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Monday, January 16, 2017, 17:22

Separatist duo denied leave to appeal

By Willa Wu and Carrie Qiu
Separatist duo denied leave to appeal
Yau Wai-ching and Sixtus Leung Chung-hang meets the press on Nov 15, 2016. (Provided to China Daily)

HONG KONG – The Court of Appeal (CA) in Hong Kong on Monday rejected disqualified lawmakers Leung Chung-hang and Yau Wai-ching’s application for leave to appeal to the Court of Final Appeal against a lower court’s verdict which stripped them of their lawmaker status and vacated their seats in the Legislative Council.

Dismissing the notices of motion submitted by the defense counsels for the duo, who declined to take the official oath during their swearing-in ceremony on Oct 12, 2016, the appellant court said their grounds were “unarguable.”

After the court handed down the rejection, LegCo President Andrew Leung Kwan-yuen said the duo had not returned HK$1.86 million earned in monthly emoluments and the operating funds they advanced to the legislature's statutory governing body – the LegCo Commission. Andrew Leung said the Commission will start legal action against the duo after the legal proceedings by the Court of Final Appeal are finished.

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In the ruling, the Court of Appeal rejected the argument that the interpretation of the Basic Law, or Hong Kong's mini-constitution, by the nation's top legislature over oath-taking requirements, was in substance an amendment and it was the Hong Kong courts' duty to declare it invalid if it amounted to a change in the Basic Law.

Justice Jeremy Poon Shiu-chor, one of the three judges in the panel, said in a 24-page judgment that a legislative interpretation by the National People's Congress Standing Committee (NPCSC) under the mainland system could “supplement” the Basic Law, and such argument was “wholly misplaced.”

Poon also reiterated that where constitutional requirements were concerned, only courts could adjudicate and rule on the matter.

The NPCSC had issued an interpretation of Article 104 of the Basic Law on Nov 7, 2016, clarifying the implications and requirements of oath-taking by Hong Kong legislators-elect.

The common law principle of non-intervention is necessarily subject to the constitutional requirements laid down by the Basic Law

Poon Shiu-chor, Justice Jeremy

The Article 104 of the Basic Law stipulated that Legco members must take their oath "sincerely, solemnly and accurately".

"The common law principle of non-intervention is necessarily subject to the constitutional requirements laid down by the Basic Law, which is supreme and binding on all authorities in Hong Kong, including the LegCo,” said Poon.

The city's High Court ruled on Nov 15, 2016, that Leung ang Yau must be disqualified as lawmakers. Their appeal to overturn the ruling was rejected by the Court of Appeal on Nov 30, 2016. Their application to move the Court of Final Appeal was also rejected Jan 16.

The duo are also required to pay HK$167,851 in legal costs each, according to the latest judgment. As leave to appeal can be granted either by the Court of Appeal or the Court of Final Appeal (CFA), Leung and Yau said they would now directly move the Final Court of Appeal.

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