Lau Wing Hong v. Chan Yuen Man, Amy (Returning Officer for The New Territories East Geographical Constituency) and Another

HCAL 844/2018

[2019] HKCFI 2287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 844 OF 2018

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Before: Hon Chow J in Court

Date of Hearing: 4 September 2019

Date of Judgment: 13 September 2019

Date of Corrigendum: 16 September 2019

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CORRIGENDUM

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Please note the following corrigendum in the Judgment dated 13 September 2019:-

“Annex I should be inserted as part of the judgment at the end.”

Dated the 16^th day of September 2019

Annex I

Reasons for Ruling LAU Wing-hong’s Nomination as Invalid

1.   Section 40(l)(b)(i) of the Legislative Council Ordinance (Cap. 542) provides that a candidate is not validly nominated unless the nomination form includes a declaration to the effect that the candidate will uphold the Basic Law (“BL”) and pledge allegiance to the Hong Kong Special Administrative Region (“HKSAR”). The declaration is contained in section 5 of Part II of the nomination form. Mr LAU Wing-hong (Mr LAU) submitted the duly signed declaration on 25 January 2018 together with the nomination form.

2.     In addition, the Electoral Affairs Commission has prepared a Confirmation Form for the use of the Returning Officer, in order that every candidate may confirm that in signing the relevant declaration in the nomination form, he/she has clearly understood Articles 1, 12 and 159(4) of the BL, the legal requirements and obligations. According to the content of the Confirmation Form, a candidate may confirm that he/she understands that to uphold the BL means to uphold the BL including the aforesaid articles. Mr LAU submitted a Confirmation Form duly signed by him on 25 January 2018.

3.   The declaration under section 40(l)(b)(i) of Cap. 542 indeed requires that the person must genuinely and truly intend to uphold the BL and pledge allegiance to the HKSAR. In the validation process, I have noticed the following relevant Facebook posts of Mr LAU through which he sought to elaborate his stance of supporting the independence of Hong Kong and articulate the underlying justifications:

(1) 15 Apri12016: “第一項是有關香港前途問題。我個人比較傾向香港獨立建國，但並不視港獨為唯一選項，更不認為香港應該或可能在短時間內立即建國”;

(2) 17 August 2016: “我支持港獨...香港獨立，殊不簡單，相對城邦論而言，絕不務實。然而，一旦香港真的可以獨立，長遠來說作為完全獨立國家，可以徹底擺脫中國，重建一個全新秩序，收更好效益。同時，沒有了中國在背後，進行外交和軍事等操作也變得更簡單直接無礙。更重要的是，我們將可享受作為獨立國家的優越感”;

(3) 22 August 2016: “我支持港獨，不認同「永續基本法」”;

(4) 23 August 2016: “我支持全民制憲，但我更支持香港獨立。這個立場兩邊不討好，但就是我的立場”;

(5) 30 August 2016: “任何候選人，夠膽公開表態支持香港獨立，我都一定會支持”;

(6) 31 August 2016: “我支持香港獨立”;

(7) 19 October 2016: “接受日本電視台訪問，將香港獨立理念散播海外”;

(8) 7 November 2016: “一日香港是中國屬地，我們就要接受中國有權釋法的事實。要「反釋法」，惟一合理可能性只有香港獨立”; and

(9) 9 November 2016: “民主的惟一意義是實現人民對國家的主權…所謂爭取民主，就是從本質上為香港人民爭取主權”.

4.   The “Notice of Legislative Council By-election” for the 2018 Legislative By-election was published on 1 December 2017. Thereafter, on 27 December 2017, Mr LAU posted on his Facebook, the following statement “基於政治現實，本人現正式宣佈，本人現時已不再支持香港獨立，並全心全意擁護及熱愛基本法”. It was also reported in an article of Sing Tao Daily on 31 December 2017 a statement by Mr LAU: “重申自己不再支持「港獨」，「我現在開始不支持港獨，全心全意擁護和熱愛《基本法》」，不擔心被拒「入閘」。被問到會否簽署確認書時，他表示會做所有能令自己進入議會的事情。”. On an objective reading, Mr LAU himself claimed that (i) he no longer (“已不再”) supports the independence of Hong Kong, thereby admitting that he had been (at least until the time of this statement) supporting the independence of Hong Kong; and (ii) his present claim that he no longer supports the independence of Hong Kong, that he now starts to (“我現在開始”) pledge full allegiance to the BL (“全心全意擁護及熱愛基本法”) is made purely because of political reality (“政治現實”). This understanding is further bolstered by his claim that he would do anything just to get into the Legislative Council (“會做所有能令自己進入議會的事情”).

5.   I have also noticed the following relevant statements made by Mr LAU in his Facebook posts:

(1) 2 January 2018: “新東議席不單屬於梁頌恆或梁天琦，更是屬於所有認同本土派理念的選民。我在公佈有意參選的新聞稿上提到，我希望透過這個決定，讓新東補選的焦點重回到政治原則。談到政治原則，無可避免談到今次被DQ的議席，實際上由誰擁有的議題。在憲報上被褫奪議席的名字是梁頌恆，而他參選是代替在提名階段已被DQ的梁天琦。這些都是不爭的事實。而天琦的每一票，都是憑初一旺角示威的一位位義士犧牲而換取回來的。六萬六千票，是對旺角抗爭者的認可，也是整個本土派初次在香港政治舞台上形成氣候。亦是這股氣勢，最終延續至促使梁、游等本土派議員當選”; and

(2) 25 January 2018: “我不是甚麼知名人物，口才和魅力都遠遠及不上天琦。我唯一可以為本土派和香港付出的，只有我的汗水、體力和青春。在這個最艱難時候，我希望可以企出來...”.

On an objective reading, although Mr LAU used the words “本土派”, he clearly holds himself out to succeed or replace Mr LEUNG Chung-hang Sixtus, former Member-elect who supports the independence of Hong Kong and had been disqualified for failure to take the Legislative Council oath and Mr LEUNG Tin-kei Edward, who had been disqualified from being nominated in the 2016 Legislative Council General Election for failure to satisfy the requirements under section 40(1)(b)(i) of Cap. 542. In this regard, there is press report that Mr LEUNG Chung-hang Sixtus has made comments supportive of Mr LAU to run in the 2018 Legislative Council By-election^[1].

6.   Mr LAU signed both the declaration required under section 40(l)(b)(i) of Cap. 542 and the Confirmation Form. While the signed Confirmation Form is one of the relevant factors to be taken into account, it remains necessary to see whether there are materials, primarily those posted on Mr LAU’s own Facebook, with contrary indication.

7.  Having considered the above factors and all other relevant circumstances, and taking into account the legal advice obtained, I consider that, instead of indicating a genuine change of intention, Mr LAU’s words and acts mentioned in paragraphs 3 to 5 above express an apparent reluctance to denounce his hitherto manifested and sustained stance in favour of independence of Hong Kong. Hence, I am not satisfied that Mr LAU genuinely and truly intends to uphold the BL and pledges allegiance to the HKSAR, and that he duly complied with section 40(1)(b)(i) of the Legislative Council Ordinance in making the declaration. I therefore decide that Mr LAU Wing-hong is not validly nominated.

Miss CHAN Yuen-man Amy

Returning Officer for the

New Territories East Geographical Constituency

2018 Legislative Council By-election

31 January 2018