The High Court on Wednesday granted permission to Southern District Council chairman Lo Kin-hei to legally challenge a decision by the council's secretary last year, when she failed to facilitate a council discussion about the police.
The proposed agenda item concerned how the Southern Police District handled cases involving mentally incapacitated persons.
This followed a suspected case of assault and criminal damage within the district, in Tin Wan, in early June, 2020, which involved a mentally incapacitated person. That raised concerns about how such cases are handled by frontline officers.
When the proposal was copied to the council secretary – a public officer within the Southern District Office of the Home Affairs Department – later that month, she replied that she did not think the item should be discussed. That was because it concerned cases handled "by the Hong Kong police force – rather than a matter concerning Southern District at the district level".
Lo, who's also chairman of the Democratic Party, decided to approve the item for discussion regardless, as it affected the well-being of people in the district and policing is a public service within the district.
However, the secretary did not circulate papers for this item or set aside any time for discussion of the item.
And when the item came up for discussion at the meeting on July 2, 2020, the secretary – along with the Southern District Officer and other representatives of government departments – left the meeting room. She did not keep any minutes or audio recordings of the discussion, and she did not upload any audio recording for that part of the council meeting to the council's public web page.
The Southern District Council considered that the secretary breached various provisions of the council's standing orders, and requested she "rectify" those breaches within 14 days.
The Home Affairs Department responded that no breach had occurred, because the item concerned "territory-wide issues, which did not carry any particular district angle".
Court of First Instance Judge Anderson Chow said the bone of contention appears to be whether a District Council's advisory functions are limited or confined to matters which relate exclusively to the relevant district.
He said it was reasonably arguable that just because a matter may also be relevant to other parts of Hong Kong or concerns territory-wide issues, it did not mean it no longer fell within the ambit of the district council's advisory functions.
He said this line of thinking was recognised by the government in the past, citing an affidavit from a former secretary for constitutional affairs in 2001, and a Home Affairs Bureau consultation document provided to the Legislative Council in 2006.
Chow said that assuming the matters proposed to be discussed do fall within the district council's scope, it is reasonably arguable that the council secretary acted unlawfully and in breach of her duties.
He said he was of the view that Lo's challenge to the decision is reasonably arguable, and has a realistic prospect of success.