As consulted with the Commercial Radio of Hong Kong (香港商業電臺 881903.com), this Cantonese to English transcription of the interview does not breach copyright law.
Interviewer: Stephen Chan (陳志雲)
Interviewee: Alan Leong, SC (梁家傑)
Date: November 16, 2016.
Interviewer: We want to ask you a practical question. Because they (Sixtus Leung and Yau Wai-Ching) are applying for a stay. And they are preparing to bring the verdict of their case to Court of Appeal. Can cases from The Court of First Instance be heard at Court of Appeal?
Interviewee: The case can be heard at the Court of Appeal, because it is their right (to be heard).
Interviewer: But after the appeal, if they are to bring the case to the Court of Final Appeal, they would need to obtain an approval?
Interviewee: Yup. As for the temporary stay that you mentioned just now, we must understand that according to Hong Kong’s legal system, before the first verdict has been overruled, the verdict must still be executed immediately. Unless the appellant obtains a consent from the Court of First Instance. Or when the judge of the first verdict disagrees to grant the stay, the Court of Appeal grants the temporary stay to execution of the verdict of lower court, and the stay is effective until the appeal of the case comes to a new verdict.
Generally speaking, how do courts grant a stay? Their points of consideration are these. If the stay is not granted, does that mean the appeal would become futile? If the stay is not granted, does that mean the appeal would become meaningless – even if the appellants eventually win their case?
As for this case, speaking from a legal perspective, my guess is that it is of rather lower chance that the court would grant a stay. First of all, public interest is in the limelight. If the case has been procrastinated for one to two years, it means that hundreds of thousand of constituents would lose two legislators to serve as their speakers.
More importantly, I believe that the government might say something like this – I hope they make it clear that these two legislators can stand in the by-elections. Even if they win their case, that does not affect their right to stand in elections.
The Hon Mr Justice H.C. AU clearly pointed out twice or thrice in his verdict that with or without the interpretation of National People’s Congress Standing Committee, the verdict will still be the same. Deriving from his understanding of Oaths and Declarations Ordinance and Hong Kong Basic Law, he will still come to the same conclusion.
He did not say it out though – that C.Y. Leung administration’s seeking of Beijing’s interpretation of the Basic Law is a worthless effort. That he ruined Hong Kong’s international reputation. Do you know that The Economist described Hong Kong as China’s new Tibet?
I am gratified to learn that since the handover of Hong Kong to China, courts in Hong Kong have been walking on a steel wire. I am not criticising them; I am saluting them. Walking on the steel wire so that you can get to the opposite, you have to move every step very carefully as if you are walking on thin ice.
On one hand you should not get on the nerves of the NPC Standing Committee so that they do not feel like they have been insulted. On the other hand you have to preserve the common law tradition of Hong Kong so that the system in Hong Kong is still trusted internationally. This is a very tough task. But from what we have observed in the past twenty years, our Court of Final Appeal and all judges have been putting in effort in this task. We have to understand their work, because this is not easy at all. You can say it is an almost impossible mission.
Interviewer: If Yau is to let go of her seat, according to political ethics, should the seat be kept for Youngspiration? Of course the prerequisite is that Youngspiration is willing to discuss about giving up the seats. Is there such political ethics?
Interviewee: The political ethics still exists. The problem is that from the observation of outgoing Yau’s performance in this period of time, pro-democracy supporters have learned a new perspective of Youngspiration. Can such perception be changed? Can Youngspiration introduce a new candidate and win the election? Both issues are correlated.
As what I said just now. For the sake of the overall democratic movement (in Hong Kong), if you are to introduce a new candidate so that this person can defend one pro-democracy seat in the Legislative Council, you should consider if the new candidate of Youngspiration can overturn the pro-democracy supporters’ perception of Youngspiration. This is something we should consider in the future.