1. 律政司司長袁國強和運輸及房屋局局長張炳良於2015年11月21日在北京會晤港澳事務辦公室官員並討論有關廣深港高速鐵路（「高鐵」 ）香港段「一地兩檢」的法律安排（「一地兩檢安排」） 。
2. 律政司司長在會後確實，雙方已達成共識，使一地兩檢安排得以實現，亦即代表內地官員可在香港特別行政區内行使中華人民共和國法律下的權力（「共識」）。與2015年5月20日的會議一樣，律政司司長並沒有詳細交代共識的細節，但認為該措施會符合《基本法》。律政司司長表明香港和內地的官員將於 2016年年初更詳細地討論該事宜。
因此，令共識符合《基本法》的唯一方法是修改《基本法》第18和22 條，例如訂立例外情況，容許香港特別行政區政府在指定領土内不引用《基本法》，以便內地官員於香港特別行政區之內行使中華人民共和國移民、海關及關稅法例 。
1. On 21st November 2015, Secretary for Justice, Rimsky Yuen, and Secretary for Transport and Housing, Anthony Cheung, met with Hong Kong and Macao Affairs Office officials in Beijing to discuss the legal framework regarding the co-location arrangement (“Co-location Arrangement”) at Hong Kong section of Guangzhou-Shenzhen-Hong Kong Express Rail Link (“Express Rail Link”).
2. The Secretary for Justice confirmed after the meeting that parties had reached a consensus to enable a Co-Location Arrangement, and which would allow Mainland officials to exercise powers under PRC laws within the Hong Kong SAR (“Consensus”). As with the same meeting on 20th May 2015, the Secretary for Justice did not elaborate on details of the Consensus but suggested that such measures will be consistent with the Basic Law. The Secretary for Justice said that Hong Kong and Mainland Chinese officials will discuss the issues again in more detail early in 2016.
3. We have reviewed and considered various forms of Co-Location Arrangements in different jurisdictions. All such arrangements require the host states to transfer sovereignty in an area of the station to the adjoining state, for the adjoining state’s officials to exercise their powers.
4. However, we consider that the Consensus will be inconsistent with the Basic Law as currently implemented. This is because:
Article 18 HKBL prohibits the exercise of mainland law in Hong Kong and PRC Immigration and Customs laws or regulations cannot be introduced through Annex III as these powers are expressly within Hong Kong’s autonomy under Article 154 HKBL.
Thus, the only way any Consensus can be made to conform with the Basic Law would be to have Articles 18 and 22 HKBL amended, such as to carve out exceptions to enable the Hong Kong SAR Government to disapply the Basic Law to designated territories so as to enable Mainland officials to exercise PRC Laws on immigration, customs and excise within the Hong Kong SAR.
5. As lawyers, we appreciate that no constitutional text is immutable to change or amendment. The Basic Law itself is described by our Courts as a living instrument. However, when changes are to be made to a constitution, especially when these changes concern the transfer of jurisdictional power and the application of foreign law, such changes must require serious justification and stringent scrutiny.
6. To amend the Basic Law for the purpose of shaving a few minutes off travel time is in our view, wholly unnecessary and completely devoid of common sense. Similarly and in addition, any attempt at implementing any Consensus that involves any twisting or contorting of the clear text and structure of the Basic Law would cause immense harm to the credibility of the Basic Law as Hong Kong’s constitutional document, as well as the rule of law.
7. Having incurred over HK$85 billion of tax-payer money to construct the Express Rail Link, irrespective of the economic or logistical merits of this project, the Progressive Lawyers Group recognize that the issue of Co-Location Arrangement will have to be resolved. We are currently exploring whether there can be legal alternatives to Mainland officials exercising powers in Hong Kong that can substantially achieve the same objectives, and will make our conclusions public at an appropriate time.”
8. We sincerely invite the Secretary for Justice to elaborate fully on proposals that are consistent with the Basic Law as currently implemented.
Progressive Lawyers Group 24 November 2015
Originally published in Stand News on 24 November 2015