1. In these proceedings, the Court is asked to determine the legal questions of (a) whether the oaths taken by Mr. Nathan Law Kwung Chung (“Mr. Law”), Mr. Leung Kwok Hung (“Mr. Leung”), Ms. Lau Siu Lai (“Ms. Lau”), and Mr. Yiu Chung Yim (“Mr. Yiu”) on 12 October 2016 were valid in law and, (b) whether they should be regarded in law as having declined or neglected to take the oaths. Mr. Law, Mr. Leung, Ms. Lau, and Mr. Yiu are collectively referred to as the “Defendants”. 2. The Defendants are members-elect for the LegCo term starting from 2016. On 12 October 2016, they proceeded to take the LegCo Oath before the Clerk to the LegCo (“the Clerk”). The Clerk administered the oaths taken by Mr. Law, Mr. Leung and Ms. Lau but declined the jurisdiction to administer the oath-taking by Mr. Yiu on the ground that Mr. Yiu had altered the form of the oath (“the Clerk’s Decision”). 3. On 18 October 2016, the President of the LegCo (“the President”) ruled that the oath taken by Mr. Law was valid but the respective oaths taken by Ms. Lau and Mr. Yiu were not. However, the President allowed Ms. Lau and Mr. Yiu to retake their oaths (“the President’s Rulings”). Ms. Lau and Mr. Yiu retook the oaths on 2 November and 19 October 2016 respectively, and the President regarded their retaken oaths valid. 4. The Chief Executive (“CE”) and the Secretary for Justice (“SJ”) (collectively “the Plaintiffs”) sought (among others) (a) orders to quash the Clerk’s Decision and the President’s Rulings, and (b) declarations that the oath taken by each of the Defendants was invalid, that each of the Defendants has been disqualified from assuming or entering the Office of a LegCo Member (“the Office”). 5. On a proper construction of Article 104 (“BL104”) of the Basic Law (together with its Interpretation issued by the National People’s Congress Standing Committee on 7 November 2016 (“the Interpretation”)), the provisions in the Oaths and Declarations Ordinance (“ODO”) and as derived from the relevant case law, the Court identifies the following principles relating to the legal requirements for taking the LegCo Oath. 6. First, it is a constitutional and mandatory requirement that a member elect of the LegCo must properly and validly take the LegCo Oath both in form and in substance as required by the law before he could assume the Office. 7. Second, taking the LegCo Oath in form and in substance means, in law, that the oath taker must: (1) take the LegCo Oath in exactly the same form and content as prescribed under Schedule 2 of ODO (“the Exact Form and Content Requirement”); (2) do it solemnly and sincerely (“the Solemnity Requirement”); and (3) sincerely believe in and strictly abide by the oath (“the Substantive Belief Requirement”). 8. Third, under the Exact Form and Content Requirement, the oath taker must accurately and completely read out the oath as prescribed, and must not read out words which do not accord with the wording of the prescribed oath. Additions of other worded messages in the oath would be regarded in law as altering the form of the prescribed oath and thus in breach of the Exact Form and Content Requirement. 9. Fourth, under the Solemnity Requirement, the oath taker must take the oath in such a solemn manner which is consistent and commensurate with the occasion of taking the LegCo Oath. “Solemn” means dignified and formal. The manner should reflect and demonstrate the due respect consistent with the utmost constitutional importance of the oath taking procedure and support the serious and important commitment of the oath taker to bind himself to the pledges in the oath. 10. Fifth, under the Substantive Belief Requirement, the oath taker in taking the oath must at the time of the oath also faithfully and genuinely believe and commit himself or herself to uphold and abide by the obligations in the LegCo Oath. 11. Sixth, an oath taker who seeks to alter the form, the manner and the substance of the oath when taking it will offend Art. 104 of BL, and the oath so purportedly taken will be unlawful and of no effect. He will be regarded as declining and neglecting to take the oath. A LegCo member-elect who declines or neglects to take the oath would be disqualify automatically as a matter of law from assuming or entering into the Office. 12. Seventh, the Court is the final arbiter in determining whether an oath taker’s oath is compliant with the legal requirements. 13. Eight, the Court adopts an objective test in assessing such compliance: (i) In an objective assessment, the Court will look at the conducts, manner and words adopted by an oath taker in taking the LegCo Oath with a view to deciding what meaning those conducts, manner and words convey to a reasonable person. The oath taker’s subjective intention or thinking is irrelevant. (ii) In the objective assessment, the oath taker would be regarded in law to have declined or neglected to take the oath if (a) he objectively intended to adopt the particular manner, conducts or words in taking the oath, and (b) the particular manner, conducts or words objectively viewed do not comply with any of the oath taking legal requirements. It is not necessary element to find that the oath taker objectively intended to flout the law. Mr. Law 14. It is not disputed that, right before reading out the oath, Mr. Law made an Opening Statement “誓詞，英文係‘Affirmation’，佢拉丁文原意係使其更堅定更堅強。宣誓就係一個莊嚴嘅儀式，要我地向香港人承諾未來要知行合一，捍衛香港人嘅權利。但今日呢個神聖嘅儀式，已經淪為政權嘅工具，強行令民意代表屈服喺制度同埋極權之下。You can chain me, you can torture me, you can even destroy this body, but you will never imprison my mind. 我今日要完成必要嘅程序，但係唔代表我會屈服喺極權之下。香港市民永遠都係我地服務同埋團結嘅對象，我係絕對唔會效忠於殘殺人民嘅政權，我一定會堅持原則，用良知守護香港。希望在於人民，改變始於抗爭。”[1]. 15. Further, he adopted a distinct rising tone whenever he spoke the word “國” in reading the phrase “中華人民共和國香港特別行政區” of the LegCo Oath. Right after reading out the oath, he made a closing statement “權力歸於人民，暴政必亡，民主自決，抗爭到底。” 16. The Plaintiffs submit that, objectively assessed the above way in which he took the oath, Mr. Law did not comply with the legal requirements to faithfully or truthfully believe and commit himself to upholding and abiding the obligations set out in the LegCo Oath. 17. Applying the legal principles to the above indisputable objective facts of this case, the Court agrees with the Plaintiffs’ submissions. (a) Viewed objectively, by the Opening Statement, Mr. Law manifested a reasonable person the message that (i) the requirement to take the LegCo Oath was something that Mr. Law as the elected representative was “forced” to do under the system and a totalitarian authority, and (ii) the requirement to take the LegCo Oath was only a political tool employed by the PRC and the HKSAR to force him to pledge allegiance to the HKSAR of the PRC and the uphold the BL. (b) By adopting a rising intonation in pronouncing the word “國＂in the phase “the HKSAR of the PRC” in the oath, and understood in the context of the Opening Statement, Mr. Law has objectively expressed a doubt on or disrespect of the status of the PRC as a legitimate sovereign of the HKSAR. (c) The Court and Court of Appeal have previously held in another case that doubting or refusing to recognize the legitimacy of the PRC as the sovereign of the HKSAR is inconsistent with and contrary to the swearing allegiance to the HKSAR and to uphold the BL. (d) For all these reasons, view objectively, Mr. Law did not manifest a genuine and truthful intention to commit himself to and abide by the obligations in the LegCo Oath when purportedly taking it. (e) Further, there is no dispute that Mr. Law intentionally made the Opening Statement and adopted the rising tone. In the premises, Mr. Law is regarded in law to have declined or neglected to take the LegCo Oath on 12 October 2016 when requested to do so. 18. Further, Mr. Law read the Opening Statement right before he read out the LegCo Oath, and the Closing Statement right after. Objectively viewed, Mr. Law intended to convey the worded messages in the opening and closing statements as part of the oath taking itself. The Court therefore also agrees with the Plaintiffs’ submissions that by making the Opening and Closing Statements in the way he did, Mr. Law failed to comply with the Exact Form and Content Requirement in taking the LegCo Oath. 19. Mr. Law has provided various subjective explanations in his affirmation explaining what he did in the oath taking process. These explanations are evidence or matters relating to Mr. Law’s subjective thought process, thinking and subjective meanings he sought to accord to his conducts. The Court do not regard them relevant to the objective test for determining the legal compliance of his oath taking. In any event, even if the court was to consider them, Mr. Law’ explanations are not borne out by and are clearly inconsistent with the clear and objective evidence adduced before the Court. They therefore could not have any bearing in the objective assessment to displace the objective meaning as found by the court. 20. Mr Law also says the way and manner he adopted to take the LegCo Oath is modelled upon the previous ways and manner in which past LegCo members had taken the oath, which had been accepted to be valid by the President or Clerk. He therefore did not have any intention to flout the legal requirements when taking the oath in such a way. As such, he should therefore not be held to have declined or neglected to take the oath. The Court rejects this submission in light of the legal principle set out at paragraph 13(ii) above. 21. In the premises, the Court finds it clear in law that objectively Mr. Law declined or neglected to take the LegCo Oath on 12 October 2016 and is disqualified from assuming or entering the Office since 12 October 2016. The Plaintiffs are granted the reliefs as they sought against Mr. Law. Mr. Leung 22. It is not disputed that, after the Clerk called Mr. Leung to take the oath, Mr. Leung wearing a black T-shirt with the words “公民抗命” walked up to the table by carrying an opened yellow umbrella (with many words written thereon, including “結束一黨專政”) in his right hand and a paper board showing “人大831決議” in his left hand and at the same time shouted a slogan in Cantonese. After he reached the table, he made a statement in Cantonese “雨傘運動！不屈不撓！公民抗命！無畏無懼！人民自主自決！無須中共批准！我要雙普選！梁振英下台！”[2]. He then read out the words of the LegCo Oath in a truncated manner. After he completed reading out the words, he shouted another slogan “撤銷人大831決議！我要雙普選！”;[3], put down the umbrella, tore a piece of paper with the words “人大831決議” into pieces, threw them away towards the ceiling and left where he had been standing. 23. The Clerk treated the oath taking as valid. did not say anything about Mr. Leung’s purported oath-taking. 24. Applying the legal principles to the objective facts of this case, the Court agrees with the Plaintiffs’ submissions that Mr Leung did not comply with the Solemnity Requirement. 25. The ceremony and procedure of oath taking serve only one purpose, which is for the oath taker to comply with the constitutional requirements by taking the oath in the form and substance as prescribed and required by the BL and ODO. 26. In Mr. Leung’s case, the holding of an opened umbrella, the chanting of slogans, and the tearing of paper with message on it are not related to the very purpose of the oath taking. Objectively to a reasonable person, these theatrical acts and conducts clearly go outside an objective reasonable range of the requisite dignity and respect that would commensurate with the constitutional importance and seriousness of the oath taking process. Objectively viewed, the acts and conducts of Mr. Leung in his taking of the LegCo Oath therefore did not satisfy the Solemnity Requirement. 27. Furthermore, the Court also holds that, given Mr Leung made the chanted slogans right before and after his reading of the oath, objectively viewed by a reasonable person, Mr. Leung sought to convey the additional worded messages in the chant as part of the oath taking itself. His oath taking therefore also failed the Exact Form and Content Requirement. 28. Mr. Leung has provided various explanations in his affirmation saying that he made those short statements in the oath taking process to express to his voter his political goals. He also does not advocate for the independence of Hong Kong and is in fact genuine in making his pledges in the oath. The Court does not regard these subjective explanations relating to his thought process, thinking and subjective meanings he sought to accord to his conductsas relevant to the objective assessment. In any event, even if the court was to consider them, these explanations do not impact on the court’s conclusion on the failure to comply with the Solemnity Requirement, and indeed support the objective view that Mr. Leung sought to incorporate and convey in the oath taking additional worded messages, thereby violating the Exact Form and Content Requirement. 29. For the legal principle set out at paragraph 13(ii) above, the Court also rejects Mr. Leung’s reliance on the past rulings of the President in accepting previous oath taking by Mr. Leung himself and other LegCo members to say that he had no intention to flout the legal requirements and therefore did not decline or neglect to take the oath. Similarly, the court does not accept that LegCo practices on what are acceptable members’ conducts in conducting LegCo proceedings and debates as the benchmark for measuring the requisite solemnity for oath taking, since they are of very different nature and for different purposes. 30. The Court concludes that, objectively, Mr. Leung declined or neglected to take the LegCo Oath when he was requested to do so on 12 October 2016. He should be disqualified from assuming the Office since and is not entitled to claim to act as a LegCo member. The Clerk’s Decision to accept Mr. Leung’s purported oath as valid was wrong in law and should be quashed. The Plaintiffs are granted reliefs as they sought against Mr. Leung. Ms. Lau 31. It is not disputed that, after having been requested to take the LegCo oath, but before her reading out the words of the oath, Ms. Lau made an opening Statement “本人劉小麗謹此承諾，本人由街頭進入議會，定必秉承雨傘運動命運自主精神，與香港人同行，連結議會內外，對抗極權。我們要活在真誠磊落之中，打破冷漠犬儒，在黑暗中尋找希望，共同開創民主自決之路。推倒高牆，自決自強。”[4]. Ms. Lau then read the words of the oath at slow pace with a clear pause lasting about 6 seconds between each word of the oath. It took about 10 minutes for Ms. Lau to complete reading out the entire context of the LegCo Oath in this manner. Ms. Lau then made a closing Statement “爭取全民退休保障，落實墟市政策，捍衛香港人生活尊嚴”,[5] right after she completed reading out the text. On 13 October 2016, Ms. Lau published on the Facebook an article explaining her conduct during the oath taking process. Ms. Lau also gave her explanations reported in an article published in Apple Daily on the same date. 32. On 18 October 2016, the President ruled that the oath purportedly taken by Ms. Lau was invalid. Notwithstanding the ruling, the President said he was prepared to allow Ms. Lau to retake the oath. 33. Applying the legal principles to the objective facts of this case, the Court agrees with the Plaintiffs’ submission that the conducts of Ms. Lau clearly show objectively that she did not genuinely and faithfully accept and bind and commit herself to the obligations pledged in the LegCo Oath. The way in which Ms. Lau read out the LegCo Oath by breaking up each of the words with an interval of 6 seconds objectively clearly show to a reasonable person that she did not intend to convey any meaning of the contents and pledges of the LegCo Oath. Hence, objectively, Ms. Lau did not intend to commit herself to the obligations under the LegCo Oath. This is indeed confirmed by her own admissions in the Facebook article and the Apple Daily article. Accordingly, Ms. Lau has failed to comply with the Substantive Belief Requirement. 34. The Court also finds that Ms. Lau has violated the Exact Form and Content Requirement. Given that she made the opening and closing statements right before and after the reading of the oath, objectively viewed, she intended to convey additional worded messages (as embodied in the statements) as part of the oath taking itself. 35. Ms. Lau has provided in her affirmation various subjective explanations to say that she wanted to use the slow-paced reading to underline to the public “the hypocrisy” of some unidentified LegCo members who “treated the oath as going through the motion” and to convey the message that “their fluent oaths are hypocritical”. 36. The Court reiterates that these subjective explanations relating to her thought process, thinking and subjective meanings she sought to accord to her conducts are irrelevant to the objective assessment and should not be taken into account. Further, the Court also refuses to treat them as the relevant background and context as they could not have been known to a reasonable person at the time of the oath taking. In any event, even if the court was to consider them, the explanations cannot be accepted to displace obvious and unequivocal objective meaning conveyed by the conduct of the slow-paced reading as found by the court. 37. It clear that Ms. Lau intended to take the LegCo Oath in a slow-paced manner. Accordingly, she has objectively declined or neglected to take the LegCo Oath. The oath purported taken by her was therefore unlawful and invalid. As a matter of law, she has since been disqualified from taking the Office. In the premises, the Clerk’s Decision and the President’s Ruling were wrong in law and should be quashed. The Plaintiffs are granted reliefs as they sought against Ms. Lau. Mr. Yiu 38. It is not disputed that when Mr. Yiu first purported to take the LegCo Oath on 12 October 2016, he inserted and read out the extra words “定當守護香港制度公義，爭取真普選，為香港可持續發展服務”[6] in the middle of the LegCo Oath. The Clerk then told Mr. Yiu that, since he had added extra words to the oath, the Clerk had no jurisdiction to administer the oath and requested Mr. Yiu to retake the oath in the prescribed form. In retaking the oath, Mr. Yiu again added the same extra words at the end of the oath. The Clerk then informed Mr. Yiu that the Clerk had no jurisdiction to administer the oath. Mr. Yiu then returned to the seat. 39. On 18 October 2016, the President ruled that the oath purportedly taken by Mr. Yiu was invalid but that he acceded to Mr. Yiu’s request for retaking the oath. 40. The court agrees with the Plaintiffs’ submissions that the oath taken by Mr. Yiu on 12 October 2016 violated the Exact Form and Content Requirement. 41. The Court finds that, objectively viewed, Mr. Yiu intended to add the extra words in the middle of the LegCo Oath in his first attempt to take the oath. The Court notes that, after reading out the extra words, Mr. Yiu had paused momentarily and then continued to read out the remaining words in the LegCo Oath. The Court takes the view that, given that the extra words constituted a complete sentence of 25 words, objectively the fact that Mr. Yiu read the entire sentence out in the middle of the oath and completed reading the rest is consistent with the position that he intended to read it that way. Alternatively, if it was a mistake in inserting the extra words, a reasonable person in Mr. Yiu’s position would have started the oath over again without continuing reading the remaining wordings of the oath. Mr. Yiu’s then decision to continue to read out the remaining words after inserting the extra words clearly demonstrates that at the latest by then, he intended to insert and read out the extra words in the way he did in his first attempt. Mr. Yiu therefore violated the Exact Form and Content Requirement already in his first attempt, and has so declined or neglected to take the LegCo Oath when requested to do so. 42. In any event, the Court has no hesitation in finding that Mr. Yiu’s second attempt was also invalid. In the second attempt, Mr. Yiu was warned by the Clerk that the oath taking would be invalid by inserting extra words. Mr. Yiu has nonetheless inserted the extra words at the end of the prescribed form of the LegCo Oath. He read out the extra words immediately, continuously and smoothly after reading out the last sentence of the prescribed text of the LegCo Oath. Viewed objectively, the extra words uttered by Mr. Yiu were intended to be understood as part and parcel of the oath. This is a breach of Exact Form and Content Requirement. As Mr. Yiu has intentionally read out the extra words in the way he did, he has declined or neglected to take the LegCo Oath. He should be disqualified from taking the Office after his second attempt. 43. Mr. Yiu says he did not decline to take the LegCo Oath. He explained that he had made a mistake in the first attempt, and in any event he was under the misunderstanding of the law that he could add words to the LegCo Oath anywhere as long as he did not alter the substance of the pledges in it. He said he never intended to flout the oath taking law. 44. The Court rejects these arguments because: (a) as stated in paragraph 13(ii) above, it is not a necessary element in the objective assessment to find an intention to flout the law; (b) Mr. Yiu’s subjective explanations relating to his thought process, thinking and subjective meanings he sought to accord to his conducts are irrelevant to the objective assessment, and (c) in any event, the explanations support the Court’s conclusion that Mr. Yiu has violated the Exact Form and Content Requirement as in his own case, he did intend to add the words to the LegCo Oath even though to the end of it. 45. In the premises, Mr. Yiu failed to comply with the Exact Form and Content Requirement in taking the LegCo Oath on 12 October 2016. Objectively, he has in law declined or neglected to take the LegCo Oath. The President was wrong to allow Mr. Yiu to retake the oath. The President’s Ruling should be quashed. The Plaintiffs are granted reliefs as sought against Mr. Yiu. Defendant’s Stay Application 46. On the last day of the hearing, the Defendants applied for a permanent stay or dismissal of these proceeding against them on the basis that they are an abuse of process as their commencement was allegedly motivated by political considerations or ulterior reasons that the Plaintiffs have failed to disclose. This is particularly so as the Defendants say there are other members-elect of the LegCo in this term who have taken the LegCo Oath in allegedly the same manner and ways as the Defendants, but the Plaintiffs have not explained why they did not also bring the disqualification proceedings against the others. 47. Having considered the parties’ written submissions subsequently filed, the Court dismissed the application for stay for the following reasons: (a) It is noted that the Government has issued public statements back in December 2016 explaining that the decision of taking out the proceedings was based on legal advice including the advice from independent counsel and no political consideration had been involved. (b) The Defendants says that the Government is “politically motivated” in only bringing the proceedings against the Defendants but not the others so as to disqualify so many pro‑democrats and other non-establishment members as would destroy their majority in the LegCo in Geographical Constituencies. The Defendants also submit that it is proper to infer in these circumstances that these proceedings were only brought against them in succumbing to undue political pressure. The court finds these allegations at best speculative and the conclusions are illogical since they could not logically explain why the Plaintiffs would have to be selective and only proceeded against the four defendants but not the others, which could generally also be regarded as “pro-democrats” or the non-establishment camp. (c) Further, the authorities emphasize that the law draws an important and clear distinction between the use of the process for obtaining judgment and the misuse of the process for predominant purpose other than for which the proceedings are designed. It is clear that the Plaintiffs intended to proceed against the Defendants to trial and to seek reliefs as claimed. Even if (which the Court does not accept) the disqualification achieves some extraneous purposes, this cannot constitute an abuse of process because the alleged purpose is to bring about a result for which the law provides in any event. (d) When all these are assessed a whole, the Defendants have failed to discharge the burden imposed in law to show that the commencement of these proceedings against them is an abuse of process by the Plaintiffs to achieve an ulterior or political motive. [1] English translation: Affirmation, English being ‘affirmation’, has a Latin meaning strengthening the affirmative. Taking the oath is a solemn ceremony, requiring us (the members-elect) to make a promise to Hong Kong people that we will keep our words and actions as one, to protect the rights of the Hong Kong people. However, this solemn ceremony has today been rendered a political tool used by those in power to forcefully subject elected representatives under the system and the authority. You can chain me, you can torture me, you can even destroy this body, but you will never imprison my mind. Today I must complete the required procedure, but this does not mean 1am subjugating myself under the totalitarian authority. Hong Kong citizens will always be those whom we serve and unite, I will absolutely not bear allegiance to a political administration which brutally kills its people, I will maintain my principles, and protect Hong Kong people with my conscience. Hope is in the people, change is in resistance. [2] English translation: Umbrella Movement! Indomitable! Civil Disobedience! Without Fear! Self-Autonomy and Self-Determination for People! No Approval from the Communist Party of China is Required! I Want Dual Universal Suffrage! Leung Chun Ying Step Down! [3] English translation: Revoke NPC 831Decision! I Want Dual Universal Suffrage! [4] English translation: I, Lau Siu Lai, hereby make this pledge, that I, having entered the Council from the streets, will certainly carry forth the spirit of self-determination of destiny in the Umbrella Movement, walk with the Hong Kong people, connect the inside and outside of the Council, to fight against totalitarianism. We must live in truth, break the indifference and cynicism, look for hope in the darkness, and blaze a trail to democratic self-determination together. Tear down the high wall [for] self-determination and self-reliance. [5] English translation: Fight for universal retirement protection, implement policy for bazaar and staunchly defend the dignity of Hong Kong people in their living. [6] Translated as: I will protect the justice system in Hong Kong, fight for true democracy, and serve Hong Kong for its continuing development.