Leung Tin Kei Edward v. Electoral Affairs Commission

HCAL 133/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 133 OF 2016

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AND

HCAL 134/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 134 OF 2016

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________________

(heard together)

Before: Hon Au J in Chambers (Open to Public)

Date of Hearing: 27 July 2016

Date of Decision: 27 July 2016

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D E C I S I O N

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1.The applicants filed their respective leave applications for judicial review on the morning of 25 July 2016.  In the intended judicial reviews, they seek to challenge the lawfulness of the Electoral Affairs Commission (“the EAC”)’s decision (“the EAC Decision”) to ask candidates nominated to run for the 2016 LegCo election to submit to the relevant Returning Officer (“the RO”) a duly signed Confirmation Form in addition to the Nomination Form.

2.In the respective Forms 86, the applicants have however asked the court to have an urgent rolled-up hearing of the leave applications and the intended judicial reviews to finally determine the judicial reviews before 29 July 2016 at 5pm, which is the close of the nomination period.  In other words, the applicants say that there is such urgency to hear and finally determine the judicial reviews within four days of the filing of the leave applications.

3.As directed by this court, today’s hearing is only to determine whether the applicants can show and justify such urgency.

4.After hearing the parties, I am satisfied that there is no question of such urgency. My reasons are as follows.

5.It is common ground that a candidate nominated to run for a LegCo election is required to submit to the relevant RO a Nomination Form during the prescribed nomination period.  See: section 10(11) of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap 541D) (“the Regulation”).

6.After receiving a Nomination Form, the RO must decide as soon as practicable whether the candidate’s nomination is valid or not in accordance with the relevant regulations.  See: section 42A of the Legislative Council Ordinance (Cap 542) (“the LCO”).

7.Further, the RO is entitled to seek further information from a candidate to decide whether the nomination is a valid one.  See: section 10(10) of the Regulation.

8.There is also no statutory requirement that the RO has to make that decision within the nomination period.

9.The applicants’ present intended judicial reviews seek to challenge a decision relating to the nomination even before the RO has decided whether the relevant nomination is valid or not.

10.In relation to this, it is pertinent to note that the Court of Appeal has held in Re Lau San Ching [1995] 2 HKLR 95 that the proper and usual remedy for an aggrieved elector whose nomination has been declared invalid by the RO is by way of an election petition lodged after the end of the election.[1]  The Court of Appeal by majority (Litton and Nazareth JJA) also emphasized that the court could not entertain any intermediate judicial proceedings seeking to challenge the various intermediate stages of an election (including the nomination stage) before the end of the election.[2]  This is so because firstly such intermediate challenges (if entertained) would have the “most deleterious effect” on the election process, and secondly an aggrieved elector would in any event have a remedy by way of post-election petition and thus would not suffer any irreversible prejudice by not having his intermediate judicial challenge entertained.  The Court of Appeal’s above conclusion that the court could not entertain any intermediate judicial proceedings in an election process is to protect the integrity and certainty of the carefully crafted statutory electoral process, including the statutory requirement to challenge the election process by election petition, which has been laid down by the legislature.[3]

11.This majority decision that the court could not entertain any pre-election judicial review is binding on this court.  It has also been repeatedly followed by the court.  See: Tang Kai Tak (HCAL 120/2010, 24 November 2010) at paragraphs 6, 24 - 37, per A Cheung J (as the learned CJHC then was) and Hans Richard Mahncke v Electoral Affairs Commissions (HCAL 90/2012, 26 July 2012) at paragraphs 3 - 8, per Lam J (as the learned VP then was).

12.Further, as observed by A Cheung J in Tang Kai Tak at paragraph 37, if the court could not entertain a pre-election judicial review challenge of a nomination decision, as the aggrieved person could and should seek remedy by way of a post-election petition, there is simply no question of the court dealing with the matter urgently before the close of the relevant nomination period.

13.Mr Lee SC for the applicants argues that the present applications are distinguishable from Lau San Ching.

14.First, he says the present applicants are seeking to challenge the EAC Decision which was made before the nomination process.  Thus, they could not challenge its legality by way of an election petition.

15.I am unable to accept this.  Although the timing of the EAC Decision was made before the nomination process, it is a decision which relates to and involves the nomination process.  It concerns what a nominated candidate is asked to submit in the nomination process.  The applicants themselves also adopt the position that the RO will take into account the fact that a candidate does or does not sign and submit a Confirmation Form as a relevant factor in deciding the validity of the nomination (see paragraph 6 of the applicants’ reply submissions).  This in my view must be regarded as forming part and partial of the nomination process, which the applicants could challenge by way of an election petition.[4]

16.Second, Mr Lee says Lau San Ching concerned with a District Council election, while the present cases relate to the more important LegCo election.  This is also an invalid distinction, as already held by Lam J in Hans Richard Mahncke.  His Lordship has concluded that the same rationale propounded in Lau San Ching applies equally to the consideration in a LegCo election.

17.Third, Mr Lee submits that Lau San Ching involved only one election seat while the present complaints may involve a number of seats.  With the greatest respect, I cannot see how the number of seats involved in a complaint would materially affect the above rationale given by the Court of Appeal in Lau San Shing.

18.I therefore reject Mr Lee’s above submissions in seeking to distinguish Lau San Ching. In my view, the Court of Appeal’s reasons in concluding that the court could and should not entertain a pre-election judicial review (let alone entertaining it on an urgent basis) must apply with equal if not greater forcein relation to the present applications.

19.As rightly pointed out by Mr Mok SC for the EAC, all the applicants in the present applications are able and free to submit the Nomination Form without the Confirmation Form.  In other words, they are free to submit the Nomination Form in the nomination period regardless of the legality of the EAC Decision.  The relevant RO would still proceed to consider whether the candidates who have submitted only the Nomination Forms are validly nominated.  As widely reported in the media lately, as a matter of fact, there are already a number of candidates who have not submitted the Confirmation Form have had their nominations confirmed valid by the ROs.

20.In fact Mr Leung in the present case under HCAL 133/2016 has already submitted the Nomination Form without the Confirmation Form.  All that is left is for the RO to decide whether or not Mr Leung’s nomination is valid.  In relation to that, the RO has already asked for further information from Mr Leung.

21.If the RO decides that Mr Leung has been validly nominated, he would be able to take part in the election in the normal way, and he would not be in any way prejudiced by the legality or otherwise of the EAC Decision or by the fact that the Confirmation Form had not been submitted with the Nomination Form.  He would therefore not be prejudiced in any way by not having his intended judicial review heard and determined before the end of the nomination period.

22.If on the other hand, the RO decides that Mr Leung’s nomination is invalid, as mentioned above, his remedy should lie in lodging an election petition after the election has completed.  He would again not suffer any irreversible prejudice by not having his intended judicial review determined before the end of the nomination period.

23.In the premises, there is no justification for the court to adopt the unusual course to deal with the matter urgently by holding a rolled-up hearing and determine the intended judicial review before the close of the nomination period.

24.Similarly, the applicants under HCAL 134/2016 (respectively Mr Chan and Mr Ng) could equally submit their Nomination Forms without the Confirmation Forms before the close of the nomination period.  The fact that (as stated at paragraphs 16, 17, 60 and 61 of their Form 86) they of their own choice choose not to do so could not have put them in a different position from Mr Leung when the court has to consider whether there is urgency to deal with their intended judicial review.

25.For all the above reasons, I am not satisfied that these intended judicial reviews must be heard and determined urgently before the end of the nomination period.

26.I therefore refuse the applicants’ request that these leave applications shall be dealt with on an urgent basis.  I further direct that these leave applications shall be dealt with by the court in the normal manner.

27.The parties agree that costs of this hearing be reserved, and I so order.

Mr Martin Lee SC, Mr Hectar Pun SC, and Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co, for the applicant in HCAL 133/2016 and the applicants in HCAL 134/2016

Mr Johnny Mok SC, Mr Abraham Chan, and Mr James Man, instructed by the Department of Justice, for the putative respondent in HCAL 133/2016 and HCAL 134/2016