The High Court is to hear next Thursday an appeal from Youngspiration’s Yau Wai-ching and Baggio Leung Chung-hang, the pro-independence lawmakers at the centre of the oath controversy.

Legislative Council President Andrew Leung also agreed not to formally declare their disqualification in the Gazette before the appeal hearing.

Yau Wai-ching Baggio Leung
Baggio Leung and Yau Wai-ching outside the High Court. File Photo: Cloud.

The Youngspiration pair lost in a judicial review challenge on Tuesday, and have been barred from the legislature since. The trial judge Mr Justice Thomas Au Hing-cheung held that the duo must be disqualified on the grounds that they had refused to take their oaths during last month’s swearing-in session at the Legislative Council.

On Thursday, the Court of Appeal agreed to hear the appeal from the embattled politicians over the lower court’s decision to disqualify them. Mr Justice Johnson Lam said that the court would likely hand down a ruling as soon as the hearing ended.

The pair originally applied for an injunction to block Andrew Leung from starting the gazetting process, but dropped the request after Leung agreed to postpone it to next Friday at the earliest.

Leung said on Tuesday that the legislature’s secretariat would formally declare the duo’s offices vacant within 21 days.

Andrew Leung and Kenneth Chen Wei-on
LegCo President Andrew Leung (left) and Clerk Kenneth Chen Wei-on (right). Photo: Stanley Leung/HKFP.

In their application, counsel for the Youngspiration politicians said Mr Justice Au erred in holding that the principle of non-intervention did not apply in oath-taking.

They said that the president or clerk of the legislature is the “sole oath administrator” with the power to administer the oaths of lawmakers “within the walls” of the Legislative Council. The issue of whether a lawmaker has declined to take the oath is therefore an internal affair of the legislature, they argued.

They also argued that the offices of lawmakers cannot be automatically vacated; rather, lawmakers can only be removed after the legislature’s president declares their disqualification under Article 79 of the Basic Law.

HKU legal expert Eric Cheung Tat-ming said earlier that the pair have a low chance of winning the appeal.

In his ruling, Mr Justice Au held that the pair had “declined” to take their oaths owing to their controversial conduct, such as mispronouncing some words and displaying a “Hong Kong is not China” flag. He said that the evidence proved that the duo did not intend to “truthfully and faithfully” uphold the Basic Law.

high court
File Photo: Stanley Leung/HKFP.

The judge also said Yau and Leung “objectively and clearly” failed to recognise the importance of “One Country” in the One Country, Two Systems policy.

He also held that the legislature’s president has no power to allow the duo to be sworn-in again.

Some lawyers expressed concerns about the judge’s reasoning, such as the point on “One Country.”

“It raises a lot of questions in the future as to how far one can go before someone will say that you’ve failed to recognise the importance of ‘One Country,’” Barrister Wilson Leung told HKFP earlier. “For example, if someone refers to Taiwan as a country… if someone loves China but wants to get rid of the Communist Party, is he going to be held to have failed to recognise ‘One Country’?”

Ellie Ng has written for Foreign Policy, the Daily Telegraph, Global Voices Online and others.