，郭氏於 2018 年 6 月 22 日針對行政長官，就《條例草案》所訂的 "一地兩檢 "安排提出許可申請。另有3 宗關於相同或類似標的事項的司法覆核申請。法庭已指示就全部 5 項法律程序的許可及實質申請進行合併聆訊，並將聆訊日期定為 2018 年 10 月 30 及 31 日。 3. 在 HCAL 1160/2018 及 HCAL 1165/2018 兩宗案件中，梁氏及郭氏分別於 2018 年 7 月 16 日發出傳票，尋求中期濟助，即暫緩實施立法會於 2018 年 6 月 14 日通過的《條例草案》，待法庭就該 5 宗司法覆核申請作出決定。 4. 總括而言，梁氏認為，於 2018 年 6 月 22 日在憲報刊登為 2018 年第 23 號條例的《廣深港高鐵 (一地兩檢 )條例》 ("《條例》")，並不符合《基本法》多項條文，因此違憲。另一方面，郭氏認為，在全國人民代表大會常務委員會批准的 "一地兩檢 "安排下，指定內地口岸區為處於香港以外並處於內地以內的範

圍，並不符合有關劃定香港特別行政區 ("香港特區 ")界線的《中

附錄2

- 2 -

華人民共和國國務院令》第 221 號。根據所作澄清，梁氏尋求 "暫緩實施 "《條例草案》，其目的是請求法庭批給命令，制止《條例》生效。 1 5. 法庭認為可在考慮 "便利平衡 "的準則後處理中期濟助申請，即法庭對有關事宜作出整體評估，並比較不批給臨時禁

制令的決定可能造成的傷害或損害，以及批給臨時禁制令的決

定可能引致的傷害或損害。 2 就公法而言，法庭認同在考慮 "便利平衡 "的準則作出決定時，公眾利益是首要考慮因素，法庭應採取看來有較低不公風險的做法。 3 6. 就 "便利平衡 "的準則而言，法庭認為當前的案件顯然是應考慮及相當重視公眾利益的案件，因為若法庭批給臨時禁制

令，制止《條例》生效，廣深港高速鐵路 ("廣深港高鐵 ")香港段將不能在 2018 年 9 月啟用。同時，廣深港高鐵亦不可能在其他替代安排下營運，因為內地既無條文亦無設施讓從西九龍站出

發前往內地的乘客進行清關、出入境及檢疫的通關手續。 4 法庭亦認同，若法庭批給臨時禁制令，但最終發現《條例》在憲法

上屬於有效，毋庸置疑，香港整體社會將一如政府在運輸及房

屋局常任秘書長 (運輸 )的非宗教式誓詞中所估計，蒙受非常巨大的損失及損害。 5 7. 法庭留意到，在此期間乘搭廣深港高鐵前往內地的市民

可能受中華人民共和國的法律或刑事制裁規管，若最終裁定《條

例》違憲，負面後果可能不可逆轉。然而，法庭認為，任何反

對 "一地兩檢 "安排的市民可自由選擇，決定在此期間是否乘搭廣深港高鐵或進入內地口岸區，而可能造成的傷害或損害會由第

三方而非由梁氏及郭氏本人蒙受。經全面評估相關事宜後，法

庭決定不批給所尋求的臨時禁制令會有較低的不公風險。 6 8. 就梁氏的中期濟助申請而言，法庭裁定適當的答辯人應

為運輸及房屋局局長或香港特區政府，《條例》第 1(2)條賦權運輸及房屋局局長以憲報公告指定《條例》的實施日期。法庭

察悉運輸及房屋局局長並非主席的下屬，不會根據其命令或指

示行事。法庭亦認為，《條例草案》一經立法會通過，主席在

1 該決定第 22 段。 2 該決定第 15 及 20 段。 3 該決定第 13(2)及 (6)段。 4 該決定第 16 段。 5 該決定第 16 及 17 段。 6 該決定第 19 及 20 段。

- 3 -

《條例》實施方面便再無角色，而在這基礎上，法庭裁定中期

濟助申請不應針對主席而作出。 7 9. 基於上述理由，法庭駁回梁氏及郭氏的傳票，並將訟費

分別判給行政長官/律政司司長及主席，若雙方未能就訟費達成

協議，便須由法庭評定訟費。 立法會秘書處 法律事務部 2018 年 9 月 10 日

7 該決定第 22 段。