郭卓堅 v. 香港島地方選區選舉主任鄧如欣

HCAL 130/2018

[2018] HKCFI 433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 130 OF 2018

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Before: Hon Chow J in Chambers

Date of Decision: 28 February 2018

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D E C I S I O N

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1.This is an application for leave to apply for judicial review of the decision of the Returning Officer (“the Returning Officer”) for the Hong Kong Island Geographical Constituency for the 2018 Legislative Council By-election (“the By-election”) dated 27 January 2018 that Miss Agnes Chow (“Miss Chow”) was not validly nominated as a candidate at the By-election (“the Decision”).

2.The application was made by the Applicant on 29 January 2018.  The Applicant’s grounds for seeking to challenge the Decision, as stated in the Form 86, are that: (i) if the Returning Officer was correct in her previous decision that Mr Law Kwun Chung (“Mr Law”) was validly nominated as a candidate at the 2016 Legislative Council Election, her decision in relation to Miss Chow would be either unconstitutional or amount to maladministration, and (ii) if the Returning Officer was incorrect in her previous decision in relation to Mr Law, she would have violated the requirement contained in the Legislative Council Oath to uphold the Basic Law and be guilty of maladministration.

3.In his first affirmation filed in support of the application, the Applicant confirms that he is not an elector for the Hong Kong Island Geographical Constituency.

4.In Re Lau San Ching [1995] 2 HKLR 95, it was held by the majority of the Court of Appeal (Nazareth and Litton JJA) that any challenge by a candidate (or prospective candidate) to a decision of a returning officer in a District Board election on whether he was qualified for nomination as a candidate could only be made by way of an election petition after the election, and the remedy of judicial review was excluded.  Godfrey JA, the third member of the Court of Appeal, considered that the remedy of judicial review was not absolutely barred, but “very compelling reasons” must exist before the court would consider allowing intervention before the date of the election by way of judicial review.  Although Lau San Ching concerned a challenge to a District Board election, the relevant statutory provisions considered by the Court of Appeal are materially the same as those relevant to a Legislative Council election contained in the Legislative Council Ordinance, Cap 542 (“the LC Ordinance”).  The decision of the Court of Appeal in Lau San Ching was followed by Lam J (as he then was) in Hans Richard Mahncke v Electoral Affairs Commission, HCAL 90/2012 (26 July 2012), and more recently by Au J in Leung Tin Kei Edward v Electoral Affairs Commission, HCAL 133/2016 (27 July 2016), both concerning Legislative Council election.

5.The above decisions may, arguably, be distinguished on the ground that the Applicant here is not a “candidate”.  Further, he does not claim to be a candidate, or an elector entitled to vote at the By-election.  If the Decision can only be challenged by an election petition under Section 62 of the LC Ordinance, a person (or a group of persons) in the position of the Applicant would never be able to challenge a returning officer’s decision on the validity of a candidate’s nomination, and indeed other matters pertaining to an election to return a member to the Legislative Council.

6.In the absence of full arguments, I prefer to leave open the question of whether a person who is neither a candidate (or prospective candidate) nor an elector for the relevant constituency is absolutely barred from seeking to challenge an election to return a member to the Legislative Council by way of judicial review.  I consider that the present application can be disposed of on the simple basis that it is plain that the remedy of judicial review should, as a matter of discretion, be refused at this stage, because (i) granting leave to apply for judicial review could have a “most deleterious effect”[1] on the forthcoming By-election scheduled to be held on 11 March 2018, and (ii) the result of the By-election can be challenged afterwards by Miss Chow herself (being the person most directly and immediately affected by the Decision) or by 10 or more electors entitled to vote at the By-election (who would obviously have a stronger interest in the matter than the Applicant), by way of an election petition under Section 62 of the LC Ordinance.  There is nothing in the materials before the court to indicate that there will be any impediment to such election petition being presented by either Miss Chow or 10 or more electors after the election on 11 March 2018.

7.In so far as the Applicant is seeking to challenge the Returning Officer’s previous decision that Mr Law was validly nominated as a candidate at the 2016 Legislative Council Election, the Applicant is way out of time.  There is no good reason to extend time for the Applicant to raise such late challenge, particularly where Mr Law has since been disqualified from assuming office as member of the Legislative Council.  I pause to add that the Applicant has not, as a matter of fact, sought any extension of time in his Form 86.  Further, any suggestion that the Returning Officer somehow violated the requirement contained in the Legislative Council Oath to uphold the Basic Law is entirely misconceived, since she was not required to take the Legislative Council Oath.

8.For the foregoing reasons, the application for leave to apply for judicial review is dismissed, with no order as to costs.

The applicant acting in person

Department of Justice, for the putative respondent