Examiners’ Report for JD Constitutional Law Exam (Dec 2022)

SECTION A

QUESTION 1

Since the establishment of the HKSAR in 1997, the NPCSC has made a number
of ‘interpretations’ of the Basic Law and/or ‘decisions’ relating to the HKSAR.
Which of these interpretations or decisions had the greatest impact on the
constitutional law or constitutional development of ‘One Country, Two
Systems’? Please select at least 3 and not more than 4 interpretations and/or
decisions, and analyze the nature and degree of their impact.

Examiners’ Comments

Most students attempted this Question rather than Question 2. The

general performance was satisfactory; there were also some good answers.
The purpose of this question is to test students’ understanding of the
constitutional history of the HKSAR and the relationship between the central
authorities and the HKSAR. It should be noted that the making of
interpretations or decisions by the NPCSC has been one of the most important
means by which the central authorities have exercised their power over Hong
Kong.
The question refers to interpretations/decisions made by the NPCSC, and
the NPC has not been expressly mentioned in the question. The NPC itself has
made two decisions on the protection of national security in the Hong Kong
SAR and on electoral reform in 2020 and 2021 respectively. Pursuant to the first
decision, the NPCSC has enacted the HKSAR National Security Law, and has
by making a decision, added the law to Annex 3 to the Basic Law. And pursuant
to the second NPC decision, the NPCSC has made a decision to amend Annexes
1 and 2 to the Basic Law. These two decisions by the NPCSC may therefore be
included among the NPCSC decisions relating to the Hong Kong SAR
mentioned in Question 1. However, it seems that some students only know that
the NPC has made the two decisions on national security and electoral reform

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respectively, and have not noticed that the NPCSC has also made “decisions” in
relation to the NSL and the amendment of Annexes 1 and 2. They have
therefore excluded these NPCSC decisions from discussion in answering this
question.
The decisions made by the NPCSC which students may discuss also
include the decisions on electoral reform made (in 2004, 2007, and 2014) in
pursuance of the second step of the five-step procedure for electoral reform
established by the 2004 interpretation of the NPCSC, the two decisions on co-
location (in the Shenzhen Bay and West Kowloon ports/stations respectively),
and the two decisions in 2020 on the extension of the term of office of the sixth-
term LegCo and on the qualifications of LegCo members.
Students should be free to choose among the 5 interpretations made by
the NPCSC and the NPCSC decisions mentioned above, and must discuss three
or four of them in answering Question 1.
For each interpretation or decision chosen, students were expected to
analyse its nature and the degree of its impact. In discussing the nature of the
interpretation or decision, students may comment on any controversial aspect,
e.g. in the first interpretation, the fact that article 158 of the Basic Law has not
provided for reference by the Chief Executive; or in the context of some other
interpretations, the nature of the interpretation in elaborating what is not
expressly provided for in the Basic Law or in supplementing its provisions. In
discussing the degree of impact, students should consider how the interpretation
or decision affected subsequent constitutional developments in Hong Kong,
and/or the extent to which it changed the existing rules, institutions or practices
of the constitutional arrangement of “One Country, Two Systems”.

QUESTION 2

‘The HKSAR has a system of “executive-led government”. It is therefore

incorrect to describe the constitutional system of the HKSAR as one that is
based on a “separation of three powers”.’
Critically discuss this statement.

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Examiners’ Comments

Relatively few students attempted this Question. The average standard of

the answers was not very high.
The statement asserts that the HKSAR has a system of executive-
government, and that the HKSAR constitutional system is not based on
separation of three powers. This is a view which has been expressed by
mainland Chinese officials and scholars. The concept of executive-led
government has also been authoritatively mentioned in some NPCSC decisions
relating to the HKSAR. Students should discuss whether they agree or disagree
with the statement, or the extent to which they agree or disagree with it.
Students should explain the reasons or factors that support the view that
Hong Kong has a system of executive-led government. For examples, the “dual
status” of the CE (as head of the HKSAR and head of the executive organs), the
accountability of the CE to both the central authorities and the HKSAR, the
active or dominant role played by the executive in policymaking, the drafting of
bills and budget proposals, emergency powers, etc. Restrictions on the power of
the legislature or individual LegCo members may also be mentioned, e.g.
limitations on the rights of LegCo members under article 74 of the Basic Law,
the arrangement of “split voting” or “separate counting” for motions or private
members’ bills proposed by LegCo members.
Students may also discuss the arguments against the separation of three
powers in Hong Kong. For example, executive-led government is not
compatible with separation of three powers, or the view that the separation of
three powers is a doctrine only applicable to the political system of independent
sovereign states and not to Hong Kong as a local administrative region
subordinate to the central government.
On the other hand, students may also argue that executive-led
government is not necessarily incompatible with separation of powers. For
example, they may argue that the Basic Law actually establishes three separate
and independent powers. It may be pointed out that the Chinese official view at
the time the Basic Law was enacted was that the executive and the legislature
should both coordinate with and check each other, and the judiciary should be
independent. It may be argued that these notions are consistent with separation
of three powers. Students may also refer to the case law in which the Hong

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Kong courts have mentioned or actually applied the doctrine of separation of
powers.

SECTION B

QUESTION 3

Consider this hypothetical question:

In 2022, the Hong Kong Government introduced two significant measures.
First, the Top Talent Tax Exemption Scheme (TTTES) would exempt new
residents who relocate to Hong Kong from paying personal income tax for two
years if their annual taxable personal income was 2.5 million Hong Kong
dollars or higher. The Government held that this fiscal measure would
incentivize the best foreign or Mainland talent to relocate to Hong Kong and
further develop Hong Kong as a global financial and technological hub.
Second, the Legislative Council enacted the Online Safety Ordinance (OSO).
Some of the key provisions of the OSO are as follows.

Online Safety Ordinance

10— (1) The Secretary for Security may, in the interests of national security
or public safety, take all necessary steps to disable access to any egregious
content that is communicated in Hong Kong.

— (2) Any content is deemed communicated in Hong Kong if it is made

available to one or more end‑users in Hong Kong on or through the internet.

11— (1) In this Part, “egregious content” means —

(e) content that brings into hatred or contempt or excites disaffection against
the Government of Hong Kong.

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(Note: According to the Oxford Advanced Learner’s Dictionary, “egregious”
means “extremely bad”:
<https://www.oxfordlearnersdictionaries.com/definition/english/egregious?q=e
gregious>)

Alice is a Hong Kong Permanent Resident. Alice believes that TTTES

discriminates against Hong Kong Permanent Residents and therefore violates
her right to equality. Alice also believes that the OSO will empower the Hong
Kong government to censor any critical online content and therefore violates
her right to free expression.

Alice is your client. Advise her.

Examiners’ Comments

The first issue pertains to whether S10(1) of the OSO violates the freedom of
expression.
(a) Is the definition of “egregious content” prescribed by law ?
Section 10(1) basically replicates what is “seditious” under Section 9(1) of the
Crimes Ordinance.
Is “bring into hatred or contempt or to excite disaffection” prescribed by law?
Students should explain what the “prescribed by law” requirement is.
Leung Kwok Hung CFA - “A criminal offence must be so clearly defined in
law that it is accessible and formulated with sufficient precision to enable the
citizen to foresee, if need be with appropriate advice, whether his course of
conduct is lawful or unlawful.”
But contrast Leung Kwok Hung CFA with Chee Fei Ming CA - “Holistic
Approach” [Para 42 ] : the law includes the common law and the availability of
judicial review to safeguard against any arbitrary interference in the context of a
generally worded discretion. So long as there is sufficient guidance in the
published rules or policies setting out the boundaries of an administrative

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discretion, it would provide an adequate basis for working out the precise
outcome in a particular case by way of judicial review [Para 45].
To get a good grade, students will be required to apply both tests to the facts.
Their final conclusion on this issue is not as important as their analysis.

(b) Is Section 10(1) of the OSO proportionate ?

Students will need to set out the 4 step Hysan Test.
Under Stage 1, Students need to set out a legitimate aim for the law. It would
NOT suffice to simply that the law seeks to defend national security.
Examples can include : To prevent falsehoods on the internet from going viral
so as to preserve trust between the people and the government , thereby
facilitating good governance.
Students should explain that under Step 3, judges will have to choose between
the “reasonable necessity” (RN) standard and the manifest standard. Students
should discuss the variables that affect this choice. See Hysan.
It is debatable whether the Court will choose the RN or the manifest standard.
Under the RN standard, student should discuss reasonable alternatives that the
government could have chosen , in lieu of simply granting the Security of
Security (SS) the power to disable egregious content. Examples can include
having a statutory mechanism where the SS can only disable the content after a
court hearing. If the manifest standard is applied , more judicial deference to
the government’s choice is warranted.
To get a good grade, students will be required to apply both standards to the
facts. Their final conclusion on this issue is not as important as their analysis.
The second issue pertains to whether the TTES violates the right to equality.
Students must first identify what is the differentiating trait here i.e. residency
status.
Students should note that under Fok Chun Wa, , residency status is a non-core
value . Fok Chun Wa – where it is non-core value differentiation, and where
resource allocation is implicated , courts will apply the manifest standard to
assess the justification for the law.
Students may choose to apply the 4-Step Hysan Test too . But if students only
apply Fok Chun Wa to the facts, that would be fine too in light of the exam
time constraints.

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Many students looked at whether the TTES is “prescribed by law” . As far as
the right of equality is concerned, this is not a relevant issue.
QUESTION 4

“PA [Proportionality Analysis] is a highly intrusive standard of review: once

activated, no policy consideration or interest is screened from judicial scrutiny”
- Alec Stone Sweet, Proportionality Balancing and Constitutional
Governance (OUP 2019) at p. 4.
Critically discuss this statement with respect to the Proportionality Analysis as
applied in Hong Kong.

Examiners’ Comments
Students should at the outset explain what Stone Sweet’s argument is. He is
arguing that PA is an intensive, rigorous doctrinal test that allows courts – when
applying it – to closely scrutinize every governmental objective.
Students should state whether they agree with Stone Sweet’s argument.
Students should state the 4 stage Hysan Test.
Students should look at how courts have invalidated laws that to do not serve
the governmental objectives , e.g QT .
Students should discuss how Stage 3 of Hysan allows for deference to be
incorporated e.g. Choice between Reasonable Necessity (RN) and manifest
standard . RN allows courts to closely screen the options chosen by the
argument and compare the alternatives. Manifest standard allows for judicial
deference. But note even under the manifest standard, courts have invalidated
governmental rules e.g. Kong Yunming.
Students should use case-law from Hong Kong on PA to support their
position. Students are free to use case-law taught in Prof Albert Chen’s part of
the Course too e.g. the CFA by-election case.
Case-law NOT on PA is not persuasive. Students who did so performed less
well.