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HCAL 51/2012

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 51 OF 2012
____________
IN THE MATTER of an Application
by the Applicant for Leave to Apply
for J udicial Review pursuant to
Order 53, rule 3 of the Rules of the
High Court, Cap 4A
and
IN THE MATTER of
sections 39(1)(b)(i) and 39(1)(d) of
the Legislative Council Ordinance,
Cap 542
and
IN THE MATTER of Articles 25, 26,
28 and 39 of the Basic Law and/or
Articles 5(1) and 11(4) and 21 of the
Hong Kong Bill of Rights and/or
Articles 9(1) and 14(4) and 25 of the
International Covenant on Civil and
Political Rights 1966
____________
BETWEEN
WONG HIN WAI Applicant

and

SECRETARY FOR J USTICE Respondent
____________
AND
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HCAL 54/2012

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 54 OF 2012
____________
IN THE MATTER of an Application
by the Applicant for Leave to Apply
for J udicial Review pursuant to
Order 53, rule 3 of the Rules of the
High Court, Cap 4A
and
IN THE MATTER of
sections 39(1)(b)(i) and 39(1)(d) of
the Legislative Council Ordinance,
Cap 542
and
IN THE MATTER of Articles 25, 26,
28 and 39 of the Basic Law and/or
Articles 5(1) and 11(4) and 21 of the
Hong Kong Bill of Rights and/or
Articles 9(1) and 14(4) and 25 of the
International Covenant on Civil and
Political Rights 1966
____________
BETWEEN
LEUNG KWOK HUNG Applicant

and

SECRETARY FOR J USTICE Respondent
____________
(Heard together)
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Before: Hon Lam J in Court
Dates of Hearing: 6 and 14 J une 2012
Date of Decision: 14 J une 2012
Date of Reasons for Decision: 21 J une 2012

________________________________
R E A S O N S F O R D E C I S I O N
________________________________
1. These two cases were heard together in view of the
commonality in the issues being involved. In both cases, challenge is
mounted against the disqualification provisions under Section 39(1)(b)(i)
and (d) of the Legislative Council Ordinance [the Impugned Provisions]
regarding their constitutionality. The main relief sought is in the
following terms,
A declaration that sections 39(1)(b)(i) and 39(1)(d) of the
LCO are inconsistent with Articles 25, 26, 28 and 39 of the
Basic Law of the Hong Kong Special Administrative Region
and/or Articles 5(1), 5(4) and 21 of section 8 of the Hong Kong
Bill of Rights Ordinance Cap 383 and/or Articles 9(1), 9(4) and
25 of the International Covenant on Civil and Political Rights
1966, and are unconstitutional.
2. The Applicant in HCAL 51 of 2012, Wong Hin Wai
[Wong] was convicted in the Eastern Magistracy on 11 J anuary 2012 of
behaving in a disorderly manner in a public place, contrary to Section
17B(2) of the Public Order Ordinance Cap 245 in respect of an incident
on 10 April 2011. The magistrate sentenced him to 14 days
imprisonment. He lodged an appeal against the conviction and sentence.
He was granted bail pending appeal. The appeal is unlikely to be heard
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before the nomination period for the 2012 Legislative Council [LegCo]
Election.
3. The Legislative Council Election will be held on
9 September 2012. The nomination period (14 days) is likely to be in the
second half of J uly or early August 2012.
4. Wong intends to stand for election in the LegCo Election.
However, by reason of the Impugned Provisions, he is disqualified from
being nominated unless he served his sentence in the meantime despite
his appeal. I will set out Section 39(1) to (4) below,
(1) A person is disqualified from being nominated as a
candidate at an election, and from being elected as a
Member, if the person
(a) is
(i) a judicial officer; or
(ii) a prescribed public officer; or
(iii) an officer of the Legislative Council or a
member of staff of The Legislative Council
Commission; or
(b) has, in Hong Kong or any other place, been
sentenced to death or imprisonment (by whatever
name called) and has not either
(i) served the sentence or undergone such other
punishment as a competent authority may have
been substituted for the sentence; or
(ii) received a free pardon; or
(c) has been convicted of treason; or
(d) on the date of nomination, or of the election, is
serving a sentence of imprisonment; or
(e) without limiting paragraph (b), where the election is
to be held or is held within 5 years after the date of
the persons conviction, is or has been convicted
(i) in Hong Kong or any other place, of an offence
for which the person has been sentenced to
imprisonment, whether suspended or not, for a
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term exceeding 3 months without the option of a
fine; or
(ii) of having engaged in corrupt or illegal conduct
in contravention of the Elections (Corrupt and
Illegal Conduct) Ordinance (Cap. 554); or
(iii) of an offence against Part II of the Prevention of
Bribery Ordinance (Cap. 201); or
(iv) of any offence prescribed by regulations in force
under the Electoral Affairs Commission
Ordinance (Cap. 541); or
(f) is
(i) ineligible to be a candidate, or to be elected as a
Member, at the election; or
(ii) disqualified from being a candidate, or from
being elected as a Member, at the election,
because of the operation of this or any other law; or
(g) is a representative or salaried functionary of a
government of a place outside Hong Kong; or
(h) is a member of any national, regional or municipal
legislature, assembly or council of any place outside
Hong Kong, other than a peoples congress or
peoples consultative body of the Peoples Republic
of China, whether established at the national or local
level; or
(i) is an undischarged bankrupt or, within the previous
5 years, has either obtained a discharge in bankruptcy
or has entered into a voluntary arrangement within
the meaning of the Bankruptcy Ordinance (Cap. 6)
with the persons creditors, in either case without
paying the creditors in full.
(2) A person is also disqualified from being nominated as a
candidate at an election if the person has been found
under the Mental Health Ordinance (Cap. 136) to be
incapable, by reason of mental incapacity, of managing
and administering his or her property and affairs, but a
person disqualified under this subsection is eligible for
nomination as a candidate if, under that Ordinance, it is
subsequently found that the person has become capable of
managing and administering his or her property and
affairs.
(3) A person is also disqualified from being elected as a
Member if the person has been found under the Mental
Health Ordinance (Cap. 136) to be incapable, by reason of
mental incapacity, of managing and administering his or
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her property and affairs, but a person disqualified under
this subsection ceases to be disqualified if, under that
Ordinance, it is subsequently found that the person has
become capable of managing and administering his or her
property and affairs.
(4) A person is also disqualified from being elected as a
Member for a functional constituency (other than the
District Council (first) functional constituency and the
District Council (second) functional constituency) if,
since the close of nominations, the person has ceased to
have a substantial connection with the constituency.
5. The Applicant in HCAL 54 of 2012, Leung Kwok Hung
[Leung], who is an incumbent LegCo member, faced a similar dilemma.
On 19 March 2012, he was convicted of two charges of criminal damage,
one charge of acting in a disorderly manner at a public gathering and one
charge of behaving in a noisy or disorderly manner in a public place in
the Kowloon City Magistracy. He was sentenced on 20 March 2012 to
2 months imprisonment for the criminal damage charges, 5 weeks
imprisonment for acting disorderly, 5 weeks imprisonment for behaving
in a noisy and disorderly manner. The magistrate also ordered a total of
2 months imprisonment to be served concurrently. Leung lodged an
appeal against conviction and sentence and he obtained bail pending
appeal. Again, it is unlikely that the appeal can be heard prior to the
nomination period. Leung also intends to stand for election in the LegCo
Election.
6. By reason of his sentence, Leung also faced a motion to
relieve him of his duty as LegCo member pursuant to Article 79(6) of the
Basic Law, which provides,
Article 79
The President of the Legislative Council of the Hong
Kong Special Administrative Region shall declare that a
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member of the Council is no longer qualified for the office
under any of the following circumstances:
(1) When he or she loses the ability to discharge his or her
duties as a result of serious illness or other reasons;
(2) When he or she, with no valid reason, is absent from
meetings for three consecutive months without the
consent of the President of the Legislative Council;
(3) When he or she loses or renounces his or her status as a
permanent resident of the Region;
(4) When he or she accepts a government appointment and
becomes a public servant;
(5) When he or she is bankrupt or fails to comply with a court
order to repay debts;
(6) When he or she is convicted and sentenced to
imprisonment for one month or more for a criminal
offence committed within or outside the Region and is
relieved of his or her duties by a motion passed by two-
thirds of the members of the Legislative Council present;
and
(7) When he or she is censured for misbehaviour or breach of
oath by a vote of two-thirds of the members of the
Legislative Council present.
7. The motion was debated on 19 April 2012 in the LegCo.
Out of the 46 members who were present, 19 voted in favour of the
motion and 25 voted against it. One member abstained. Since the motion
did not attain the requisite majority, it was negatived. Leung continued to
serve as an incumbent LegCo member.
8. In his Second Affirmation, Leung set out the history of his
previous convictions and sentences and his election results in the previous
LegCo elections at paras 11 and 12. I quote the relevant data,
11. The following are the occasions when I was sentenced to
imprisonment:
(1) On 5 June 1979, I was sentenced to one months
imprisonment for Unlawful Assembly (contrary to
section 18 of the Public Order Ordinance, Cap. 245)
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(2) On 11 May 1999, I was sentenced to 14 day
imprisonment suspended for 12 months for Contempt
of legislative Council (contrary to section 17 of the
Legislative Council (Powers and Privileges)
Ordinance, Cap. 382).
(3) On 26 May 2000, I was sentenced to 7 day
imprisonment for Contempt of Legislative Council
(contrary to section 17 of the Legislative Council
(Powers and Privileges) Ordinance, Cap. 382). On
the same day, I was sentenced to 7 day imprisonment
for a Breach of Suspended Sentence (contrary to
section 109F the Criminal Procedure Ordinance,
Cap. 221). The above sentences were to be served
consecutively.
(4) On 27 March 2001, I was sentenced to 7 day
imprisonment for Contempt of Legislative Council
(contrary to section 17 of the Legislative Council
(Powers and Privileges) Ordinance, Cap. 382)
(5) On 23 April 2002, I was sentenced to 2 weeks
imprisonment for Contempt of Legislative Council
(contrary to section 17 of the Legislative Council
(Powers and Privileges) Ordinance, Cap. 382).

12. The following are my election results in the previous
LegCo Elections in which I was nominated as a candidate:
(1) I received 18,235 votes in the 2000 LegCo Election
and was not elected as a Legislative Council member
in the 2000 LegCo Election. The percentage of votes
which I received was 5.9%.
(2) I received 60,925 votes in the 2004 LegCo Election
and was being elected as a Legislative Council
member in the 2004 LegCo Election. The percentage
of votes which I received was 14.1%.
(3) I received 44,763 votes in the 2008 LegCo Election
and was being elected as a Legislative Council
member in the 2008 LegCo Election. The percentage
of votes which I received was 12.4%.
(4) I received 108,927 votes in the 2010 LegCo By-
election and was being elected as a Legislative
Council member in the 2010 LegCo By-election.
The percentage of votes which I received was
79.7%.
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The relevant constitutional framework and the provisions relied upon
9. Article 66 of the Basic Law provides that the LegCo shall be
the legislature of the Hong Kong Special Administrative Region. Its
composition is governed by Article 67. At least 80 per cent of its
membership shall be composed of Chinese citizens who are permanent
residents of Hong Kong with no right of abode in any foreign country.
10. Article 68 is important, and I quote,
Article 68
The Legislative Council of the Hong Kong Special
Administrative Region shall be constituted by election.
The method for forming the Legislative Council shall be
specified in the light of the actual situation in the Hong Kong
Special Administrative Region and in accordance with the
principle of gradual and orderly progress. The ultimate aim is
the election of all the members of the Legislative Council by
universal suffrage.
The specific method for forming the Legislative Council
and its procedures for voting on bills and motions are
prescribed in Annex II: Method for the Formation of the
Legislative Council of the Hong Kong Special Administrative
Region and Its Voting Procedures
11. Annex II Part I set out the method for the formation of the
LegCo, specifically prescribing the composition for the first three terms.
12. Article 69 provides that (apart from the first term), the term
of office of the LegCo shall be four years.
13. Article 73 sets out the powers and functions of the LegCo
and Article 74 provides for how bills may be introduced by members.
14. I have already referred to Article 79(6).
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15. Therefore the Basic Law envisages that membership to the
LegCo, which plays the important role of the legislature for Hong Kong,
by election. Article 26 of the Basic Law confers the rights pertaining to
election, including LegCo election, to permanent residents. It reads,
Permanent residents of the Hong Kong Special Administrative
Region shall have the right to vote and the right to stand for
election in accordance with law.
16. These are rights to be exercised in accordance with law. The
law is to be found in the Hong Kong Bill of Rights [BoR], Article 21 of
which reads:
Right to participate in public life
Every permanent resident shall have the right and the
opportunity, without any of the distinctions mentioned in
article 1(1) and without unreasonable restrictions
(a) to take part in the conduct of public affairs, directly or
through freely chosen representatives;
(b) to vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression
of the will of the electors;
(c) to have access, on general terms of equality, to public
service in Hong Kong.
17. Chief J ustice Li considered the permissible restrictions that
could be imposed on fundamental rights and freedoms under Chapter III
of the Basic Law on proper construction of Article 39 in Gurung Kesh
Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at paras 26 to
28. As for rights protected both under the Basic Law and the BoR, His
Lordship said at para 26,
Thus, in the context of rights recognized by the ICCPR as
applied to Hong Kong (whether or not such rights are also
enshrined in the Basic Law), art 39(2) spells out the two
requirements which any purported restriction must satisfy.
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The two requirements are: (1) prescribed by law; and (2) the restrictions
shall not contravene the provisions of Article 39(1), viz it must be
consistent with the ICCPR as applied to Hong Kong prior to 1 J uly 1997.
18. The Applicants said the Impugned Provisions are
inconsistent with Article 21 of the BoR and Article 26 of the Basic Law.
They also relied on the right to equality under Article 25 of the Basic Law.
19. In addition, they asked the court to strike down the
Impugned Provisions by reason of the curtailment of their rights to liberty,
in particular their rights to bail pending appeal, with reference to
Article 28 of the Basic Law and Article 5(1) and (4) of the BoR.
The proper approach in addressing the challenge based on Article 21
BoR and Article 26 of the Basic Law
20. In Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD
166, A Cheung J (as he then was) had to consider what is the correct
approach in determining whether a restriction is reasonable in the context
of Article 21 of the BoR. His Lordship held that the proper approach is to
apply the proportionality test. At para 73, he said,
Furthermore, for a right as fundamental as the right to vote,
a restriction that is not proportionate to the achievement of the
(legitimate) aim that it seeks to achieve and that goes beyond
what is necessary to achieve that aim can hardly be said to be a
reasonable one.
That was a conclusion reached after a full discussion and review of the
relevant local and international authorities. It was also premised on the
proposition that despite the difference in the language between Article 3
of Protocol No 1 of the ECHR and Article 21 of the BoR, the substance
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of the rights are the same and European jurisprudence can provide
guidance on the construction of the latter (see para 102). His Lordship, in
essence, applied the approach of Hirst v United Kingdom (No 2) (2006)
42 EHRR 41 to the local context in rejecting the justifications offered by
the Government for the restriction on prisoners right to vote, see paras
104 to 108 of Chan Kin Sum.
21. In the present case, Mr Thomas SC (who also appeared for
Secretary for J ustice in Chan Kin Sum) repeated his contention that the
court should not adopt the proportionality test, at least not a
proportionality test with the requirement that the restriction is no more
than what is necessary to achieve the legitimate aim. In addition to cases
he cited before A Cheung J , counsel referred to Solicitor v Law Society of
Hong Kong (2003) 6 HKCFAR 570 paras 31 to 34 for a proportionality
test without any reference to necessity. At para 31, the Chief J ustice said,
The limitation imposed must pursue a legitimate purpose and
there must be reasonable proportionality between the limitation
and the purpose sought to be achieved. These dual
requirements will be referred to collectively as the
proportionality test.
22. Mr Thomas also submitted that conceptually the right to vote
and the right to stand for election stand on different footings though both
rights are protected under art 26 BL and art 21 BoR. Thus the
jurisprudence on the right to vote cannot be carried across for the purpose
of resolving cases on the right to stand for election. In this connection,
counsel cited the decision of the Supreme Court of the United Kingdom
in R (Barclay) v Lord Chancellor [2010] 1 AC 464 at paras 53 to 64 and
the judgment of the Grand Chamber of the European Court of Human
Rights in Zdanoka v Latvia (2007) 45 EHRR 17 paras 102 to 115. Those
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cases concerned the rights under Article 3 of Protocol No.1 to the
European Convention on Human Rights, which is in the following terms,
The High Contracting Parties undertake to hold free elections
at reasonable intervals by secret ballot, under conditions which
will ensure the free expression of the opinion of the people in
the choice of the legislature.
23. In Zdanoka, the Grand Chamber said at para 115(e),
As regards the right to stand as a candidate for election,
i.e. the so-called passive aspect of the rights guaranteed by
Art 3 of Protocol No 1, the Court has been even more cautious
in its assessment of restrictions in that context than when it has
been called upon to examine restrictions on the right to vote, i.e.
the so-called active element of the rights under Art 3 of
Protocol No 1. In the Melnychenko judgment cited above, the
Court observed that stricter requirements may be imposed on
eligibility to stand for election to Parliament than is the case for
eligibility to vote. In fact, while the test relating to the active
aspect of Art 3 of Protocol No 1 has usually included a wider
assessment of the proportionality of the statutory provisions
disqualifying a person or a certain group of persons from the
right to vote, the Courts test in relation to the passive aspect
of the above provision has been limited largely to a check on
the absence of arbitrariness in the domestic procedures leading
to disqualification of an individual candidate.
24. Para 115(b) and (c) on implied limitations are also relevant
for our purposes,
(b) The concept of implied limitations under Art.3 of
Protocol No.1 is of major importance for the determination of
the relevance of the aims pursued by the restrictions on the
rights guaranteed by this provision. Given that Art.3 is not
limited by a specific list of legitimate aims such as those
enumerated in Arts 8 to 11, the contracting states are therefore
free to rely on an aim not contained in that list to justify a
restriction, provided that the compatibility of that aim with the
principle of the rule of law and the general objectives of the
Convention is proved in the particular circumstances of a case.
(c) The implied limitations concept under Art.3 of Protocol
No.1 also means that the Court does not apply the traditional
tests of necessity or pressing social need which are used in
the context of Arts 8-11. In examining compliance with Art.3
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of Protocol No.1, the Court has focused mainly on two criteria:
whether there has been arbitrariness or a lack of proportionality,
and whether the restriction has interfered with the free
expression of the opinion of the people. In this connection, the
wide margin of appreciation enjoyed by the contracting states
has always been underlined. In addition, the Court has stressed
the need to assess any electoral legislation in the light of the
political evolution of the country concerned, with the result that
features unacceptable in the context of one system may be
justified in the context of another.
25. These passages provide some support for the submission of
Mr Thomas on the difference between Art 21 of BoR and the application
of the justification test in respect of other articles in the BoR, but only to
the limited extent of the non-application of the traditional test of necessity.
The Grand Chamber explicitly referred to proportionality as one of the
criteria for assessing compliance with Art 3 of Protocol No 1.
26. In Barclay, Lord Collins summarized the relevant European
jurisprudence in several propositions set out at paras 52 to 64 of the
judgment. The relevant test can be found at paras 58 and 59,
58. Sixth, limitations on the exercise of the right to vote or
stand for election must be imposed in pursuit of a legitimate
aim, must not be arbitrary or disproportionate, and must not
interfere with the free expression of the opinion of the people in
the choice of the legislature
59. Seventh, such limitations must not curtail the rights under
article 3 to such an extent as to impair their very essence, and
deprive them of their effectiveness. They must reflect, or not
run counter to, the concern to maintain the integrity and
effectiveness of an electoral procedure aimed at identifying the
will of the people through universal suffrage.
27. In the latest decision of the Grand Chamber on Art 3 of
Protocol No 1, Scoppola v Italy (No 3) Application no 126/05, 22 May
2012, the general approach can be found at paras 83 to 84 of the
judgment,
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83. Nevertheless, the rights enshrined in Article 3 of Protocol
No. 1 are not absolute. There is room for implied limitations
and the Contracting States must be afforded a margin of
appreciation in this sphere. The Court has repeatedly affirmed
that the margin in this area is wide (see Mathieu-Mohin and
Clerfayt, cited above, 52; Matthews v. the United Kingdom
[GC], no. 24833/94, 63, ECHR 1999-I; Labita v. Italy [GC],
no. 26772/95, 201, ECHR 2000-IV; and Podkolzina v. Latvia,
no.

46726/99, 33, ECHR 2002-II). There are numerous ways
of organising and running electoral systems and a wealth of
differences, inter alia, in historical development, cultural
diversity and political thought within Europe which it is for
each Contracting State to mould into its own democratic vision
(see Hirst (no. 2) [GC], cited above, 61).
84. However, it is for the Court to determine in the last resort
whether the requirements of Article 3 of Protocol No. 1 have
been complied with; it has to satisfy itself that the conditions do
not curtail the rights in question to such an extent as to impair
their very essence and deprive them of their effectiveness; that
they are imposed in pursuit of a legitimate aim; and that the
means employed are not disproportionate (see Mathieu-Mohin
and Clerfayt, cited above, 52). In particular, any conditions
imposed must not thwart the free expression of the people in
the choice of the legislature in other words, they must reflect,
or not run counter to, the concern to maintain the integrity and
effectiveness of an electoral procedure aimed at identifying the
will of the people through universal suffrage. Any departure
from the principle of universal suffrage risks undermining the
democratic validity of the legislature thus elected and the laws
it promulgates. Exclusion of any groups or categories of the
general population must accordingly be reconcilable with the
underlying purposes of Article 3 of Protocol No. 1 (see Hirst
(no.

2) [GC], cited above, 62).
28. Similar statements can be found in the judgment in Frodl v
Austria (2011) 52 EHRR 5. At para 35 of the judgment, the court
expressed the principle of proportionality in these terms,
The principle of proportionality requires a discernible and
sufficient link between the sanction and the conduct and the
circumstances of the individual concerned.
29. These last two cases, like Chan Kin Sum, were about the
right to vote. But the principle of proportionality is equally applicable to
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the right to stand for election though stricter requirement can be imposed
on eligibility to stand as compared with eligibility to vote. Given the
distinction between the role of a voter and the role of candidate for Legco
election (who, if elected, would have to perform the duties of a Legco
member), the legitimate aims for which reasonable restriction can be
imposed can be different. Thus, the criteria for eligibility for the latter
could be considerably stricter than those for the former. This is not
disputed by Mr Dykes SC. However, the criteria restricting the right to
stand for election must still subject to the proportionality test as
demonstrated by Zdanoka and Barclay, both of which were cases on right
to stand for election.
30. The principle of proportionality has also been applied in the
context of ICCPR. In Nowaks CCPR Commentary, 2
nd
Edn para 27 at
p 578-579, in the discussion of reasonable restriction in the context of the
right to be elected under Article 25 of ICCPR (the equivalent of
Article 21 of BoR), it is said that the restriction cannot be excessive or
discriminatory and must be adequately justified. At footnote 70, the
learned author commented that the requirement of special justification
was inferred by the Committee from the principle of proportionality.
Further at paras 48 to 49 (at p 592-3), the origin of the phrase without
unreasonable restrictions was traced back to the Yugoslav-French
proposal at the drafting stage. After a review of the cases considered by
the Committee, the learned author concluded at para 49,
it is difficult to draw general conclusions as to the
permissibility of restrictions on democratic participation. Many
questions remain controversial, for example: whether
persons convicted of minor criminal offences may be excluded
from right to vote In other words, whether specific
restrictions on various political rights are reasonable may only
be evaluated on a case-by-case basis by drawing on the
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principle of proportionality and taking into account the overall
political situation of the State concerned.
31. The proportionality test was adopted by Cheung J (as
Cheung J A then was) in the context of right to stand for election under
Article 21 of BoR in Lau San Ching v Liu, Apollonia (1995) 5 HKPLR 23.
Mr Thomas submitted that the test was agreed between the parties. That
may be so. However, as evident from the judgment, Cheung J also
reviewed the relevant cases on the topic when His Lordship agreed to
adopt the same approach. Lau San Ching was cited by Cheung J in
Chan Kin Sum at para 73.
32. In the context of election for the Medical Council, Chu J (as
she then was) also applied the proportionality test with reference to
Article 21 of BoR in Tse Hung Hing v Medical Council [2010] 1 HKLRD
111. Though it was a judgment given after parties had agreed on the
manner in which the case was to be disposed of, Her Ladyship did give
reasons for making the order at the request of the parties. It is also plain
from the judgment that Her Ladyship did not simply endorse the agreed
position of the parties (as she was entitled to). Instead, Her Ladyship did
give her independent consideration to the submissions of the parties and
explained in her judgment why she held the restriction in question to be
unreasonable. At para 9 of her judgment, Her Ladyship applied the
proportionality test.
33. Having considered the authorities and the submissions of the
parties, I come to the conclusion that as a matter of Hong Kong law,
whether a restriction is unreasonable in the context of Article 21 of BoR
should be determined by reference to the following test,
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(a) Whether the restriction is imposed to pursue a legitimate aim;
(b) Whether there is a rational connection between the aim and
the restriction adopted;
(c) Whether the restriction is proportionate.
34. In view of the European jurisprudence on Article 3 of
Protocol No 1 discussed above (where a distinction was drawn with the
necessity test under other articles of the ECHR), I refrain from using any
criteria based on necessity or the third limb of the justification test laid
down by the Chief J ustice Li in Secretary for Justice v Yau Yuk Lung
(2007) 10 HKCFAR 335 at p 349 in the context of right to equal
treatment under Article 25 of the Basic Law. The concept of no more
than necessary in the context of that test has recently been discussed by
Chief J ustice Ma in Fok Chun Wa v Hospital Authority FACV 10 of 2011,
2 April 2012, at paras 75 to 77.
35. It does not matter whether the test is called a proportionality
test or a reasonable test. In the context of Article 21 of BoR, the criterion
of proportionality (the third limb) is to ensure that the restriction does not
curtail the rights in question to such an extent as to impair their very
essence or to deprive them of their effectiveness, and there has to be a
discernible and sufficient link between the sanction and the conduct and
the circumstances of the individual concerned. In the application of the
test, the court must also have regard to the historical and current state of
political development in Hong Kong. This has been emphasized in the
European jurisprudence, as summarized in the fourth proposition of
Lord Collins in Barclay at para 56,
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Fourth, the content of the obligation under article 3 varies in
accordance with the historical and political factors specific to
each state; and for the purposes of applying article 3, any
electoral legislation must be assessed in the light of the political
evolution of the country concerned, so that features which
would be unacceptable in the context of one system may be
justified in the context of another
The history of the disqualification provision in the Impugned Provisions
36. In the Affidavit of the Secretary for Constitutional and
Mainland Affairs, he set out the legislative history in Hong Kong
regarding restrictions imposed on the right of a convicted person to stand
for election. He traced the first introduction of a similar provision to
Clause 6(b) of the Urban Council Bill 1955, which was passed without
any amendment. The provision was in these terms,
6. A person shall be disqualified for being elected or being
nominated for election or being appointed or holding office as
an ordinary member if he
(a) holds any office of emolument under the Crown other
than as a member of the Defence Force and Auxiliary
Services or Hong Kong Police Reserve Force or any
office of emolument in the gift or disposal of the Council
or any committee thereof or having held such office has
been dismissed therefrom;
(b) has in any part of Her Majestys Dominions or in any
territory under Her Majestys Protectorate or in any
territory in which Her Majesty has from time to time
jurisdiction been sentenced by one of Her Majestys
Courts to death or imprisonment (by whatever name
called) for a term exceeding twelve months and has not
either suffered the punishment to which he was sentenced
or such other punishment as may by competent authority
have been substituted therefor or received a free pardon;
(c) has been convicted of treason;
(d) is disqualified for being elected or being nominated for
election or being appointed or holding office as an
ordinary member under any enactment relating to corrupt
and illegal practices;
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(e) is a member of Parliament, assembly or council whether
central or local of a foreign government or a salaried
functionary of such government;
(f) is an undischarged bankrupt or within five years before
has either obtained his discharge in bankruptcy or has
entered into a composition with his creditors, in either
case, without paying his creditors in full.
37. A similar provision was found in Clause 10(b) of the Urban
Council Bill 1973 which was passed without any amendment.
10. A person shall be disqualified for being elected or being
nominated for election or being appointed or holding office as a
mem ber if he
(a) holds any office of emolument under the Crown (other
than as a member of an auxiliary force) or any office of
emolument in the gift or disposal of the Councilor any
committee thereof or having held such office has been
dismissed therefrom;
(b) has in any Commonwealth country been sentenced to
death or imprisonment (by whatever name called) for a
term exceeding twelve months and has not either suffered
the punishment to which he was sentenced or such other
punishment as may by competent authority have been
substituted therefor or received a free pardon;
(c) has been convicted of treason;
(d) is disqualified from being elected or being nominated for
election or being appointed or holding office as a member
under any enactment;
(e) is a member of any Parliament. assembly or council.
whether central or local, of a foreign country or a salaried
functionary of a foreign government;
(f) is an undischarged bankrupt or, within the previous five
years, has either obtained his discharge in bankruptcy or
has entered into a composition with his creditors, in either
case without paying his creditors in full.
38. In those days, there were only elections for the Urban
Council, which did not play the role of legislature. The disqualification
only applied to those convicted and sentenced to imprisonment for a term
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of more than 12 months. It covered conviction and sentence imposed by
courts in any Commonwealth country.
39. In the early 1980s, the Government consulted the public with
regard to district administration in Hong Kong. The idea of setting up
District Boards with elected membership was discussed. The Green
Paper on A pattern of District Administration in Hong Kong published
in J une 1980 gave a brief account of the development of local
administrative institutions up to that point in time. After consultation, in
J anuary 1981, a White Paper was published. The proposal for the setting
up of District Boards was explained as follows at para 14 of the White
Paper and the elections to the Boards at para 17,
14. One of the main proposals of the Green Paper was that
the inhabitants of each district should participate to a greater
degree than at present through representatives in administration
at the district level. With this in mind it was proposed that a
District Board should be formed in each district in order to
provide a means of obtaining better local advice and
participation. These Boards would be developed from the City
District Committees in the urban area and from the District
Advisory Boards in the New Territories. They would be
composed of unofficial members representing the people of the
district and the key official members of the District
Management Committee in that district. These proposals have
been generally well supported and the Government intends to
proceed with the establishment of District Boards in all districts.
Elections to District Boards
17. It was proposed in the Green Paper that an elected
element should be added to the District Boards as soon as this
was practicable. The proposal was for this to be done in the
urban area by providing seats on the District Boards for the
Urban Councillors elected in the constituency concerned in
order that they could participate in the work of the Board in
each district. For the New Territories it was proposed that the
residents of each district should elect a certain number of the
members of the relevant District Boards. These proposals have
been generally supported by the public, but a fair number of
comments have been made about the absence of, and a case has
been argued for, direct elections to District Boards in the urban
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area, on the grounds that the same opportunity for participation
in district administration should be available in all districts. On
this basis, it has been argued that even though there would be
elected Urban Councillors serving on District Boards in the
urban area, this was insufficient and the present proposals
would not ensure adequate representation; also the size of the
Board is such that these Councillors would have less influence
than the larger number of directly elected members will have in
the Boards in the New Territories. The Government accepts
these arguments and therefore intends to introduce direct
elections to seats on the District Boards representing
constituencies in each district; for the urban area, these would
be in addition to the seats provided for elected Urban
Councillors.
40. Paras 42, 44 and 48 of the White Paper dealt with
qualifications for candidates and the disqualifications of some persons to
stand for election,
Qualifications for Candidates
42. As stated, some part of public opinion suggests that
candidates should meet certain higher standards of quaIification
than those required for a voter. The best interests of the
community require that those elected should be the most
suitable candidates. The Government takes the view that this
should largely be achieved by the electorate in the deliberate
exercise of the vote. To prescribe too many qualifications, over
and above those required for a voter, might inhibit some good
candidates from coming forward. It might also restrict the
range of choice of appointed members who will continue to be
selected, individually, on their merits. Nevertheless, in view of
the strength of the opinion expressed by the public, the
Government considers it justified to introduce a longer period
of residence for candidates than that for the ordinary voter.
Certain categories of persons will be excluded from becoming
candidates.

44. Linking the qualifications for candidates to the
qualifications for registered voters would mean that a person
who is disqualified from becoming a registered voter
(paragraph 36 in Chapter 4) would not be eligible to stand for
election. It would also mean that a person of either sex and of
any nationality can stand for election. There will be no
educational or language requirement.

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Exclusion of Certain Persons from becoming a Candidate
48. As stated, a primary qualification for a candidate is that
he is a registered voter who has been ordinarily resident in
Hong Kong for 10 or more years. Accordingly, any candidate
must not fall within the categories set out in paragraph 36 in
Chapter 4 and in paragraph 41(b) above. However, as is
generally desired, the Government will, in addition, propose
that the following categories of persons should not be eligible
to stand as a candidate:
(a) persons who have in the past 10 years been convicted of
any offence in Hong Kong or elsewhere and have had
passed on them a sentence of imprisonment (whether
suspended or not) for a period not less than 3 months
without the option of a fine;
(b) persons who have been convicted in the past 10 years of
an offence under section 3 or 4 of the now repealed
Prevention of Corruption Ordinance, any offence under
Part II of the Prevention of Bribery Ordinance (Cap. 201),
or a corrupt or illegal practice within the meaning of the
Corrupt and Illegal Practices Ordinance (Cap. 288); and
(c) employees of the Crown or of the Urban Council, and
full-time judicial officers as defined in the Judicial
Service Commission Ordinance (Cap. 92).
Consideration has been given to excluding from candidacy a
practising professional person whose name has been struck off
the register or roll of his profession for professional misconduct.
Such exclusion is considered desirable but difficult to define.
Further consideration will be given to this issue in the drafting
of the necessary legislation.
41. Para 42 referred to the public opinion that candidates should
meet higher standards of qualification than those required for voters.
Para 48 referred back to para 36 of the White Paper regarding the
disqualification provision for voters (same as those provided under the
then Urban Council Ordinance). One category listed there was,
a person who has in any Commonwealth country been
sentenced to death or imprisonment for a term exceeding six
months and has not either suffered the punishment (or such
other punishment as may have been substituted therefor) or
received a free pardon.
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42. Thus, there were multiple disqualifications with regard to
convictions and those sentenced to a term of imprisonment and they
appeared in the Electoral Provisions Ordinance 1981 Section 19(b), (c),
(g) and (h),
19. A person shall be disqualified for being elected or being
nominated as a candidate or holding office as a member if he
(a) holds any public office (other than as a member of an
auxiliary force) or any office of emolument in the gift or
disposal of the Urban Council or any committee thereof
or having held such office has been dismissed therefrom;
(b) has in Hong Kong or any other territory or country been
sentenced to death or imprisonment (by whatever name
called) for a term exceeding 3 months and has not either
suffered the punishment to which he was sentenced or
such other punishment as may by competent authority
have been substituted therefor or received a free pardon;
(c) has been convicted of treason;
(d) is disqualified for being elected or being nominated as a
candidate or holding office as a member under any
enactment;
(e) is a member of any parliament, assembly or council,
whether central or local, of a foreign country or a salaried
functionary of a foreign government;
(f) is an undischarged bankrupt or, within the previous
5 years, has either obtained his discharge in bankruptcy or
has entered into a composition with his creditors, in either
case without paying his creditors in full;
(g) where the election is to be held or is held within 10 years
from the date of conviction, has been convicted
(i) of any offence in Hong Kong or any other territory
or country and sentenced to imprisonment, whether
suspended or not, for a term exceeding 3 months without
the option of a fine;
(ii) of a corrupt practice or illegal practice within the
meaning of the Corrupt and Illegal Practices Ordinance,
other than the illegal practice consisting of a
contravention of any of the provisions of section 19(2) of
that Ordinance, or of a corrupt or illegal practice within
the meaning of any other enactment for the time being in
force providing for the punishment of corrupt or illegal
practices;
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(iii) of an offence under section 3 or 4 of the repealed
Prevention of Corruption Ordinance;
(iv) of any offence under the Prevention of Bribery
Ordinance; or
(h) on the date of nomination or of the election is serving a
sentence of imprisonment.
43. Regarding the disqualification provision under Section 19(b),
the relevant period of prison sentence was exceeding 3 months, more
stringent than the equivalent disqualification for voters which was
exceeding 6 months under Section 11(1)(a). Though it was more
stringent, according to the White Paper, the correlation between the two
could be traced back to the public opinion gathered during the 1980
consultation that candidates should meet higher standards of qualification
than voters.
44. Disqualification was provided for those who were serving
prison sentence at the time of registration/nomination or at the time of
election for voters under Section 11(1)(e) and for candidates under
Section 19(h). There was no discussion about this provision in the White
Paper.
45. In 1985, election was first introduced for membership of
LegCo for functional constituencies. Disqualification provisions for
voters and candidates which are relevant for our purposes were to be
found in Section 15(2)(a), (d) and (e) and Section 21(1)(c), (g) and (h) of
the Legislative Council (Electoral Provisions) Ordinance 1985. I set
them out as follows,
15 (2) A person shall be disqualified from being registered
as an elector, or even if registered, from voting at an election,
if
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(a) he has in Hong Kong or any other place been sentenced to
death or imprisonment (by whatever name called) for a
term exceeding 6 months and has not either suffered the
punishment to which he was sentenced or such other
punishment as may by competent authority have been
substituted therefor or received a free pardon;

(d) without prejudice to paragraph (a), where the election is
to be held or is held within 7 years from the date of his
conviction he has been convicted
(i) of a corrupt practice or of an illegal practice within
the meaning of the Corrupt and Illegal Practices
Ordinance, other than the illegal practice consisting of a
contravention of any of the provisions of section 19(2) of
that Ordinance, or of a corrupt or illegal practice within
the meaning of any other enactment providing for the
punishment of corrupt or illegal practices;
(ii) of any offence under the Prevention of Bribery
Ordinance; or
(e) on the date he applies for registration or on the date of the
election, he is serving a sentence of imprisonment.

21. (1) A person shall be disqualified from being nominated
as a candidate in an election or holding office as an elected
Member if

(c) he has in Hong Kong or any other place been sentenced to
death or imprisonment (by whatever name called) for a
term exceeding 3 months and has not either suffered the
punishment to which he was sentenced or such other
punishment as may by competent authority have been
substituted therefor or received a free pardon;

(g) without prejudice to paragraph (c), where the election is
to be held or is held within 10 years from the date of his
conviction he has been convicted
(i) of any offence in Hong Kong or any other place in
respect of which he has been sentenced to imprisonment,
whether suspended or not, for a term exceeding 3 months
without the option of a fine;
(ii) of a corrupt practice or illegal practice within the
meaning of the Corrupt and Illegal Practices Ordinance,
other than the illegal practice consisting of a
contravention of any of the provisions of section 19(2) of
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that Ordinance, or of a corrupt or illegal practice within
the meaning of any other enactment providing for the
punishment of corrupt or illegal practices;
(iii) of any offence under the Prevention of Bribery
Ordinance; or
(h) on the date of his nomination or of the election he is
serving a sentence of imprisonment.
46. The disqualification provisions for candidates were the same
as those for the District Boards under the 1981 Ordinance. The same
provisions applied in 1991 when direct election to LegCo was extended
to geographical constituencies.
47. In J uly 1995, a LegCo member, the Hon Andrew Wong,
tabled a private members Bill to amend these disqualification provisions.
The proposals in the Bill included the narrowing of the scope of these
disqualification provisions to those committed of offences specified at
Section 21(1)(g)(ii) and (iii) only and removing the other restrictions
relating to conviction or serving prison sentences. The Bill was opposed
by the Government. The then Secretary for Constitutional Affairs
defended the existing provisions at the Second Reading of the Bill on
28 J uly 1995.
When introducing his Bill into this Council on 5 July,
Mr WONG argued that our electoral laws should not unduly
limit the franchise or the pool of candidates. This I entirely
agree. Indeed, our electoral system is built precisely on the
principle of broad based participation. This is what open and
fair elections are all about. But I hardly need to remind this
Council that all responsible administrations, and this includes
those in the more liberal jurisdictions, have legislated to
exclude various categories of persons from the electoral process.
And Hong Kong is of no exception. The disqualification
provisions are necessary to protect the integrity not only of the
elections, but also of the representative institutions to which the
candidates are to be returned.
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Most of the disqualification provisions which Mr WONG
tries to remove have been in the statute book for many years.
All were drawn up after extensive public discussion, including
a Green Paper consultation exercise in 1981. They are well
accepted by the public, and there are no known implementation
difficulties. It is, therefore, most astonishing that Mr WONG
should seek to introduce fundamental changes over-night.
Indeed, to do so would be wrong in public policy terms:
Firstly, it goes against our proven approach to
constitutional development: gradual, measured evolution rather
than radical, headlong, rush.
Secondly, it goes against the established practice in Hong
Kong that any proposal for major changes are preceded by, and
subject to, comprehensive public consultation. Are the public
ready for the radicalism embodied in the Bill? Has Mr WONG
carried out any systematic public sounding? I certainly am not
aware of any. If he has, he should share his methodology and
results with the Council.

All the above does not mean that the existing legislative
provisions are sacrosanct. But the Administration does firmly
believe that any fundamental change to the electoral system
should be made with extreme care, after detailed study, and
thorough consultation. The appropriate time for a
comprehensive review, if the public consider one necessary,
should be after the September Legislative Council elections.
48. The motion was negatived with 22 members voted in favour
and 32 members voted against it.
49. The Affidavit of the Secretary did not refer to any public
consultation or review after the LegCo election in September 1995. If
there had been any public consultation or review between September
1995 and the resumption of sovereignty, I would expect the Secretary to
have produced the same in accordance with the duty of candour
expounded by Ma CJ HC (as the Chief J ustice then was) in Chu Woan
Chyi v Director of Immigration [2009] 6 HKC 77 at paras 11 to 14, see
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also Inglory Ltd v The Director of Food and Environmental Hygiene
HCAL 87 of 2011, 24 May 2012 para 52.
50. I must therefore proceed on the basis that there was neither
public consultation nor review of the position during that period. The
Secretary has produced a memorandum of J uly 1997 prepared by the
Constitutional Affairs Bureau and the debate in the Provisional LegCo
regarding the Legislative Council Ordinance 1997. I shall come to these
materials later.
51. On 23 February 1997, the Standing Committee of the Eighth
National Peoples Congress adopted the Decision on Treatment of the
Law previously in force in Hong Kong in accordance with Article 160 of
the Basic Law of Hong Kong. Paragraph 2 of the Decision reads,
Such of the ordinances and subordinate legislation previously
in force in Hong Kong as set out in Annex 1 to this Decision
are in contravention of the Basic Law and are not adopted as
the laws of the Hong Kong Special Administrative Region.
52. The Electoral Provisions Ordinance and the Legislative
Council (Electoral Provisions) Ordinance were included in Annex 1.
They were therefore not adopted and ceased to be law after the
resumption of sovereignty and the establishment of the Hong Kong
Special Administrative Region with the coming into force of the Basic
Law.
53. It should be noted that there was no suggestion from
Mr Thomas that the disqualification provisions in the Legislative Council
(Electoral Provisions) Ordinance were in any way in contravention of the
Basic Law.
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54. It was therefore necessary for the local legislature to enact
new legislation to provide for the election for LegCo. That legislation
must comply with the Basic Law, including Articles 26, 39 and 68 of the
Basic Law.
55. The task fell upon the Provisional Legislative Council. In
August 1997, the Government introduced the Legislative Council Bill
1997. The Impugned Provisions were introduced in that Bill.
56. Regarding the change from the pre-existing 3-month
threshold under the disqualification provision in the Legislative Council
(Electoral Provisions) Ordinance for those not yet served their prison
sentences to the absolute ban under the current Section 39(1)(b)(i), the
only explanation is to be found in the memorandum prepared by the then
Constitutional Affairs Bureau in J uly 1997 on Review of the Electoral
Provisions Ordinance.
57. In that memorandum, at p 6, the following was said with
regard to the disqualification criterion under the old Section 19(1)(b) of
the Electoral Provisions Ordinance,
Under s 19(1)(b) of EPO, escaped convicts who have been
sentenced to death or more than 3-month imprisonment and
have not served the sentence or any substituted sentence or
received a free pardon shall be disqualified. The proposal now
is to tighten up the restriction by removing the 3-month
threshold for disqualification. This is because as a matter of
principle, we should not allow any escaped convict to hold a
LegCo office, no matter how light or serious his offence (and
punishment) is.
58. In the discussion with regard to disqualification provision for
candidates, this observation was adopted, see p 10 of the memorandum at
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para 12(e). The same applies to the observation with regard to the
disqualification provision for voters, see p 13 para 16(a).
59. With respect, as the facts of the present cases demonstrate,
these comments distorted the effect of the old Section 19(1)(b) and the
current Section 39(1)(b)(i). The sub-section catches not only escaped
convicts, it also catches people like Mr Leung and Mr Wong who were
given bail pending their appeal against criminal convictions and
sentences. It is not correct to describe them as escaped convicts or
fugitives. Though he has put it rather obliquely, this much is
acknowledged by the Secretary at para 32 of his Affidavit.
60. To that extent, the memorandum was regrettably misleading.
The Secretary did not state in his Affidavit whether the memorandum had
been circulated to members of the Provisional LegCo. But this is the
evidence he produced as being the relevant material leading to the
enactment of the Legislative Council Ordinance 1997. Further, in a
House Committee Paper (PLC Paper No CB(2) 329, dealing with
proposals to amend the disqualification provisions in the Bill regarding
candidates as well as voters, the Administration opposed the proposals on
the ground that the provisions in the Bill are already less stringent than
those contained in the previous electoral legislation. Such stance could
not be sustained if members of the Provisional LegCo appreciated the
true impact of Section 39(1)(b)(i).
61. The debate at the Provisional LegCo showed that even the
member who proposed the amendments to the Bill was misled as to the
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effect of this particular provision because he also described the subjects
of it as fugitives.
62. In so saying, I should not be taken as suggesting that the
Administration had deliberately misled members of the Provisional
LegCo. I do not say so. There is no evidence to suggest that to be the
case. Actually, reading the memorandum as a whole, the Administration
was trying to liberalize the restrictions in other respects, eg shortening the
disqualifying period under Section 39(1)(e) to 5 years as compared with
the previous period of 10 years under Section 21(1)(g) of the Legislative
Council (Electoral Provisions) Ordinance on the ground proportionality,
see p 7 under para 8(q), and p 11 para 12(k) and similar shortening from
10 years to 3 years with respect to disqualification for voters, see p 13
para 16(d).
63. The Administration set out a principle relevant for our
purposes at para 11 of the memorandum,
As a matter of principle, the disqualification for
candidature/election should not be more restrictive than the
disqualification from holding office.
This would have a bearing in the consideration of the implications
flowing from Article 79(6) of the Basic Law.
64. Amendments proposed the Hon Mr Andrew Wong
(including an amendment restoring the pre-existing position of confining
disqualification under Section 39(1)(b) to sentences for a term exceeding
3 months) was voted down and the Bill in the form as proposed by the
Administration was passed.
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65. In view of the evidence, I must reject Mr Thomas
suggestion that the change in 1997 was due to the provision in
Article 79(6) of the Basic Law. Counsel proceeded on the basis that the
restriction for candidate should be more stringent than that for the
disqualification of member of the LegCo. The evidence shows that the
principle adopted was the other way round.
The nature of the right to stand for election
66. Like the right to vote, the right to stand for election is a
fundamental right. This is expressly recognized under Article 26 of the
Basic Law. These rights are crucial to establishing and maintaining the
foundations of an effective and meaningful democracy, see Zdanoka para
103. But they are not absolute. This is reflected in the European
jurisprudence on implied limitations and the cases on reasonable
restrictions under the ICCPR.
67. The European Court of Human Rights has repeatedly
emphasized on the latitude given to each State in setting the rules
governing eligibility to stand for election and the diversity of possible
approaches within the European Union. In respect of such right, it was
stressed at paras 103 and 106 in the judgment of Zdanoka,
There are numerous ways of organizing and running electoral
systems and a wealth of differences, inter alia, in historical
development, cultural diversity and political thought within
Europe, which it is for each Contracting State to mould into its
own democratic vision.
for the purposes of applying Article 3, any electoral
legislation must be assessed in the light of the political
evolution of the country concerned
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To the same effect is the fourth proposition of Lord Collins in Barclay at
para 56 of that judgment quoted above.
68. In the present context, the constitutionality of
Section 39(1)(b) must be assessed against the legislative history discussed
at the preceding section and the overall political development in Hong
Kong. Overseas decisions on similar restriction, gearing towards political
and historical developments in those countries, would not be of much
assistance in deciding the proper balance to be struck in Hong Kong.
69. But overseas decisions can be useful in shedding light on the
nature of restrictions which may be imposed. In that respect, Nowaks
CCPR Commentary para 27 at p 578-9 provide a good summary,
With respect to the right to be elected, farther-reaching
restrictions are sometimes permissible. For instance, the
minimum age for holding office normally lies somewhat higher
than that for voting As a consequence of the higher
responsibility associated with election to a public office, certain
grounds for exclusion going beyond those on the right to vote
may also be considered reasonable in this regard. For instance,
one might imagine specific qualification requirements or the
exclusion of extremist parties and certain groups of persons,
such as priests, civil servants and military persons. In addition,
the observance of certain formal requirements for submitting a
nomination for election, such as payment of a fee or deposit or
presentation of a certain number of declarations of support,
could be a permissible restriction, so long as it is not excessive
or discriminatory. However, these restrictions must be
adequately justified.
70. Zdanoka was a case concerning the disqualification of a
Latvian national from standing for election in the Latvian parliament as
persons who actively participated in certain political organizations which,
according to the judgment of the Latvian Constitutional Court, attempted
to re-establish the former regime through active participation and the
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overthrow of the existing State regime. The aim of the restrictions is to
protect he democratic State order, national security and territorial
integrity of Latvia. The ECHR found, in the circumstances of Latvia,
the restriction to be in accordance with Article 3.
71. In Touroon v Uruguay UN Doc CCPR/C/12/D/32/1978;
IHRL 2783 (UNHRC 1981), the Human Rights Committee of the United
Nation recognized that legislations in many countries deprived criminal
offenders political rights, including the rights to stand for election. On
the facts of the case, the Committee was of the opinion that the
deprivation of political rights for 15 years were not justified.
72. In General Comment 25 adopted by the UN Human Rights
Committee on 12 J uly 1996, the following comments were made
regarding reasonable restrictions that may be imposed on the right to
stand for election. At para15,
The effective implementation of the right and the opportunity
to stand for elective office ensures that persons entitled to vote
have a free choice of candidates. Any restrictions on the right
to stand for election, such as minimum age, must be justifiable
on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded
by unreasonable or discriminatory requirements such as
education, residence or descent, or by reason of political
affiliation. No person should suffer discrimination or
disadvantage of any kind because of that persons candidacy.
States parties should indicate and explain the legislative
provisions which exclude any group or category of persons
from elective office.
Para 16 dealt with nomination procedure and measures to avoid conflicts
between elective offices and holders of other specific positions (judges,
high-ranking military officers and public servants).
Para 17 continues,
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The right of persons to stand for election should not be limited
unreasonably by requiring candidates to be members of parties
or of specific parties. If a candidate is required to have a
minimum number of supporters for nomination this
requirement should be reasonable and not act as a barrier to
candidacy. political opinion may not be used as a ground to
deprive any person of the right to stand for election.
73. Drawing from these authorities, I can make the following
observations which are relevant for present purposes,
(a) The permissible restrictions can go beyond mere procedural
regulations of the nomination process and disqualification
criteria based on certain attributes of a candidate may be
permissible;
(b) The restrictions have to be justified. They must be
reasonable, not excessive and non-discriminatory in addition
to being prescribed by law;
(c) J ustification has to be considered against the historical and
political developments of the state or region in question.
Evidence as to objectives of the Impugned Provisions
74. In his Affidavit, the Secretary recognized that the
contemporaneous evidence of the legislative process pertaining to the
passing of the Legislative Council Ordinance by the Provisional LegCo is
limited. The Secretary then went on to set out what the current
Administration perceives as the important social and political objectives
served by the Impugned Provisions with regard to persons in similar
position to the Applicants, viz convicts sentenced to imprisonment but
released on bail pending appeal.
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75. Four objectives were identified by the Secretary,
(a) Maintaining public confidence in the LegCo and ensuring its
proper operation;
(b) Maintaining public confidence in the electoral process;
(c) Ensuring fitness to serve as a member of the LegCo;
(d) Respect for the law and enhancing civic responsibility.
76. These objectives were not mentioned in the
contemporaneous evidence. In Lam Wo Lun v Director of Social Welfare
HCAL 133 of 2010, 14 May 2012, this Court considered how a court
should approach justifications advanced in judicial review proceedings
which had not been canvassed in the contemporaneous documents. At
para 49, after considering the relevant authorities, the following view was
expressed,
In principle, the submission of Lord Pannick must be correct.
When the court considers whether a policy is justified in the
wake of constitutional challenges, the issue is whether the
relevant constitutional rights have been violated. A policy may
be justified on its merits even though the way in which the
policy was explained during its introduction did not quite fit
into a structured analysis in terms of the justification test. At
the same time, the court will subject the reasons put forward as
justification to scrutiny as in the case of George Yao. If the
evidence of a witness is at odds with the justification previously
put forward in contemporaneous document, the court will
weigh the same with caution. But the court will not be pedantic
in the reading of the evidence and contemporaneous documents
should not be read as if they were statutes.
77. On the facts of that case, this Court concluded that the
reason advanced in the affidavit of the responsible officer had already
been canvassed in the contemporaneous documents. However, the
position is different in the present case. Not only were the stated
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objectives advanced by the Secretary not being mentioned in the
contemporaneous documents in 1997, a very different justification had
been put forward in 1997 in respect of the reduction of the threshold
period under Section 39(1)(b), viz the lack of justification for giving any
escaped convict the benefit of any threshold.
78. In my judgment, this must have a bearing on the weight to
be attached to the objectives now put forward in the Affidavit and the
standard of scrutiny to be applied by the court. Mr Thomas submitted
that the court should accord a high margin of appreciation to the
judgment of the LegCo. Several observations can be made in response to
this submission in the present context. First, as observed by Sir Anthony
Mason NPJ in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at
para 45,
The weight to be accorded to the legislative judgment by
the court will vary from case to case depending upon the nature
of the problem, whether the executive and the legislature are
better equipped than the courts to understand its ramification
and the means of dealing with it. It is for the Court to
exercise its constitutional responsibility by determining the
issue, after giving appropriate respect to the legislative
judgment. At the end of the day, to repeat the words of Lord
Nicholls of Birkenhead in R v Johnstone [2003] 1 WLR 1736 at
p.1750 F:
The court will reach a different conclusion from the
legislature only when it is apparent the legislature has
attached insufficient importance to the fundamental right
of an individual
79. These were said in the context of a challenge to a provision
relating to onus of proof in a criminal case where the court, as observed
by Sir Anthony Mason NPJ , was able to form its own judgment without
laboring under a disadvantage vis--vis the legislature. However, I see no
reason why the same approach should not be applied in the present
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context. What we have here is, regrettably, as shown by the evidence, a
situation where the Provisional LegCo was unwittingly misled by the
justification put forward by the Administration in voting in favour of the
change of threshold period for disqualification under Section 39(1)(b). In
such circumstances, it is plain that the Provisional LegCo failed to give
any consideration to the right to stand for election of a person on bail
pending appeal and whether, in respect of such person, given it had been
acknowledged by the Administration in 1995 that the then
disqualification regime had been working without difficulties
1
, there was
good justification for the removal of the threshold period altogether under
that section.
80. Second, in the speech of the then Secretary for
Constitutional Affairs at the debate on 5 J uly 1995, the disqualification
provisions were justified as being necessary to protect the integrity not
only of the elections, but also of the representative institutions to which
the candidates are to be returned. Broadly speaking, these justifications
coincide with the first two objectives now put forward by the Secretary in
his Affidavit. I shall proceed on the basis that these objectives had been
considered by the legislature.
81. Third, as regards the other two objectives, there is no
evidence to indicate that they have been considered as separate or distinct
objectives by the legislature. In his Affidavit, the Secretary only put
forward these objectives as the current views of the Administration.
Though these objectives can still be considered, they do not carry the
same weight as the considered view of the legislature.

1
See para 47 above.
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Section 39(1)(b)
82. In my judgment, the assessment of the constitutionality of
Section 39(1)(b) should be considered separately from the assessment
regarding Section 39(1)(d). I shall start with the former. I believe
Mr Dykes and Leung accepted (and I agree with them) that
disqualification for convicts subject to a lengthy prison sentence can be
justified. The issue is whether Section 39(1)(b) has crossed the line of
reasonable restriction.
83. In the application of the test set out at para 33 above,
Section 39(1)(b) has to be considered in the light of Section 39 as a whole.
Section 39(1)(e) (the constitutionality of which is not attacked) already
contains disqualification for those who have been convicted within the
past 5 years for specific types of offences which the legislature
considered to have special significance in relation to the fitness of a
candidate or for an offence for which sentences of imprisonment
exceeding 3 months (including suspended sentence) were imposed.
84. Thus, for convicts subject to prison sentence exceeding
3 months (including suspended sentence) or convicts of the specified
offences, they are already disqualified Section 39(1)(e)(i) even if they are
given bail pending appeal.
85. I accept the maintenance of public confidence in LegCo and
the election process and the ensuring of proper operation of LegCo as
legitimate aims. In the discussion relating to these two objectives in the
Affidavit of the Secretary, he referred to the uncertainties that might be
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engendered and the confusion that might be caused to the electorate if
convicts on bail pending appeal were allowed to run as candidates.
86. With respect, given that we are only talking about those
subject to a sentence of 3 months or less, not much uncertainty can be
caused by allowing such candidates to run. As submitted by Mr Dykes
SC, in the present day Hong Kong situation it is unlikely that a conviction
and liability to serve prison sentence of a candidate of LegCo election is
not revealed to the voters even if he or she is on bail pending appeal.
There would not be any confusion. I have no doubt that the voters in
Hong Kong are intelligent enough to take into account the potential
contingency of imprisonment of such candidate in deciding whether to
cast their votes in favour of him or her.
87. Whilst there might be uncertainty in terms of the outcome of
the appeal and thus the need to serve the prison sentence, at the highest it
would only be 3 months out of a total four-year term
2
of office of the
candidate (if elected). As observed in the course of hearing, there is no
certainty in life and legislators, like all of us, are subject to various
contingencies in life like illness or other mishaps which might prevent a
legislator from performing the duties in the LegCo during part of his or
her term of office.
88. Under Article 79 of the Basic Law, the President of the
LegCo shall declare a member no longer qualified for the office under
certain circumstances. This article shed light on the criteria to be applied
in deciding whether public interest demands a member to be disqualified

2
See Article 69 of the Basic Law
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from office. Some of those criteria relates to the ability of the member in
performing the duties as members of the LegCo. I have referred to
Article 79(6) which deals with member convicted and sentenced to
imprisonment for one month or more. There are other provisions.
Article 79(2) deals with a member who, without valid reason, is absent
from meetings for 3 consecutive months without the consent of the
President. In other words, for those who absent from meeting for less
than 3 consecutive months, the Basic Law does not deem it necessary to
disqualify such a member.
89. There is also a provision under Article 79(1) in respect of
member who loses the ability to discharge his or her duties as a result of
serious illness or other reasons. I have not heard submissions on the
proper interpretation of Article 79(1) and I would not express any
concluded view on it. However, since there are specific provisions in
Article 79(2) dealing with absence from meetings and in Article 79(6)
dealing with those subject to prison sentences, there is a strong argument
that the loss of ability in Article 79(1) refers to the loss of the innate
ability of a member to serve as opposed to external contingencies
preventing a member from performing the duties of a LegCo member.
90. These are the criteria for members. As observed in the 1997
memorandum, as a matter of principle, and I would add, in terms of
proportionality, the criteria for candidates should be less stringent. After
all, a candidate may not be elected and the voters can make their own
assessments as to the suitability of a candidate to serve as legislator in
casting their votes.
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91. Further, as shown by the legislative history, between 1985
and 1997, the relevant disqualification provision is subject to the three-
month threshold period. The then Secretary for Constitutional Affairs
informed LegCo in 1995 that no difficulty had been encountered.
92. In my view, the above analysis rebutted the Secretarys
reliance in his Affidavit on the need for reassignment of duties and the
unfairness of allowing a candidate to stand whilst immediate
imprisonment during his term of office is a real possibility.
93. The Secretary also referred to the wastage of expenses and
resources devoted to election and by-election upon the imprisonment of a
candidate or a member. With respect, in view of the above analysis as to
Article 79, it is by no means a foregone conclusion that a by-election has
to be held if a member has to serve a short prison sentence for less than
three months. Actually, the power under Article 79(6) would not be
triggered by the imposition of a prison sentence of less than one month on
a member.
94. As for the case of a candidate on bail during the nomination
date and subsequently sent to jail on the election date, whilst this might
lead to some need to clarify the validity of the candidacy, given the
efficiency of the public media in Hong Kong I do not believe it would
cause insurmountable difficulties to the continuation of the election. In
any event, it would be a rare occurrence.
95. On the whole, I do not see the rational connection between
the application of Section 39(1)(b) to persons on bail pending appeal and
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the maintenance of public confidence in the LegCo and the electoral
process. I have not overlooked that Section 39(1)(b) also applies to
escaped convicts or fugitives. However, I do not think the measure can
be justified as the drawing of a bright line which catch some hard cases
(see R (Animal Defenders International) v Secretary of State for Culture,
Media and Sport [2008] 1 AC 1312). With respect, it is actually difficult
to envisage an escaped convict standing for election, at least not one who
is being convicted by a court in Hong Kong or a jurisdiction with which
we have extradition arrangement. Section 39(1)(b) is more likely to catch
an intended candidate on bail than an escaped convict. As it happened,
three persons (including the Applicants) who fall into the former category
were recently caught by the dilemma occasioned by Section 39(1)(b).
I do not think their predicaments can simply be dismissed as hard cases.
96. It also follows from the above analysis that I do not regard
Section 39(1)(b) as proportionate measure to pursue the aims of
preserving the public confidence in the LegCo or the electoral process
and ensuring the proper operation of LegCo.
97. As regards the two other objectives mentioned by the
Secretary: fitness of a candidate to serve as a member of LegCo and
respect for the law, they were not canvassed in 1995 or 1997 when the
LegCo and the Provisional LegCo considered the matter. In regard to the
former, back in 1981 at para 42 of the White Paper mentioned above, the
then Administration took the view that suitability of a candidate should
largely be achieved by the electorate in the deliberate exercise of the
vote and too much prescription on eligibility would restrict the range of
choice of good candidates from coming forward. Thus, the
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Administration had recognized at that stage that suitability of a candidate
should primarily be left to the voters.
98. Historically, the restriction in Section 39(1)(b) was linked to
the less stringent but similar disqualification provision for voters. With
the benefit of public consultation in 1980, the balance was struck in 1981
at disqualification as candidate of those imposed with sentences
exceeding 3 months. That balance seemed to work well up to 1997. In
1997, based on the misguided reason set out in the memorandum
produced by the Administration, it became a disqualification for everyone
subject to an unserved prison sentence. That change took place with
respect to both candidates and voters. After Chan Kin Sum, the identical
restriction for voters under Section 31(1)(a) has been removed from the
statute book in 2009.
99. Given that an invalid reason had led to the change in 1997,
I cannot attach weight to judgment of the legislature with regard to
Section 39(1)(b) in passing the Legislative Council Ordinance 1997. In
the absence of any suggestion that the previous balance struck in 1981
(subsequently introduced into LegCo election since 1985) did not
adequately serve the interest of Hong Kong, with the progressive
developments of political maturity in Hong Kong since 1985, I do not see
how the change in 1997 can be said to be a proportionate measure to
address the aim of having suitable candidates. This is particularly so
when one consider this restriction in light of the disqualification
provisions for members in Article 79(6) of the Basic Law.
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100. I do not agree with the Secretary that the last objective,
respect for the law and enhancement of civic responsibility, can on its
own be regarded as a legitimate aim for the restriction on the right to
stand for election. Insofar as a criminal conviction with prison sentence
may reflect upon the suitability of a candidate (whether in terms of his
respect for the law or his sense of civic responsibility), this has been
considered in the preceding discussion. The Secretarys explanation of
this objective was set out at para 53 of his Affidavit,
53. The Subject Provisions also serve to enhance civic
responsibility. Persons committed to serving the public will be
informed by the Subject Provisions as to the possibility of
being disqualified from candidature in elections for the LegCo
if they flout the law. They will be discouraged from doing so.
The Subject Provisions also serve to enhance a high level of
civic responsibility and respect for the rule of law by those who
wish to stand for election for public office. They deter such
persons from breaking the law by warning them that the
consequences of criminal wrongdoing may result in their
disqualification from candidature in elections for the LegCo
and such persons will be discouraged from breaking the law.
They also reinforce respect by intending candidates for the laws
passed by the very body on which they wish to serve on.
101. In substance the argument is that Section 39(1)(b) can serve
as a special deterrent to those aspired in running for LegCo office in
addition to the usual sanction under our criminal law. In my judgment,
with respect, this conflated the proper function of electoral restriction
under our election law with the function of our criminal law. LegCo
member, like other citizens in Hong Kong, are subject to the same set of
laws and the same treatment under our criminal justice system. Of course,
LegCo member would also be politically accountable to the voters. But
political accountability should not be confused with additional restriction
in the right to stand for election.
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102. Further, Section 39(1)(b) extends to prison sentence imposed
in places other than Hong Kong for offences not known here and it can
even be applied in respect of a sentence imposed by a jurisdiction which
has no extradition arrangement with Hong Kong. That has little bearing
on the respect for our law and civic responsibility as Hong Kong citizen.
103. Though Mr Thomas laid much emphasis on the current stage
of political development in Hong Kong with reference to Article 68 of the
Basic Law and the need to have suitable candidates in the LegCo election,
I do not think these can justify the proportionality and reasonableness of
Section 39(1)(b) in light of what I said above.
104. For these reasons, I hold that Section 39(1)(b) is inconsistent
with Article 26 and 39 of the Basic Law and Article 21 of the BoR.
I granted a declaration accordingly.
105. In such circumstances, it is not necessary to consider the
arguments based on Article 25 of the Basic Law (on equality) and Article
28 of the Basic Law and Article 5 of the BoR (on the right to bail
deriving from liberty of person). I would simply record that regarding
Article 25, Mr Thomas argued that the difference in treatment is not
discriminatory because it is not a differentiation based on any of the
grounds in Article 1(1) of BoR. Counsel relied on R (Clift) v Home
Secretary [2007] 1 AC 484 to contend that the attribute of convicts and
prisoners do not come within the meaning of other status under
Article 1(1). A Cheung J held the contrary position was highly arguable
in Chan Kin Sum (see paras 75 and 76). It is also a moot point whether
the right to equal treatment under Article 25 is circumscribed by
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Article 1(1). In the social welfare cases (Kong Yun Ming and Fok Chun
Wa) the courts did not construe Article 25 with reference to Article 1.
I have not heard submissions in that regard and I shall leave the point
open.
106. As regards Article 28 of the Basic Law and Article 5 of the
BoR, I do not see how the right to liberty can assist the Applicants in the
challenge of Section 39(1)(b). They have been convicted by a court of
law and sentenced to imprisonment. Whilst they do have the right to
appeal, they do not have an absolute right to liberty pending appeal.
They can apply for bail but they could only enjoy their liberty if bail
pending appeal is granted.
107. It is up to them to decide whether they would apply for bail
and if bail is granted, it is up to them to decide whether, in view of their
aspiration to run for election and the restrictions under Section 39, to
apply to have the bail revoked and serve the sentences prior to the
expiration of the nomination period. If they decide to serve the prison
sentences, they are not deprived of their liberty by Section 39. Rather,
they are deprived of their liberty by the prison sentences imposed by the
courts as punishments of the offences committed by them. That cannot
be an infringement of Article 5 and Article 28. After they have served
their sentences, they would not be required to serve again even if they fail
in their appeals.
108. It is argued that Section 39(1)(b) leaves them with no choice
but to serve their sentences as opposed to enjoying their right of liberty
pending appeal. I do not agree. They can still choose to enjoy their
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liberty but they may not run as a candidate if Section 39(1)(b) is a
reasonable restriction (in the sense as discussed above) of the right to
stand for election. It is correct that they cannot have both. But it does not
follow that if they choose to serve their sentences, their right to liberty is
infringed by Section 39(1)(b).
Section 39(1)(d)
109. This section disqualifies those who are serving prison
sentences either at the time of nomination or at the time of election.
Again, by reason of Section 39(1)(e), I can confine to those serving a
sentence of less than 3 months. The complaint is that this section may
catch those serving a short prison sentence in between the
commencement of nomination period and the date of election and, if
allowed to stand as candidate, would be released by the time the new term
of office of LegCo membership commences.
110. I can see the force of this challenge. However, there is one
important aspect which in my view should be considered but the parties
have not addressed upon. Unlike the right to vote, the right to stand for
election, for most people, cannot be effectively exercised unless the
candidate can have meaningful access to run an election campaign. Thus,
it is at least arguable that the right to stand for election carries with it the
right to a fair opportunity to conduct a campaign. Nowaks CCPR
Commentary at p 584 para 36 alluded to the right of campaigning parties
and candidates to unimpaired campaign advertising. See also Mathieu-
Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 at para 54.
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111. Whilst each candidate would have different limitations in
terms of resources and manpower to conduct his or her own campaign, a
candidate serving a prison sentence would be subject to a greater
disadvantage. Does it mean that such a candidate should be allowed
timeout from imprisonment to conduct campaign? Has this question been
considered in other jurisdictions? How should this be balanced against
the public interest in the effectiveness of our criminal justice system in
terms of punishment by prison sentence? How about security issues if
such a candidate is allowed to have timeout? All these questions have to
be addressed in the assessment of the overall reasonableness of
Section 39(1)(d).
112. Since Leung and Wong have been given bail and are not
subject to the restriction of Section 39(1)(d) and they wished this court to
give a decision as soon as practicable, I do not think I should delay the
matter by inviting further submissions from counsel on Section 39(1)(d).
Following the approach of Hartmann J (as he then was) in Leung Kwok
Hung v The President of the Legislative Council [2007] 1 HKLRD 387
paras 43 and 44, I would just leave the constitutionality of
Section 39(1)(d) to be considered in the future. Hopefully, the matter will
receive the attention of the Administration and LegCo in a review of the
disqualification provisions as a whole and it would not be necessary to
litigate over this issue in court again.
Disposal
113. I have therefore granted the declaration regarding
Section 39(1)(b) on 14 J une.
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114. I shall also make a costs order nisi that the Respondent shall
pay the costs of the Applicants, such costs are to be taxed if not agreed.



(M H Lam)
J udge of the Court of First Instance
High Court


Mr Philip Dykes, SC, Mr Hectar Pun and Miss Annie Leung, instructed
by J CC Cheung & Co, assigned by the Director of Legal Aid, for the
Applicant in HCAL 51/2012

The Applicant, in person, present in HCAL 54/2012

Mr Michael Thomas, QC and Mr S K Lui, Mike, of the Department of
J ustice, for the Respondent in both cases