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HCAL 409/2018
B B
[2018] HKCFI 703
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 409 OF 2018 E
____________
F
BETWEEN
G G
and
I I
O
Before: Hon Chow J in Court O
Date of Hearing: 28 March 2018
P Date of Decision: 29 March 2018 P
Q Q
___________________
R R
D E C I S I O N
___________________
S S
T INTRODUCTION T
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Respondent) was validly nominated as a candidate at the 2018 Legislative D
Council By-election for the Hong Kong Island Geographical Constituency
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(“the By-election”) by way of judicial review. For reasons which I shall
explain below, the answer is “no”. F
G BASIC FACTS G
O O
5. On 13 March 2018, the Applicant made the present
P application for leave to apply for judicial review to challenge the Decision. P
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6. In order to understand the Applicant’s complaint, it is first
R necessary to set out the relevant legal regime relating to the qualification of R
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promissory oath given by the person to the effect that, if D
elected, he or she will not do anything during his or her term
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of office that results in his or her being disqualified from
being elected as a Member at an election because of the F
operation of this or any other law”.
G G
10. Article 104 of the Basic Law (“BL104”) is also relevant for
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the purpose of the present discussion. It states as follows:-
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“When assuming office, the Chief Executive, principal officials,
members of the Executive Council and of the Legislative
J J
Council, judges of the courts at all levels and other members of
the judiciary in the Hong Kong Special Administrative Region
K must, in accordance with law, swear to uphold the Basic Law of K
the Hong Kong Special Administrative Region of the People’s
Republic of China and swear allegiance to the Hong Kong
L Special Administrative Region of the People’s Republic of L
China.”
M M
11. The requirements for a valid nomination under Section 40(1)
N N
(b)(i) and (iii)(E) must now be read together with BL104 because, on 7
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“To uphold the Basic Law of the Hong Kong Special
Administrative Region of the People’s Republic of China’ and to
R bear ‘allegiance to the Hong Kong Special Administrative R
Region of the People’s Republic of China’ as stipulated in Article
104 of the Basic Law of the Hong Kong Special Administrative
S Region of the People’s Republic of China, are not only the legal S
content which must be included in the oath prescribed by the
T
Article, but also the legal requirements and preconditions for T
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12. In the recent decision of Au J in Chan Ho Tin v Lo Ying-ki
D
Alan (Returning Officer for New Territories West Geographic D
Constituency) and Others, HCAL 162/2016 (13 February 2018), at
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paragraph 100, the learned Judge held that the declaration required to be
included in or accompany the nomination form of a candidate for an F
election under Section 40(1)(b)(i) is a “substantive” requirement which can
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only be satisfied if the nominee makes the declaration “genuinely and
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13. In the Form 86, the Applicant makes the following allegations
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against Mr Au:-
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necessary to do so (如果我哋見到有一的嘅抗爭,我哋係需 B
要黎到去做呢個行為,我唔介意再做一次。)
C C
D
See paragraphs 4 and 7 of the Form 86. Pausing here, I should mention D
that Mr Au has not filed any evidence for the purpose of resisting the
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present leave application, but maintains that he has a substantive answer on
the merits of the Applicant’s complaint, namely, that every act or utterance F
takes its meaning from its proper context and cannot be considered in
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isolation. This is not the appropriate occasion to examine the merits of
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Mr Au’s substantive answer to the Applicant’s complaint. For the present H
purpose, I shall proceed on the assumption that the Applicant’s aforesaid
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factual allegations can be proved at the substantive hearing of the
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14. On the basis of the allegations mentioned in paragraph 13
L
above, the Applicant contends that Mr Au never intends to, and does not L
and will not, uphold the Basic Law or pledge allegiance to the HKSAR,
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and that his declaration included in or accompanying his nomination form
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for the By-election was false and/or not genuinely or truthfully made (see N
paragraphs 5 and 8 of the Form 86).
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requirement of Section 40(1)(B)(iii)(E) (see D
paragraph 34 of the Form 86).
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genuinely and truly commit to upholding the Basic Law” (see paragraph 51
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of Mr Wong’s Skeleton Submissions dated 26 March 2018).
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grant leave to apply for judicial review. The grounds of the intended
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has no sufficient standing to challenge the Decision by way of M
judicial review. Accordingly, the present application for leave
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to apply for judicial review should be dismissed.
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20. Upon the court’s direction, notice of the present application
P was given to the Secretary for Justice as Putative Interested Party. By P
letter dated 27 March 2018, the Secretary for Justice informed the court
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that she does not propose to make any submissions at the hearing on
R 28 March 2018 and asked to be excused from attending the hearing. The R
T DISCUSSION T
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(a) the ground that the person declared by the Returning D
Officer in accordance with regulations in force under
the Electoral Affairs Commission Ordinance
E (Cap. 541) to have been elected as a Member at the E
election was not duly elected because -
Q
22. Section 62 goes on to provide that that an election petition Q
may be lodged, in the case of an election for a constituency - (a) by 10 or
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more electors entitled to vote at the election; or (b) by a person claiming to
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have been a candidate in the election. S
T T
23. On the other hand, Section 73 states as follows:-
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grounds of challenge under this section include the situation where a D
person, who has been declared by the Returning Officer to have been
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elected as a member at an election, was not duly elected because (a) he
was ineligible to be, or was disqualified from being, a candidate at the F
election (sub-paragraph (1)(a)(i)), and (b) material irregularity occurred in
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relation to the election, or to the polling or counting of votes at the election
H
(sub-paragraph 1(a)(iv)). These grounds are apt to cover cases where the H
person was not eligible to be nominated as a candidate under Section 37,
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was disqualified from being nominated as a candidate and from being
J
elected as a member under Section 38, or was not validly nominated as a J
candidate under Section 40. The focus of the proceedings would be on the
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“election”, and the court is required to determine whether the nomination
L was correct, whether the person declared by the Returning Officer to have L
been elected in the election was or was not duly elected, and (if the person
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declared by the Returning Officer to have been elected was not duly
N elected) whether some other person was duly elected instead (see Section N
67(1) and (2)).
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P
26. On the other hand, “disqualification proceedings” under P
Section 73 relate to challenges to a person’s qualification to act as a
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member of the Legislative Council, and provide a means to an applicant to
R
apply to restrain a person from acting as a member of the Legislative R
Council where he is disqualified from so acting. That is the only ground
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on which an application may be made under this section. The focus of the
T
proceedings would be on the qualification of the person who acts or claims T
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would be a declaration to that effect and an injunction to restrain the D
person from so acting (see Section 73(3) and (4)).
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27. It may also be noted that the standing requirements under the
F
two types of proceedings are different: under Section 61, an election
G petition may only be lodged by 10 or more electors entitled to vote at the G
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28. In the present case, the Applicant seeks to challenge the
K Returning Officer’s Decision to accept Mr Au’s nomination as being a K
Officer to do so) because, it is said, Mr Au never intends to, and does not
N N
and will not, uphold the Basic Law or pledge allegiance to the HKSAR and
O thus his declaration and promissory oath included in his nomination form O
to find 9 other electors to join him in an election petition. This was stated
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not an obstacle in the present case. D
31. In Re Lau San Ching [1995] 2 HKLR 95, it was held by the
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majority of the Court of Appeal (Nazareth and Litton JJA) that any
O challenge by a candidate (or prospective candidate) to a decision of a O
Godfrey JA, the third member of the Court of Appeal, considered that the
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remedy of judicial review was not absolutely barred, but “very compelling
S reasons” must exist before the court would consider allowing intervention S
before the date of the election by way of judicial review. Although Lau
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Legislative Council Ordinance. D
J J
33. In Hans Richard Mahncke v Electoral Affairs Commission,
K HCAL 90/2012 (26 July 2012), Lam J (as he then was) applied K
Lau San Ching and held that an applicant who had reason to believe that
L L
his nomination as a candidate at a Legislative Council election might be
M wrongly rejected had to submit a nomination first and wait until the end of M
the election to challenge the same by election petition, and could not
N N
proceed by way of an application of judicial review prior to the election.
O O
not the only means by which an election to return the Chief Executive
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could be questioned. However, the Court of Final Appeal also held that
S where an election was questioned by persons eligible to lodge an election S
petition under Section 33 upon any of the statutory grounds set out in
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35. In Leung Tin Kei Edward v Electoral Affairs Commission,
E HCAL 133/2016 (27 July 2016), Au J held that any challenge to a E
H H
36. In Chief Executive v President of the Legislative Council
I [2016] 6 HKC 541 (30 November 2016), which concerned proceedings I
brought by the Chief Executive and the Secretary for Justice by way of
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judicial review as well as under Section 73 against two elected members of
K the Legislative Council for failing to properly take the Legislative Council K
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alternative remedy by way of Section 73 is available, the court D
should consider whether an applicant who is not an elector in
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the constituency of the member concerned should be allowed
to make the challenge and enquire whether the Secretary for F
Justice or any elector is willing to bring proceedings under
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Section 73. The court must also examine the locus standi of
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such an applicant carefully if neither the Secretary for Justice H
nor any elector in that constituency is willing to bring
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proceedings under Section 73.”
J J
37. Pausing here, it may be noted that:-
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(1) Section 21J(1)(a) of the High Court Ordinance provides that
L where a person not entitled to do so acts in any public office L
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(2) Section 21K(1)(b) of that Ordinance further provides that an O
application to the Court of First Instance for an injunction
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under Section 21J shall be made by way of an application for
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judicial review. Q
and Others, HCAL 189/2016 (27 July 2017), which concerned a challenge,
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by way of an application for judicial review, to the oath or purported oath
T taken by an elected member of the Legislative Council by an applicant T
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who was not an elector in the relevant constituency, Au J set aside the
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ex parte leave granted to the applicant to apply for judicial review on the
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ground of lack of sufficient interest or standing. In coming to that
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conclusion, the learned Judge held that:- D
(1) Section 73 provides the proper and principal legal avenue for
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an elector to take out legal proceedings seeking substantive
declarations against a Legislative Council member who has F
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(2) The “elector” envisaged under Section 73(1) who is entitled to I
take out the relevant proceedings must be a registered elector
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in the constituency to which the purported Legislative Council
P P
39. In summary, the following propositions can be derived from
Q the above authorities:- Q
R
(1) Where a person is entitled to challenge a Legislative Council R
election, or the qualification of an elected person from acting
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as a member of the Legislative Council, by way of a specified
T
statutory procedure on specified grounds, he is generally T
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the situation referred to in (2) above on the ground of lack of I
standing or upon the court’s exercise of discretion.
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(4) Whether the remedy of judicial review should be refused on
K the ground of lack of standing or as a matter of discretion K
judicial review.
Q Q
R
40. In the present case, since the Applicant is, in my view, able to R
ventilate his complaint of the Returning Officer’s Decision by way of an
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election petition under Section 61 or, alternatively, Mr Au’s qualification to
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act as a member of the Legislative Council by way of disqualification T
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proceedings under Section 73, I consider that it is not open to the Applicant
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to proceed by way of judicial review.
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present matter because [it] does not cover the challenge of a declaration
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and promissory oath under s.40 of the [Legislative Council Ordinance]”
G and the court “may grant … injunctive relief pursuant to s.21J of the High G
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Officer from publishing in the Gazette a notice declaring Mr Au to have D
been duly elected as a member of the Legislative Council for the
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Hong Kong Island Geographical Constituency, or Mr Au from entering
into office as a member of the Legislative Council. Since no application F
for interim relief was made, I express no view on the merits of such
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application, save that I agree with the submissions of Mr Shieh and
H
Mr Mok that the only legal effect of the publication by the Returning H
Officer of a notice in the Gazette that Mr Au was duly elected as a member
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of the Legislative Council is to start the period within which an election
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petition may be lodged under Section 65(1). What seems to me to be clear J
is that the Applicant’s professed need for interim relief could not be a good
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reason for proceeding by way of judicial review. In any event, I see no
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in the Gazette (sought by the Applicant by way of amendment in the draft D
Amended Form 84) is a valid justification for the Applicant to proceed by
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way of judicial review in this matter.
F
44. There are two further reasons why I am not minded to grant to
G the Applicant leave to apply for judicial review in the present case. First, I G
accept Mr Mok’s submission that the Applicant does not have sufficient
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standing to apply for judicial review in this matter because he could, with
I 9 other electors of his choice, proceed by way of an election petition. To I
L L
45. Second, as earlier mentioned, both grounds of the
M Applicant’s application allege that the Returning Officer has “no power” to M
in that sense the Decision may be said to have been wrongly made), I am
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unable to see how it can be argued that the Returning Officer has, as a
Q matter of law, no power to accept the validity of Mr Au’s nomination. Q
S 46. For the avoidance of doubt, I should make it clear that I have S
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of the present application for leave to apply for judicial review. D
E DISPOSITION E
application for leave to apply for judicial review, as well as his summons
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dated 23 March 2018.
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paragraph 17, are well settled, and do not have to be repeated here. In the
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present case, I consider that the Applicant ought to bear the costs of Mr Au
L and the Returning Officer because the present application is thoroughly L
ill -conceived, the Applicant does not have sufficient standing to pursue the
M M
present application for judicial review, and the attendance of Mr Shieh and
N Mr Mok on behalf of Mr Au and the Returning Officer respectively has N
There shall be no order as to costs as between the Secretary for Justice and
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the other parties to this application.
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E (Anderson Chow) E
Judge of the Court of First Instance
High Court F
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Mr Tim Wong, instructed by Peter K H Wong & Co, for the Applicant
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Mr Paul Shieh, SC, Mr Jeffrey Tam and Mr Jason Lee, instructed by Ho,
Tse, Wai & Partners, for the 1st Putative Respondent
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Mr Johnny Mok, SC and Mr Jenkin Suen instructed by Department of
J Justice, for the 2nd Putative Respondent J
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N N
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P P
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