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A A

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

H WONG TAI HOI Applicant H

and
I I

AU NOK HIN 1st Putative Respondent


J J

ANNE TENG 2nd Putative Respondent


K (Returning Officer for the K
Hong Kong Island Geographical Constituency)
L L
and
M M
SECRETARY FOR JUSTICE Putative Interested Party
____________
N N

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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1. The issue which arises for determination is whether the


B B
Applicant should be permitted to challenge the decision of the Returning
C C
Officer (the 2nd Putative Respondent) that Mr Au Nok Hin (the 1st Putative

D
Respondent) was validly nominated as a candidate at the 2018 Legislative D
Council By-election for the Hong Kong Island Geographical Constituency
E E
(“the By-election”) by way of judicial review. For reasons which I shall
explain below, the answer is “no”. F

G BASIC FACTS G

H 2. The Applicant was a registered elector, and Mr Au a H

candidate, at the By-election.


I I

J 3. On 9 February 2018, the Returning Officer published in the J

Gazette a notice that the nomination of Mr Au as a candidate at the


K K
By-election was valid (“the Decision”).
L L

4. The By-election took place on 11 March 2018, and Mr Au


M M
was elected as a member of the Legislative Council for the Hong Kong
N Island Geographical Constituency. N

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

Q Q
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

a person to be nominated as a candidate at a Legislative Council election


S S
as well as the requirements of a valid nomination. In what follows, unless
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otherwise expressly indicated, references to Sections shall be to the


B B
provisions of the Legislative Council Ordinance, Cap 542.
C C

7. Section 37 sets out the basic “eligibility” criteria for a person


D D
to be nominated as a candidate at an election.
E E

8. Section 39 sets out the circumstances in which a person is


F
“disqualified” from being nominated as a candidate and from being elected
G as a member of the Legislative Council. Relevant for the present purpose G

is Section 39(1)(f), which states as follows:-


H H

“A person is disqualified from being nominated as a candidate at


I an election, and from being elected as a Member of the I
Legislative Council, if the person –
J J
(f) is –

K (i) ineligible to be a candidate, or to be elected as a Member, K


at the election, or

L (ii) disqualified from being a candidate, or from being L


elected as a Member, at the election,
M because of the operation of this or any other law”. M

N 9. Section 40 set outs the requirements for a valid “nomination” N

of a person as a candidate for an election for a constituency. In particular:-


O O

P (1) Section 40(1)(b)(i) provides that a person is not validly P

nominated as a candidate for an election for a constituency


Q Q
unless the nomination form includes or is accompanied by “a
R declaration to the effect that the person will uphold the Basic R

Law and pledge allegiance to the Hong Kong Special


S S
Administrative Region”.
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(2) Section 40(1)(b)(iii)(E) provides that a person is not validly


B B
nominated as a candidate for an election for a constituency
C C
unless the nomination form includes or is accompanied by “a

D
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
E E
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
H H
the purpose of the present discussion. It states as follows:-
I I
“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

O November 2016, the Standing Committee of the National People’s O


Congress of the People’s Republic of China issued an interpretation of
P P
BL104, paragraph 1 of which states as follows:-

Q Q
“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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standing for election in respect of or taking up the public office


B specified in the Article.” [emphasis added] B

C C
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
E E
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
G G
only be satisfied if the nominee makes the declaration “genuinely and

H truthfully, in that at the time of making the Declaration, the nominee H


objectively has a genuine and truthful intention to uphold the Basic Law
I I
and pledge allegiance to the HKSAR”.

J J
13. In the Form 86, the Applicant makes the following allegations
K K
against Mr Au:-

L (1) On 2 November 2016, Mr Au took part in a rally organized by L

the Civil Human Rights Front (民間人權陣線) and burned a


M M
copy of the Basic Law in front of the Liaison Office of the
N Central People’s Government in the HKSAR. N

O (2) On 7 March 2018, Mr Au participated in the Legco O

By-election Forum (“the Forum”) organized by Radio


P P
Television Hong Kong, in the course of which (i) he was
Q asked whether he had burned the Basic Law (你有沒有燒過 Q

基本法) and he confirmed that he had, and (ii) he was asked


R R
whether he would burn the Basic Law again (依家你仲會唔
S 會燒基本法), and he replied that he would not mind doing it S

again if he should encounter a protest in which it was


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B
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
E E
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
G G
isolation. This is not the appropriate occasion to examine the merits of

H
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
I I
factual allegations can be proved at the substantive hearing of the

J application if leave to apply for judicial review is granted. J

K K
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,
M M
and that his declaration included in or accompanying his nomination form

N
for the By-election was false and/or not genuinely or truthfully made (see N
paragraphs 5 and 8 of the Form 86).
O O

15. Two grounds of judicial review of the Decision are advanced


P P
by the Applicant in the Form 86, namely:-
Q Q
Ground 1: the Returning Officer has no power to make the
R Decision and to decide that the said nomination of R

Mr Au is valid for the reason that Mr Au does not fulfil


S S
the requirement of Section 40(1)(b)(i) and BL 104 (see
T paragraph 28 of the Form 86). T

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Ground 2: the Returning Officer has no power to make the


B B
Decision and decide that the said nomination is valid
C C
for the reason that Mr Au does not fulfil the

D
requirement of Section 40(1)(B)(iii)(E) (see D
paragraph 34 of the Form 86).
E E

16. In relation to Ground 1, Mr Tim Wong, on behalf of the


F
Applicant, argues that Mr Au’s act of burning a copy of the Basic Law is
G “an important symbolic act of defiance and display of contempt”, and his G

statement at the Forum reflects “a continuing objective intention to


H H
disregard rather than uphold the Basic Law”. Accordingly, says Mr Wong,
I it is impossible for Mr Au to “turn around and assert that he will I

genuinely and truly commit to upholding the Basic Law” (see paragraph 51
J J
of Mr Wong’s Skeleton Submissions dated 26 March 2018).
K K

17. In relation to Ground 2, Mr Wong argues that Mr Au’s stance


L L
of willingness to burn a copy of the Basic Law again is “incompatible with
M the Purported Promissory Oath not to do anything that results in his being M

disqualified from being elected as a Member at an election”, and he has


N N
acted “in breach of his Purported Promissory Oath to refrain from doing
O anything that would result in ‘his being disqualified from being elected as O

a Member at an election’” (see paragraphs 55 and 56 of Mr Wong’s


P P
Skeleton Submissions).
Q Q

18. On 23 March 2018, the Applicant applied by summons to


R R
amend the Form 86 in relation to (i) the relief sought, and (ii) the proper
S threshold that should be applied by the court when considering whether to S

grant leave to apply for judicial review. The grounds of the intended
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application as well as the decision under challenge have remained


B B
unchanged in the draft Amended Form 86.
C C

19. Both Mr Au and the Returning Office oppose the Applicant’s


D D
application for leave to apply for judicial review, on the following
E grounds:- E

(1) Mr Paul Shieh, SC (for Mr Au) submits that there are F

alternative remedies available to the Applicant (namely, an


G G
election petition under Section 61 and/or disqualification
H proceedings under Section 73), and thus the Applicant is H

precluded in law from pursuing judicial review; alternatively


I I
leave to apply for judicial review should be refused as a
J matter of discretion. J

(2) Mr Johnny Mok, SC (for the Returning Officer) submits the


K K
Applicant’s appropriate remedy would be to proceed by way
L L
of an election petition under Section 61(1), and the Applicant

M
has no sufficient standing to challenge the Decision by way of M
judicial review. Accordingly, the present application for leave
N N
to apply for judicial review should be dismissed.

O O
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
Q Q
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

Secretary for Justice’s attendance at the hearing was accordingly excused.


S S

T DISCUSSION T

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21. Section 61 states as follows:-


B B

“(1) An election to return a Member may be questioned only


C C
on the following grounds –

D
(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 -

(i) the person was ineligible to be, or was F


disqualified from being, a candidate at the
G election; or G

(ii) corrupt or illegal conduct was engaged


H in by or in respect of that person at or H
in connection with the election; or
I (iii) corrupt or illegal conduct was engaged I
in by or in respect of that person at or
J in connection with the election; or J

(iv) material irregularity occurred in


K relation to the election, or to the K
polling or counting of votes at the
election; or
L L
(b) a ground specified in any other enactment
M that enables an election to be questioned. M

(2) An election to return a Member may be questioned only


N by an election petition lodged under section 62. N

(3) In this section –


O O
election includes nomination proceedings and the decisions of
the Returning Officer or any Assistant Returning Officer”.
P P

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
R R
more electors entitled to vote at the election; or (b) by a person claiming to

S
have been a candidate in the election. S

T T
23. On the other hand, Section 73 states as follows:-

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“(1) An elector, or the Secretary for Justice, may bring


B proceedings in the Court against any person who is acting, B
[or] claims to be entitled to act, as a Member on the ground
C that the person is disqualified from acting as such. C

(2) Proceedings under this section may not be brought after


D 6 months from the date on which the person concerned D
acted, or claimed to be entitled to act, as a Member.
E (3) If, in proceedings brought under this section, it is proved E
that the defendant acted as a Member while disqualified
from acting in that office, the Court may – F

(a) make a declaration to that effect; and


G G
(b) grant an injunction restraining the defendant from so
acting …
H H
(4) If, in proceedings brought under this section, it is proved
that the defendant claimed to be entitled to act as a Member
I I
while disqualified from acting in that office, the Court may

J J
(a) make a declaration to that effect; and

K (b) grant an injunction restraining the defendant from so K


acting.
L (5) Proceedings brought under this section by a person other L
than the Secretary for Justice are to be stayed until the
M
person has given security for all costs that the person may M
be ordered to pay to any witness giving evidence in the
proceedings on that person’s behalf or to a defendant.
N N
(7) Proceedings against a person on the ground that the person
has, while disqualified from acting as, or claimed to have
O been entitled to act, as a Member may be brought only in O
accordance with this section.
P P
(8) For the purposes of this section, a person is disqualified
from acting as a Member if the person –
Q Q
(a) is not qualified to be, or is disqualified from being, a
Member”.
R R

24. It can be seen immediately that Section 61(2) and


S S
Section 73(7) each provides that applications falling within its scope can
T only be brought under the relevant section. T

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25. “Election petition” under Section 61 relates to challenges to


B B
an “election” (which is defined to include “nomination proceedings” and
C C
“decisions of the Returning Officer”) to return a member. The possible

D
grounds of challenge under this section include the situation where a D
person, who has been declared by the Returning Officer to have been
E E
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
G G
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,
I I
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
K K
“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
M M
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)).
O O

P
26. On the other hand, “disqualification proceedings” under P
Section 73 relate to challenges to a person’s qualification to act as a
Q Q
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
S S
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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to be entitled to act as a member of the Legislative Council, and the


B B
principal relief to be granted by the court, where it is proved that the
C C
person is not qualified to act as a member of the Legislative Council,

D
would be a declaration to that effect and an injunction to restrain the D
person from so acting (see Section 73(3) and (4)).
E E

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

election or by a person claiming to have been a candidate in the election,


H H
whereas under Section 73, a single elector or the Secretary for Justice may
I bring disqualification proceedings. I

J J
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

valid nomination. The Applicant’s complaint is that the Returning Officer


L L
should not have accepted the validity of Mr Au’s nomination (which the
M Applicant characterises as a lack of power on the part of the Returning M

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

was not truthful or complied with. It seems to me to be clear that such


P P
challenge falls within the scope of Section 61(1), and thus the proper
Q procedure to redress the Applicant’s complaint would be by way of an Q

election petition. As a single elector, the Applicant does not, of course,


R R
have sufficient standing to lodge an election petition. However, the
S Applicant has made it clear that it has never been his case that he is unable S

to find 9 other electors to join him in an election petition. This was stated
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in paragraph 15 of Mr Wong’s Supplemental Skeleton Submissions dated


B B
27 March 2018, and confirmed by Mr Wong orally at the hearing. The
C C
standing requirement for an election petition under Section 62 is therefore

D
not an obstacle in the present case. D

E 29. Alternatively, if it is the Applicant’s position that his true E

complaint lies in Mr Au’s lack of qualification to act as a member of the


F
Legislative Council and his wish is to stop Mr Au from so acting, the
G proper procedure to redress such complaint would be by way of G

disqualification proceedings under Section 73. Either way, there would be


H H
an appropriate statutory, alternative, remedy open to the Applicant.
I I

30. The question of whether an election, or the qualification of an


J J
elected person from acting as a member of the Legislative Council, can be
K challenged by way of judicial review instead of by an election petition or K

disqualification proceedings has been considered by the Hong Kong courts


L L
on a number of occasions.
M M

31. In Re Lau San Ching [1995] 2 HKLR 95, it was held by the
N N
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

returning officer in a District Board election on whether he was qualified


P P
for nomination as a candidate could only be made by way of an election
Q petition after the election, and the remedy of judicial review was excluded. Q

Godfrey JA, the third member of the Court of Appeal, considered that the
R R
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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San Ching concerned a challenge to a District Board election, the relevant


B B
statutory provisions considered by the Court of Appeal are materially the
C C
same as those relevant to a Legislative Council election contained in the

D
Legislative Council Ordinance. D

E 32. In Re Tang Kai Tak, HCAL 120/2010 (19 November 2010), a E

case concerning an election of rural representative, Andrew Cheung J (as


F
he then was) held that the effect of Lau San Ching was that the process of
G “election” covered the nomination stage (paragraph 26), and that an G

application for judicial review, insofar as nomination was concerned,


H H
should not be entertained whether under the majority view or under
I Godfrey JA’s dissenting view. I

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

34. In Leung Chun Yung v Ho Chun Yan Albert (2013)


P P
16 HKCFAR 735, the Court of Final Appeal held that an election petition
Q under Section 32 of the Chief Executive Election Ordinance, Cap 569, was Q

not the only means by which an election to return the Chief Executive
R R
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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Section 32(1)(a) or (b), such challenge must be made by way of an election


B B
petition but not by way of judicial review (see paragraphs 18 to 29 of the
C C
judgment of the Court of Final Appeal).

D D
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

Legislative Council election by a candidate or prospective candidate could


F
only be pursued by way of an election petition, and refused to grant leave
G to apply for judicial review prior to the election. G

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
J J
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

oath, Lam VP expressed the following views, at paragraphs 82-84:-


L L

(1) It would not be open to persons coming within the scope of


M M
Section 73(7) to bring proceedings by other means like an
N application for judicial review under Section 21J of the N

High Court Ordinance, Cap 4.


O O
(2) It is arguable that Section 73(7) does not preclude someone
P who is not an elector to commence proceedings under P

Section 21J in respect of a disqualified legislator.


Q Q

(3) “[G]iven that Section 73 was enacted to protect members of


R R
the LegCo against unlimited challenges to their offices (by
S way of security for costs and time limit for application), S

I believe even in cases where an applicant is outside the scope


T T
of that section and an application is brought by way of judicial
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review, the court must bear such protection in mind in


B B
assessing whether leave should be granted. In particular,
C C
given that judicial review should not be permitted when an

D
alternative remedy by way of Section 73 is available, the court D
should consider whether an applicant who is not an elector in
E E
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
G G
Section 73. The court must also examine the locus standi of

H
such an applicant carefully if neither the Secretary for Justice H
nor any elector in that constituency is willing to bring
I I
proceedings under Section 73.”

J J
37. Pausing here, it may be noted that:-
K K
(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

or office which has been created by any enactment, the Court


M M
of First Instance may grant an injunction restraining him from
N so acting. N

O
(2) Section 21K(1)(b) of that Ordinance further provides that an O
application to the Court of First Instance for an injunction
P P
under Section 21J shall be made by way of an application for

Q
judicial review. Q

R 38. Lastly, in Mok Ka Kit v President of the Legislative Council R

and Others, HCAL 189/2016 (27 July 2017), which concerned a challenge,
S S
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
B B
ex parte leave granted to the applicant to apply for judicial review on the
C C
ground of lack of sufficient interest or standing. In coming to that

D
conclusion, the learned Judge held that:- D

(1) Section 73 provides the proper and principal legal avenue for
E E
an elector to take out legal proceedings seeking substantive
declarations against a Legislative Council member who has F

been disqualified but has continued to act or claimed to be


G G
entitled to act as a Legislative Council member
H (paragraph 19). H

I
(2) The “elector” envisaged under Section 73(1) who is entitled to I
take out the relevant proceedings must be a registered elector
J J
in the constituency to which the purported Legislative Council

K member belongs (paragraph 20). K

(3) Unless the applicant in a judicial review challenging the


L L
qualification of a Legislative Council member is also an
M elector in the constituency of the challenged Legislative M

Council member, that applicant in general should not be


N N
regarded as having a sufficient interest to bring the judicial
O review (paragraph 21). O

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
S S
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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precluded from seeking to challenge the election or


B B
qualification on those grounds by way of judicial review.
C C
(2) On the other hand, where no specified statutory procedure is
D available to a person seeking to challenge an election or the D

qualification of an elected person from acting as a member of


E E
the Legislative Council, he is not barred from seeking judicial
review merely because the same could be challenged by way F

of some specified statutory procedure(s) by other person(s)


G G
with the necessary standing.
H H
(3) Nevertheless, the remedy of judicial review may be refused in

I
the situation referred to in (2) above on the ground of lack of I
standing or upon the court’s exercise of discretion.
J J
(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

would depend on the facts and circumstances of any particular


L L
case.
M M
(5) A person who is not an elector in the relevant constituency

N would generally not be regarded as having a sufficient interest N


to challenge an election for that constituency or the
O O
qualification of an elected person from acting as a member of

P the Legislative Council for that constituency by way of P

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
S S
election petition under Section 61 or, alternatively, Mr Au’s qualification to

T
act as a member of the Legislative Council by way of disqualification T

U U

V V
- 19 -
A A

proceedings under Section 73, I consider that it is not open to the Applicant
B B
to proceed by way of judicial review.
C C

41. On behalf of the Applicant, Mr Wong seeks to justify the


D D
application for judicial review on that ground that “s.73 of the
E [Legislative Council Ordinance] itself will not be able to dispose of the E

present matter because [it] does not cover the challenge of a declaration
F
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

Court Ordinance Cap.4 under a judicial review” (see paragraph 22 and 24


H H
of Mr Wong’s Skeleton Submissions). Mr Wong also says that that “an
I election petition is inadequate given the relief sought and the unique I

circumstances faced at the time of the initial application” (see


J J
paragraph 15 of Mr Wong’s Supplemental Skeleton Submissions).
K K

42. In respect of the first point mentioned by Mr Wong (namely,


L L
disqualification proceedings under Section 73 would not cover the
M Applicant’s challenge to the declaration and promissory oath made by M

Mr Au in his nomination form), it seems to me that the Applicant’s


N N
challenge to Mr Au’s declaration and promissory oath is not an end in
O itself, but only a step in the Applicant’s complaints that the Returning O

Officer has no power to make the Decision or Mr Au is not qualified to act


P P
as a member of the Legislative Council. For reasons stated above, I
Q consider that these complaints can adequately be redressed by way of an Q

election petition or disqualification proceedings under Sections 61 and 73


R R
respectively.
S S

T T

U U

V V
- 20 -
A A

43. In respect of the second point mentioned by Mr Wong


B B
(namely, the question of relief), it is significant that, as a matter of fact, the
C C
Applicant did not apply for any interim relief to restrain the Returning

D
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
E E
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
G G
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
I I
of the Legislative Council is to start the period within which an election

J
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
K K
reason for proceeding by way of judicial review. In any event, I see no

L reason why, as a matter of jurisdiction, the court would have no power to L


grant appropriate interim relief in properly constituted proceedings under
M M
Section 61 or Section 73 where the circumstances are such as would justify

N interim relief being granted. In so far as final relief is concerned, Section N


72 expressly provides that if, on the hearing of an election petition, the
O O
Court of First Instance determines that the person who was declared as

P duly elected as a member was not duly elected, subject to provisions P

relating to appeals from the Court of First Instance’s determination, that


Q Q
person ceases to be a member and that person’s office becomes vacant
R from the date on which the written judgment of the court is handed down, R

while Section 73(3) expressly provides that if it is proved that the


S S
defendant acted as a member while disqualified from acting in that office
T the court may grant an injunction restraining him from so acting. I do not T

U U

V V
- 21 -
A A

see what further injunctive relief would be required or necessary in the


B B
circumstances. In particular, I do not accept that the relief of a mandatory
C C
injunction to compel the Returning Officer to publish a “rectifying” notice

D
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
E E
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
H H
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

hold that he has standing in such circumstances would be to allow him to


J J
circumvent the statutory standing requirement for an election petition
K K
under Section 62.

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

accept the validity of the nomination of Mr Au as a candidate at the


N N
By-election. While I can see a possible argument that the Returning
O Officer should not have accepted Mr Au’s nomination as being valid (and O

in that sense the Decision may be said to have been wrongly made), I am
P P
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

Such contention is, in my view, not reasonably arguable.


R R

S 46. For the avoidance of doubt, I should make it clear that I have S

not reached any conclusion on the questions of whether Mr Au’s


T T

U U

V V
- 22 -
A A

nomination is valid, or whether there is any good or sufficient ground to


B B
question his qualification to act as a member of the Legislative Council.
C C
These questions do not arise for determination for the purpose of disposing

D
of the present application for leave to apply for judicial review. D

E DISPOSITION E

47. For the foregoing reasons, I dismiss the Applicant’s F

application for leave to apply for judicial review, as well as his summons
G G
dated 23 March 2018.
H H

48. On the question of costs, the applicable principles as set out in


I I
the judgment of the Court of Final Appeal in Leung Kwok Hung v
J President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at J

paragraph 17, are well settled, and do not have to be repeated here. In the
K K
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

been of material benefit to the court in determining the leave application. I


O O
st nd
therefore order the Applicant to pay the costs of the 1 and 2 Putative
P Respondents, to be taxed if not agreed, with certificate for two counsel. P

There shall be no order as to costs as between the Secretary for Justice and
Q Q
the other parties to this application.
R R

S S

T T

U U

V V
- 23 -
A A

49. Lastly, it remains for me to thank counsel for the assistance


B B
rendered to the court.
C C

D D

E (Anderson Chow) E
Judge of the Court of First Instance
High Court F

G G
Mr Tim Wong, instructed by Peter K H Wong & Co, for the Applicant
H H
Mr Paul Shieh, SC, Mr Jeffrey Tam and Mr Jason Lee, instructed by Ho,
Tse, Wai & Partners, for the 1st Putative Respondent
I I
Mr Johnny Mok, SC and Mr Jenkin Suen instructed by Department of
J Justice, for the 2nd Putative Respondent J

K Secretary for Justice’s attendance was excused K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V