Comment on the judgement of
the New World Group v the Hong Kong Legislative Council
Cheng Kar-Shun & Leung Chi Kin v Li Fung Ying1 was the first case to challenge the power of Legislative Council and the judgment had far-reaching influence on Hong Kong’s future development of legal system. In this application of judicial review, two major issues were debated. The 1st Issue In the application, the power of the Select Committee of LegCo was challenged. Whether it is bestowed the power of investigation under article 73 of Basic Law, that is to say, whether it is unconstitutional of the relevant provision in the Legislative Council (Power and Privileges) Ordinance was the first issue. When answering this question, the court gave a long reasoning of illustrating. According to the judgment, at least five factors were considered: (i) the nature and purpose of the powers and functions; (ii) the past history and usage as guidance; (iii) the Rules of Procedure of the LegCo made pursuant to article 75(2); (iv) other provisions in Basic Law such as the quorum requirement in article 75 (1) and Annex II; and (v) the document stipulating how the power and functions exercised by the LegCo.2 The court adopted the purposive approach when interpreting the Basic Law3, avoiding a literal, technical, narrow or rigid approach4. There are therefore good and coherent reasons for the court to conclude that the power to summon can be exercised by the LegCo as a full body and it Select Committee when a resolution is passed.
The 2nd Issue
1 2 3 4
Cheng Kar-Shun & Leung Chi Kin v Li Fung Ying 4 HKC 204 Cheng Kar-Shun & Leung Chi Kin v Li Fung Ying 4 HKC 204 Paras 126-130 Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4
Whether the Select Committee acted upon outside the scope under the resolution made by the LegCo to establish the Select Committee to authorize it the power of inquiring when...