Wong Ho Ming v. Secretary for Justice

HCAL 2124/2019

[2020] HKCFI 1132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2124 OF 2019

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J U D G M E N T

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INTRODUCTION

1.The question which arises for determination in this application is whether various legislative provisions which provide that a person shall be disqualified from being nominated as a candidate at an election, and from being elected as (i) a member of the Legislative Council, (ii) a member of a District Council, and (iii) a Rural Representative for a Rural Area if he is or has been convicted in Hong Kong or any other place of an offence for which he has been sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine for a period of 5 years after the date of his conviction (“the Impugned Measure”) are inconsistent with the rights to vote and to stand for election under Article 26 of the Basic Law (“BL 26”) and/or the right to participate in public life under Article 21 of the Hong Kong Bill of Rights (“BOR 21”).

2.For reasons which I shall endeavour to explain in this judgment, I am of the view that the Impugned Measure is lawful and constitutionally compliant.

THE APPLICANT’S DISQUALIFICATION

3.The Applicant is a Hong Kong permanent resident over the age of 21.  He has been a resident of Ha Wo Che, Sha Tin, since his birth.  The Applicant describes himself as a social activist.  He joined the League of Social Democrats (社會民主連線) in 2008, and is currently its Chairman.

4.In November 2015, the Applicant stood in the District Council Ordinary Election in the Lek Yuen Constituency of Sha Tin District Council and received 1,406 votes.

5.In September 2016, the Applicant stood in the Legislative Council General Election in the New Territories West Geographical Constituency and received 28,529 votes.

6.Over the years, the Applicant has been convicted and sentenced to imprisonment on a number of occasions, including:

(1)     On 30 December 2015, the Applicant was convicted of the offence of unlawful assembly in ESCC 3658/2014 in connection with a demonstration outside the Legislative Council Chamber objecting to development works in the North East New Territories New Development Areas.  On 19 February 2016, the Applicant was sentenced by the magistrate to 120 hours of community service.  On 15 August 2017, upon an application for review of sentence by the Secretary for Justice in CAAR 3/2016, the Court of Appeal set aside the community service order made by the magistrate and substituted it by a sentence of 13 months’ imprisonment.  On 7 September 2018, upon his appeal in FACC 4/2018, the Court of Final Appeal reduced the sentence to 3 months and 9 days (being the period of time that the Applicant had spent in prison).

(2)     On 13 October 2017, the Applicant was convicted of the offence of criminal contempt by Andrew Chan J in HCMP 798/2015 in connection with the “Occupy Movement” in Mong Kok on 26 November 2014.  On 17 January 2018, the judge imposed a prison term of 4 months and 15 days, which the Applicant served between 17 January 2018 and 16 April 2018.  The Applicant’s appeal against liability to the Court of Appeal in CACV 259/2017 was dismissed on 23 March 2018, and his application for leave to appeal to the Court of Final Appeal in FAMV 55/2018 was dismissed by the Appeal Committee on 18 December 2018.

(3)     On 9 April 2019, the Applicant was convicted in the District Court in DCCC 480/2017 of the offences of “incitement to commit public nuisance” and “incitement to incite public nuisance” in connection with the “Occupy Movement” in the vicinity of Admiralty on 28 September 2014.  On 24 April 2019, he was sentenced to 8 months’ imprisonment for each offence, to be run concurrently.  His appeal against both conviction and sentence is pending hearing.  In the meantime, he has completed serving his sentence.

7.Section 39 of the Legislative Council Ordinance (Cap 542) (“the LCO”), Section 21 of the District Councils Ordinance (Cap 547) (“the DCO”) and Section 23 of the Rural Representative Election Ordinance (Cap 576) (“the RREO”), which are all in similar terms, set out various categories of persons who are disqualified from being nominated as a candidate at an election and from being elected as a member of the Legislative Council, a member of a District Council, and a Rural Representative for a Rural Area respectively.

8.The particular provisions which are challenged by the Applicant in the present application for judicial review are Section 39(1)(e)(i) of the LCO, Section 21(1)(e)(i) of the DCO, and Section 23(1)(e)(i) of the RREO (“the Impugned Provisions”):

(1)     Section 39(1)(e)(i) of the LCO states as follows:

“A person is disqualified from being nominated as a candidate at an election, and from being elected as a Member, if the person -

(e) … where the election is to be held or is held within 5 years after the date of the person’s 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 term exceeding 3 months without the option of a fine”.

(2) Section 21(1)(e)(i) of the DCO states as follows:

“A person is disqualified from being nominated as a candidate at an election, and from being elected as an elected member, if the person -

(e) … where the election is to be held or is held within 5 years after the date of the person’s 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 term exceeding 3 months without the option of a fine”.

(3) Section 23(1)(e)(i) of the RREO states as follows:

“A person is disqualified from being nominated as a candidate at an election, and from being elected as a Rural Representative for a Rural Area, if the person -

(e) … where the election is to be held or is held within 5 years after the date of the person’s 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 term exceeding 3 months without the option of a fine”.

9.The effect of the Impugned Provisions is that a person convicted of a criminal offence in Hong Kong or elsewhere is disqualified from being nominated as a candidate at an election, and from being elected as (i) a member of the Legislative Council, (ii) a member of a District Council, and (iii) a Rural Representative for a Rural Area if:

(1)     his sentence for that offence is a term of imprisonment exceeding 3 months (“the Sentence Threshold”); and

(2)     the election is held within 5 years after the date of his conviction (“the Disqualification Period”).

10.By reason of his latest conviction and sentence (subject to the outcome of his pending appeal) and by the operation of the Impugned Provisions, the Applicant has been, and will remain, disqualified from being nominated as a candidate or being elected as a member of the Legislative Council or a District Council or as a Rural Representative up to 8 April 2024.  In particular, the Applicant was, or will be, disqualified in respect of following elections:

(1)     the 2019 District Council Ordinary Election, which took place in November 2019;

(2)     the Legislative Council General Election to be held in September 2020;

(3)     the election of the Resident Representative for the Ha Wo Che Village to be held in around January 2023 (according to the Applicant, his father was elected as the Resident Representative for the Ha Wo Che Village of Sha Tin Rural Committee for five consecutive terms from 2003 to 2023); and

(4)     the District Council Ordinary Election to be held in around November 2023.

APPLICATION FOR JUDICIAL REVIEW

11.On 20 July 2019, the Applicant made the present application for leave to apply for judicial review of the Impugned Provisions, contending that they are inconsistent with BL 26 and BOR 21.

12.BL 26 states as follows:

“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.”

13.BOR 21, so far as relevant, states as follows:

“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”.

14.It is not in dispute that the rights protected by BL 26 and BOR 21 are engaged in the present case.  It is also not in dispute that those rights are not absolute rights[1].  Accordingly, the question for determination is whether the restriction on those rights imposed by the Impugned Provisions, ie the Impugned Measure, is proportional[2], applying the well-established 4-step proportionality test, namely:

(1)     whether the Impugned Measure pursues a legitimate aim;

(2)     if so, whether it is rationally connected with advancing that aim;

(3)     whether it is no more than necessary for that purpose; and

(4)     whether a reasonable balance has been struck between the societal benefits of the restriction and the inroads made into the constitutionally protected rights of the individual, asking in particular whether the pursuit of the societal interest results in an unacceptably harsh burden on the individual[3].

LEGISLATIVE HISTORY OF THE IMPUGNED PROVISIONS

15.In Hong Kong, members of the Legislative Council and District Councils (with the exception of some ex officio members) and Rural Representatives are returned from elections.

16.There are at present a total of 70 seats in the Legislative Council, with 35 members to be returned from elections in Geographical Constituencies, and the remaining 35 members from Functional Constituencies.  BL 67 provides that the Legislative Council shall be constituted by election, while BL 69 provides that the term of office of the Legislative Council shall be 4 years, except the first term which shall be 2 years.

17.There are 18 District Councils, with one being established for each of the 18 Districts of Hong Kong.

(1)     Section 9(1) of the DCO provides that a District Council is to consist of (i) elected members, and (ii) if it is a District Council established for a District in which there is one or more Rural Committees, as ex officio members, the Chairman of each such Rural Committee while holding office as the Chairman (subject to certain exceptions which are not material for the present purpose).

(2)     Under Section 22(1) of the DCO, an elected member holds office for a period of 4 years beginning on 1 January next following the ordinary election in which the member was elected and vacates office at the end of that period.

18.The office of a Rural Representative is created by the RREO.  Under the RREO:

(1)     “Rural Area” (鄉郊地區) is defined to mean an Existing Village[4] (現有鄉村), an Indigenous Village (原居鄉村), a Composite Indigenous Village (共有代表鄉村) or a Market Town (墟鎮).

(2)     “Rural Representative” (鄉郊代表) is defined to mean -

(a)     a “Village Representative” (村代表) in relation to a Village; and

(b)     a “Kaifong Representative” (街坊代表) in relation to a Market Town.

(3)     “Village Representative” (村代表) is further defined to mean -

(a)     in relation to an Existing Village, a “Resident Representative” (居民代表) for the Village; and

(b)     in relation to an Indigenous Village or a Composite Indigenous Village, an “Indigenous Inhabitant Representative” (原居民代表) for the Village.

19.Under Section 5(1), the office of Rural Representative, in relation to an Existing Village, means the office of Resident Representative established for the Village.  Under Section 5(2), a Resident Representative shall be elected.  Under Section 7(2), a person elected at a rural ordinary election as a Rural Representative holds office for 4 years beginning on 1 April next following the ordinary election, and vacates office on the expiry of that term of office.

20.The candidature and election disqualification criteria in the nature of those found in the Impugned Provisions have been in place in Hong Kong since the early 1980s.

(a)     Urban Council and District Boards prior to 1997

21.District Boards became a part of the political structure of Hong Kong in the early 1980s following a public consultation carried out pursuant to a green paper entitled “A Pattern of District Administration in Hong Kong” published by the Government in June 1980 and a further white paper entitled “District Administration in Hong Kong” published by the Government in January 1981.  Chapter 5 of the white paper related to “Qualifications and Disqualifications for Candidates”.  The following was stated:

“Qualifications for Candidates

[42] As stated, some part of public opinion suggests that candidates should meet certain higher standards of qualification 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.

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 …”

22.The District Boards Ordinance (Cap 366) and the Electoral Provisions Ordinance (Cap 367) were enacted in 1981.  The disqualification criteria of (i) a Sentence Threshold of 3 months, and (ii) a Disqualification Period of 10 years were provided for in Section 9(4)(f)(i) of the District Boards Ordinance.  At about the same time, the same disqualification criteria were applied to anyone seeking to be nominated as a candidate or elected as a member of the Urban Council by Section 19(g)(i) of the Electoral Provisions Ordinance.

(b)     Legislative Council prior to 1997

23.In 1985, some members of the Legislative Council were for the first time returned from elections in functional constituencies. The Legislative Council (Electoral Provisions) Ordinance (Cap 381) was enacted in April 1985.  Section 21(g)(i) of that Ordinance applied the same disqualification criteria of (i) a Sentence Threshold of 3 months and (ii) a Disqualification Period of 10 years for any person seeking to be nominated as a candidate or elected as a member of the Legislative Council.

24.The year of 1991 saw direct elections to return members to the Legislative Council from geographical constituencies for the first time.  For that purpose, the Electoral Provisions Ordinance was amended in 1990 to apply the disqualification criteria of (i) a Sentence Threshold of 3 months, and (ii) a Disqualification Period of 10 years to those elections, while the existing provisions of the Legislative Council (Electoral Provisions) Ordinance continued to apply to elections in functional constituencies.

(c)     Failed Private Member’s Bill in 1995 to amend the disqualification criteria

25.In July 1995, the Hon Andrew Wong tabled a Private Member’s Bill called the Electoral Provisions (Amendment) Bill 1995 proposing to amend the disqualification criteria then applicable to elections to return members of the Legislative Council, Urban/Regional Council and District Boards such that (i) persons would be disqualified only if they had been convicted of election-related offences, and (ii) the disqualification period would be reduced from 10 years to 4 years.  In moving the Second Reading of the Electoral Provisions (Amendment) Bill 1995, the Hon Andrew Wong explained that the purpose of the amendments was to bring the existing provisions into line with Section 21 of the Hong Kong Bill of Rights Ordinance (Cap 383), which provided for the right to participate in public life.

26.Upon the resumption of the Second Reading of the Electoral Provisions (Amendment) Bill 1995 on 28 July 1995, the Secretary for Constitutional Affairs explained the Government’s opposition to the bill and stated the following:

“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 the representative institutions to which the candidates are to be returned.”

27.After debate, the Electoral Provisions (Amendment) Bill 1995 was defeated by 32 to 22 votes.

(d)     Legislative Council after 1 July 1997

28.In preparation for the enactment of new legislation to provide for Legislative Council elections after 1 July 1997, the Government published a paper entitled “Legal Framework for the First SAR LegCo Election: Review of the Electoral Provisions Ordinance, Cap 367” in July 1997.  In Annex A to that paper, entitled “Review of Disqualification Provisions of the Electoral Provisions Ordinance, Cap 367”, it was proposed that the Disqualification Period should be shortened from 10 years to 5 years “in response to previous legal advice that the 10-year ban may be disproportionate to the offence committed”.  There was, however, no proposal to change the Sentence Threshold of 3 months.

29.The proposal to shorten the Disqualification Period from 10 years to 5 years was included in the Legislative Council Bill 1997 tabled before the Provisional Legislative Council on 14 August 1997 as Clause 37(1)(e)(i) thereof.

30.At the Bills Committee meeting on 9 September 1997, the Hon Andrew Wong proposed that the Disqualification Period should be further reduced to 4 years to tie in with the term of the Legislative Council and the disqualification should apply only to a person who had been convicted of offences of corruption committed in Hong Kong.  However, that proposal was not supported by the Government on the ground that the proposals in the Bill were already less stringent than those contained in the previous electoral legislation.

31.Upon the resumption of the Second Reading of the Legislative Council Bill 1997 on 27 September 1997, the Secretary for Constitutional Affairs explained the intention of the disqualification provisions:

“… in order to ensure the credibility of the Legislative Council, we agree absolutely that strict regulations governing the eligibility of candidates should be set down. That is why we have stipulated in detail in the Bill the conditions under which a person is to be disqualified from being nominated as a candidate…”

32.Regarding Clause 37 of the Bill, the Hon Andrew Wong again proposed that the Disqualification Period should be shortened to 4 years and the Sentence Threshold should be increased to 3 years (from 3 months). After debate, the amendments proposed by the Hon Andrew Wong were voted down.  The Legislative Council Bill 1997 was enacted and became the LCO. Section 39(1)(e)(i) of the LCO has not been amended since its enactment in 1997.

(e)     District Councils after 1997

33.The District Councils Bill was tabled before the Legislative Council on 10 December 1998.  As can be seen from a letter from the Constitutional Affairs Bureau to the Clerk to the Bills Committee dated 8 January 1999 enclosing, inter alia, a table of comparison of the electoral provisions in the District Councils Bill with the LCO, Clause 21 of the bill, which provided for the disqualification of a person from being nominated as a candidate and from being elected as a member of a District Council, was based on Section 39 of the LCO.

34.At the Bills Committee meeting on 2 February 1999, there was a concern raised by the Hon Lee Wing-tat that the Disqualification Period of 5 years would bar a person from being eligible for two District Council elections.  In respect of that concern, the Government responded that similar provisions were found in the previous District Boards Ordinance which set the Disqualification Period at 10 years, and that the Bill had already provided for a shorter period, which represented a significant reduction.  The Hon Andrew Wong also proposed that a shorter Disqualification Period should be applied for offences other than those related to the Corrupt and Illegal Practices Ordinance.

35.In a document entitled “Paper for the House Committee meeting on 26 February 1999, Report of the Bills Committee on District Councils Bill”, the Government gave the following explanation of the purpose of the proposed Disqualification Period of 5 years and Sentence Threshold of 3 months:

“As regards the disqualification provision regarding imprisonment for a term exceeding three months in the past five years, the purpose is to prevent people who have committed serious offences, whether in Hong Kong or elsewhere, from becoming DC members. This is to uphold the image and credibility of District Councils before the public. The disqualification period for certain offences listed in these clauses has been reduced from 10 years to 5 years in order to enable more people to participate in district affairs.”

36.At the Legislative Council meeting on 10 March 1999, the Hon Cheung Man-kwong moved to amend Clause 21 of the District Councils Bill such that no one could be disqualified from being nominated as a candidate and from being elected as a member as a result of having been sentenced to imprisonment for a term exceeding three months without the option of a fine in any other place outside Hong Kong.  After debate, the proposed amendment was voted down.

37.The DCO was eventually passed by the Legislative Council on 10 March 1999.  Clause 21 of the District Councils Bill became Section 21 of the DCO.  There has not been any amendment to Section 21(1)(e)(i) of the DCO since its enactment in 1999.

(f)     Village Representation Election Ordinance 2003 (“VREO”)

38.Prior to the enactment of the VREO in 2003, the village representation and electoral system had evolved in the New Territories over time but was not governed by legislation.  Subsequent to the legal challenge to the validity of the electoral arrangements for the office of village representative which ended up in the Court of Final Appeal in Secretary for Justice v Chan Wah (2003) 3 HKCFAR 459, the Government reviewed the village representation and electoral system, and introduced the Village Representation Election Bill to the Legislative Council in September 2002.  The bill provided for, amongst other things, the establishment of the office of Village Representative (including an Indigenous Inhabitant Representative for an Indigenous Village or a Composite Indigenous Village, and a Resident Representative for an Existing Village) responsible for the rural affairs of the village concerned.  Clause 23(1)(e)(i) of the bill provided for the disqualification criteria of a Sentence Threshold of 3 months and a Disqualification Period of 5 years for nomination and election as a Village Representative.  The wording of Clause 23 of the bill closely tracked the language of Section 21(1)(e)(i) of the DCO and Section 39(1)(e)(i) of the LCO because the Government took the view that the aims and objectives of those disqualification provisions also applied to the election of Village Representatives.

39.The Village Representation Election Bill was passed by the Legislative Council and became the VREO in February 2003.

40.In June 2003, the Election Procedure (Village Representative Election) Regulation (Cap 541L) (“the VRER”), containing detailed rules and regulations governing the election of Village Representatives, was enacted.  The VREO and VRER were renamed as the Rural Representative Election Ordinance and the Electoral Procedure (Rural Representative Election) Regulation respectively in March 2014 to extend the scope of the VREO and VRER to cover the election of Kaifong Representatives for the Market Towns of Cheung Chau and Peng Chau.

41.Section 23(1)(e)(i) of the VREO/RREO has been a part of the laws of Hong Kong since 2003 and has not been amended.

LEGITIMATE AIMS

42.It is the Government’s case that the Impugned Measure advances the legitimate aim of maintaining public trust and confidence in (i) the offices of the Legislative Council, District Council and Rural Representative, (ii) the character, honesty and personal integrity of persons elected to those offices, and (iii) the related electoral processes (collectively, “the Public Confidence Aim”).  This aim is, in my view, plainly a legitimate one which may be pursued by the Government.

43.In Wong Hin Wai v Secretary for Justice [2012] 4 HKLRD 70, Johnson Lam J (as he then was) held that Section 39(1)(b) of the LCO (which provides that a person is disqualified from being nominated as a candidate at an election, and from being elected as a Member, if that person has, in Hong Kong or any other place, been sentenced to death or imprisonment (by whatever named 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) was inconsistent with BL 26 and 39 and BOR 21.  I shall come back to this judgment below.  Nevertheless, his Lordship expressly accepted “the maintenance of public confidence in LegCo and the election process and the ensuring of the proper operation of LegCo as legitimate aims”.  I see no reason why the same reasoning does not apply to the offices of District Council or Rural Representative.

44.Mr Hectar Pun SC (on behalf of the Applicant) argues that the Impugned Measure does not advance any legitimate aim on three grounds.

45.First, Mr Pun makes what may be regarded as a forensic point arising out of a consultation paper on “Disqualification of Candidates with Unserved Prison Sentences and Other Related Matters” (“the Consultation Paper”) published by the Government in July 2014 consequent upon the court’s judgment in Wong Hin Wai.  He refers to and relies upon, in particular, §§2.06 and 2.07 and two footnotes to §2.07 of the Consultation Paper, which stated as follows:

“Maintaining Public Confidence in the LegCo

[2.06] In view of the important functions and powers of the LegCo as prescribed by the Basic Law and hence the responsibilities associated with being a LegCo Member, it is necessary to maintain public trust and confidence in the LegCo and the character, honesty and personal integrity of its Members who discharge those functions and exercise those powers.

[2.07] Generally speaking, the imposition of a prison term (as opposed to other non-custodial sentences) is indicative of the culpability of the offender and the seriousness of the offending conduct. There are views that a convicted person should fully serve the sentence imposed upon him or her in order to fulfill the retributive or rehabilitative aspect of that sentence. There is therefore an argument that if a person has been sentenced to imprisonment by a court of law, he or she should not be regarded as a suitable candidate for an important public office at least until the sentence has been fully served⁸. The concern for upholding public confidence in the integrity of the LegCo Members/candidates may be particularly strong as regards a person who has been convicted of certain offences which, by their nature, cast serious questions over the credibility and integrity of the person in question⁹.

8 This concern is reflected in the current section 39(1)(d) of the LCO which disqualifies any person who is serving a sentence of imprisonment on the date of nomination or of the election.

9     Section 39(1)(e)(ii), (iii) and (iv) of the LCO disqualifies a person who was within the last five years convicted of offences related to corrupt or illegal conduct or bribery or election-related offences.”

46.Mr Pun argues that because the two footnotes to §2.07 expressly referred to Section 39(1)(d) and 39(1)(e)(ii), (iii) and (iv), but omitted any reference to Section 39(1)(e)(i), of the LCO, it shows that Section 39(1)(e)(i) was not considered by the Government as advancing the aim of maintaining “public trust and confidence in the LegCo and the character, honesty and personal integrity of its Members” referred to in §2.06 of the Consultation Paper. In my view, this forensic point has no merits for two reasons:

(1)     The question of whether a measure which restricts some fundamental right is lawful is a question of law for the court to decide.  The question is not whether the decision-maker had properly considered whether the measure satisfied the 4-step proportionality test, or thought that the measure was lawful (see Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420, at §§88-90).  When considering the lawfulness of an impugned measure, the court ought to consider the legitimate aim(s) advanced by the decision-maker to justify it, and is not restricted to a consideration of the original aim(s) underlying the measure at the time when it was promulgated.

(2)     In any event, §§2.06 and 2.07 explain the Government’s thinking as to why, in order to maintain public trust and confidence in the Legislative Council, a person who has been sentenced to imprisonment by a court of law should not be regarded as a suitable candidate for the important office of the Legislative Council at least until the sentence has been fully served, and this concern may be particularly strong as regards a person who has been convicted of certain offences (such as offences relating to corrupt or illegal conduct or bribery or election-related offences) which, by their nature, cast serious questions over the credibility and integrity of the person in question.  Those passages (and the two footnotes) cannot, in my view, be read as meaning that the Government considers that Section 39(1)(e)(i) of the LCO does not, or cannot, advance the Public Confidence Aim, still less that as a matter of fact it does not, or cannot, advance such aim.

47.Second, Mr Pun argues that (i) to qualify as a legitimate aim, there must be shown a “genuine need” for the measure under challenge (relying on what Li CJ said in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335, at §20(1)), and (ii) there is no genuine need for the Impugned Measure because, as recognised by Johnson Lam J in Wong Hin Wai, at §§90 and 97, the suitability of a candidate should primarily be left to the voters.  Yau Yuk Lung concerned a case of discrimination (namely, homosexual buggery otherwise than in private was an offence, but heterosexuals were not subject to comparable criminal liability), and the question before the Court of Final Appeal was whether the differential treatment could be justified.  It was in that context that the Chief Justice said at §20(1): “The difference in treatment must pursue a legitimate aim. For any aim to be legitimate, a genuine need for such difference must be established”.  In my view, there is a conceptual difference between (i) the question of whether an aim is a legitimate one, and (ii) the question of whether a measure which has been put in place is in fact needed or required for the purpose of advancing that aim.  The former is largely a question of value considered in the light of the existing legal and constitutional system in a jurisdiction, while the latter is more relevant to the questions of “rational connection” (step 2) and “no more than necessary” (step 3) in the proportionality analysis.  In any event, even if one were to apply the statement of principle by the Chief Justice to the present situation and asks whether there is a “genuine need” for the Impugned Measure for the purpose of advancing the Public Confidence Aim, I do not read anything that was said by the learned Judge in Wong Hin Wai as supporting the view that there is no need, or genuine need, for any rule which restricts a person who has been convicted of a criminal offence and given a sentence of imprisonment by the court for the offence from being nominated as a candidate at an election, or elected, as a member of the Legislative Council or a District Council or as a Rural Representative.  That issue was simply not before the learned Judge, who was concerned with a different restriction, namely, whether any convicted person subject to an unserved sentence should be permitted to run in a Legislative Council election.  Plainly, it must be open to the law to provide that a person who has convicted of a serious criminal offence should not be permitted to stand in an election, or be elected to an important public office, for a specified period of time.  The acceptability of the Sentence Threshold of 3 months and/or Disqualification Period of 5 years are matters to be considered under step 3 (no more than necessary) in the proportionality analysis.

48.Third, Mr Pun argues that the Impugned Measure should not be applied to the election of District Council members and Rural Representatives on the ground, adopting certain views expressed by the Hong Kong Bar Association, that “it may be justified to put in place more relaxed disqualification provisions for these electoral institutions than for LegCo, taking account of the functions and duties of these electoral institutions and their more intimate connections with the community (and hence greater participation from willing members of the public should be enabled and encouraged)”.

49.There can be no dispute about the need to maintain public trust and confidence in the Legislative Council, bearing in mind the important functions conferred on it by the Basic Law.  In particular, under BL 73, the Legislative Council shall exercise, inter alia, the following powers and functions - (i) to enact, amend, or repeal laws, (ii) to examine and approve budgets introduced by the government, (iii) to approve taxation and public expenditure, (iv) to receive and debate the policy addresses of the Chief Executive, (v) to raise questions on the work of the government, (vi) to debate any issue concerning public interests; (vii) to endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court, and (viii) to receive and handle complaints from Hong Kong residents.

50.While the functions of District Councils and Rural Representatives are obviously less important when compared to the Legislative Council, their functions should not be belittled.  In so far as District Councils are concerned, their functions are set out in Section 61 of the DCO, namely:

(1)     to advise the Government -

(a)     on matters affecting the well-being of the people in the District;

(b)     on the provision and use of public facilities and services within the District;

(c)     on the adequacy and priorities of Government programmes for the District;

(d)     on the use of public funds allocated to the District for local public works and community activities; and

(2)     where funds are made available for the purpose, to undertake -

(a)     environmental improvements within the District;

(b)     the promotion of recreational and cultural activities within the District; and

(c)     community activities within the District.

51.In so far as Resident Representatives are concerned, under Section 5(3) of the RREO, the function of a Resident Representative for an Existing Village is to reflect views on the affairs of the Village on behalf of the residents of the Village (except any affair relating to the lawful traditional rights and interests of indigenous inhabitants).

52.The importance of the offices of District Council and Rural Representative lies not just in their functions, but also in the recognition that holders of those offices are representatives chosen by the public.  It is also significant to take into account the fact that the offices of District Council and Rural Representative are weaved into the overall political structure of the HKSAR.  In so far as District Councils are concerned:

(1)     Under the Chief Executive Election Ordinance (Cap 569) (“the CEEO”), the Election Committee for the election of the Chief Executive of the HKSAR consists of 1,200 members representing 4 sectors (each with 300 members), of which 57 are elected members of Hong Kong and Kowloon District Councils and 60 are elected members of the New Territories District Councils under the “Fourth Sector”.

(2)     Under the LCO, a total of 6 members of the Legislative Council are returned from elections in (i) the District Council (First) Functional Constituency (1 member), and (ii) the District Council (Second) Functional Constituency (5 members).

53.In so far as Resident Representatives are concerned:

(1)     Under 61(1) of the RREO, a Resident Representative for an Existing Village is, by virtue of such position, made a member of the Rural Committee (鄉事委員會).

(2)     Members of Rural Committees elect their Chairmen and Vice-Chairmen among themselves.

(3)     Under the Heung Yee Kuk Ordinance (Cap 1097) -

(a)     the Chairmen and Vice-Chairmen of Rural Committees are Ex Officio Councillors of the Full Council of Heung Yee Kuk (s 3(2)(a)(i));

(b)     up to 7 Special Councillors (out of a maximum of 21) of the Full Council of Heung Yee Kuk are elected by the Ex Officio Councillors of each of 3 districts of Tai Po, Yuen Long and Southern District from among Rural Representatives (or such other persons as may be approved by the Secretary for Home Affairs) (s 3(2)(b));

(c)     the Chairmen of Rural Committees are Ex Officio Members of the Executive Committee of Heung Yee Kuk (s 4(2)(a)(i));

(d)     all Special Councillors and Vice-Chairmen of Rural Committees are eligible for election as Ordinary Members of the Executive Committee (paragraph 4 of Schedule 1).

(4)     Under s 9(1)(c) of the DCO, the Chairman of each Rural Committee shall be an ex officio member of a District Council for a District in which there is one or more Rural Committees.

(5)     Under 20A of the LCO, the Heung Yee Kuk functional constituency (which returns 1 member to the Legislative Council) is composed of the Chairman and Vice-Chairmen of Heung Yee Kuk and the Ex Officio, Special and Co-opted Councillors of the Full Council of Heung Yee Kuk.

(6)     Under the CEEO, the Heung Yee Kuk Subsector of the Fourth Sector of the Election Committee is constituted by the Chairman and Vice-Chairman of Heung Yee Kuk and the Ex-Officio, Special and Co-opted Councillors of the Full Council of Yeung Ye Kuk, and returns 26 members to the Election Committee.

54.The Hong Kong Bar Association’s view was considered and rejected by the Government in LC Paper No CB(2)267/14-15(03) dated November 2014 prepared by the Government reporting on the results of the public consultation carried out pursuant to the Consultation Paper (“the Consultation Report”):

“[4] As mentioned in the Consultation Paper, the disqualification provisions in the legislative regime aim to serve three objectives, namely, maintaining public confidence in the LegCo; ensuring the proper operation of the LegCo; and maintaining public confidence in the electoral process…

[18] On the initial recommendation of making corresponding changes to the relevant provisions in the DCO and the RREO on disqualifying persons from being nominated as a candidate and from being elected in paragraph 14(e) above, HKBA considers that it may be justified to put in place more relaxed disqualification provisions for these electoral institutions than for LegCo, taking account of the functions and duties of these electoral institutions and their more intimate connections with the community (hence greater participation from willing members of the public should be enabled and encouraged).

[19]  We consider that whilst DC members and Rural Representatives do not assume the same constitutional role of a member of the Legislative Council, they nevertheless still perform an important role in the public administration framework in Hong Kong, and in advising the Government on district administration, rural and other affairs.  Hence, we consider that the three objectives in paragraph 4 above should also apply to the elections of DC members and Rural Representatives, and our initial recommendation should be maintained.”

Taking into account the matters mentioned in §§50 to 53 above, the Government is, I believe, entitled to come to those views.

55.In all, I consider that the Public Confidence Aim is a legitimate aim not only in relation to the election of Legislative Council Members, but also in relation to the election of District Council members and Rural Representatives.

RATIONAL CONNECTION

56.Whether a measure is rationally connected with advancing an aim is essentially a matter of logic and common sense.  In Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, at §92, Lord Sumption JSC referred to the following statement of Wilson J in Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, at 291 -

“The Oakes inquiry into ‘rational connection’ between objectives and means to attain them requires nothing more than showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt”,

and added the following -

“The words ‘furthered by’ point towards a causal test: a measure is rationally connected to its objective if its implementation can reasonably be expected to contribute towards the achievement of that objective…”

57.It is clear that the Impugned Measure, which disqualifies persons who are or may be unsuitable to occupy the offices of the Legislative Council, District Council and Rural Representative from being elected to such offices, is rationally connected with advancing the Public Confidence Aim, in the sense that it would logically be expected to contribute towards the achievement of that aim.

58.Mr Pun has raised a few points to contend that there is a lack of rational connection between the Impugned Measure and the Public Confidence Aim.  First, he again relies on the observation of Johnson Lam J in Wong Hin Wai and argues that the suitability of a candidate should be left to the voters, and points to the “blanket and automatic disqualification” of persons sentenced to imprisonment for a term exceeding three months “without regard to the nature of the offence”[5] imposed by the Impugned Measure which, it is said, would deprive voters of the opportunity to “make their own assessments as to the suitability of a candidate” and unduly “restrict the range of choice of good candidates from coming forward”[6].  In my view, while these matters may be relevant to the question of whether the Impugned Measure is more than necessary to advance the Public Confidence Aim (step 3), they do not go the question of rational connection between the Impugned Measure and the Public Confidence Aim.

59.In Harvey v New Brunswisk (AG) [1996] 2 SCR 876, the applicant, who had been elected to the Legislative Assembly, was later convicted of the offence of committing an illegal practice under the Elections Act 1973.  Section 119(c) of that Act provided that any person who was convicted of having committed a corrupt or illegal practice under the Act shall, during the 5 years next after the date of the conviction, be disqualified from and be incapable of being elected to or sitting in the Legislative Assembly and, if at such date he had been elected to the Legislative Assembly, his seat would be vacated from the time of such conviction.  The applicant brought a constitutional challenge to the validity of Section 119(c) on (inter alia) the ground that there was an absence of rational connection between the means employed in Section 119(c) and the aim of preserving the integrity of the electoral process, arguing that the mandatory disqualification amounted to a blanket restriction and was arbitrary.  Dismissing the challenge, La Forest J (delivering the judgment also on behalf of 5 other members of the Canadian Supreme Court) referred to the statement of principle by Wilson J in Lavigne, ante, and continued as follow (at 903-904):

“… The requirement that an elected MLA vacate his seat on being convicted of a corrupt or illegal election offence logically furthers the objective of preserving the integrity of the election process. It is a straightforward method whereby the electorate is assured that the voting process will be fair…

I am also of the view that the five-year disqualification is rationally connected to the objective. A mandatory disqualification acts as a strong deterrent and helps to promote confidence in the electoral system. Again, the appellant’s contention that the disqualification displays paternalism on the part of the legislature misses the point. The provision is meant to protect the public not only from a particular offender, but from offenders in general. In other words the legislature is aiming at both general and specific deterrence.

I would also reject the appellant’s contention that the operation of s.119(c) is arbitrary because it is mandatory in nature and applies to everyone convicted of a corrupt or illegal practice. While the section is mandatory, it only comes into play when an individual has been convicted of one of a number of prescribed offences each of which involves an attack on the integrity of the democratic process, albeit some may be more serious than others. If a Member of the Legislative Assembly is convicted of any of these offences the whole of the electoral process may be brought into disrepute. The argument that the penalty is arbitrary is also weakened by the fact that it is only imposed after a conviction in a court of law. Finally the fact that the trial judge has no discretion with respect to this part of the penalty is no more arbitrary than any minimum sentence found in the Criminal Code or any other penal statute.

I conclude, therefore, that s.119(c) is rationally connected to the objective of preserving the integrity of the electoral process and is not arbitrary in that it applies only to a specified group of individuals who are charged with and convicted of specified offences.”

60.Although Harvey concerned a disqualification provision which targeted convictions for offences relating to corrupt or illegal election practices, it seems to me that the reasoning for concluding that the provision was rationally connected with (because it logically furthered the objective of) the aim of preserving the integrity of the electoral process is equally applicable to present case where the disqualification targets convictions for criminal offences generally resulting in prison sentences exceeding 3 months.  The fact that the disqualification provision in Harvey was mandatory (or automatic) did not negate its rational connection with the aim of preserving the integrity of the electoral process.  Similarly, the fact that the Impugned Measure is mandatory does not, in my view, affect its rational connection with the Public Confidence Aim.

61.Second, Mr Pun relies on the fact that the disqualification under the Impugned Provisions is not imposed by a court of law after taking into account the nature and seriousness of the relevant offence as well as the particular circumstances of the individual concerned.  This aspect was also considered in the above-quoted judgment of La Forest J in Harvey, although I would not regard the disqualification as a penalty, or an additional penalty, imposed on the convicted person for his offence.  For my part, I do not see the fact that the sentencing court has no discretion on whether to impose a relevant disqualification order on the convicted person affects the consideration of whether the Impugned Measure is rationally connected with the Public Confidence Aim.

62.Third, Mr Pun argues that the lack of rational connection can be seen when the Impugned Measure is applied in the following specific situation:

(1)     If a person (X) was convicted of an offence which is much more serious in nature than that of the Applicant (eg riot under Section 19 of the Public Order Ordinance) in August 2015 and sentenced to seven years’ imprisonment, and would be released (taking into account the one-third remission for good behaviour) shortly before the nomination period for the LegCo general election to be held in around September 2020, he would not be caught by Section 39(1)(e)(i) of the LCO.

(2)     In contrast, the Applicant would be barred by Section 39(1)(e)(i) of the LCO from standing in the said LegCo general election, despite the fact that (a) his convictions are much less serious in nature, (b) his sentence of eight months’ imprisonment is much lighter, and (c) both persons would have fully served their sentence but the Applicant was released earlier.

63.I do not accept this argument of Mr Pun.  Although X’s offence may be more serious than those for which the Applicant was convicted and X was released later than the Applicant, X’s conviction is more distant in time.  The positions of the Applicant and X are not truly analogous.  Since no one is suggesting that a person who has been convicted of a criminal offence and given a prison sentence exceeding 3 months should forever be barred from standing in any future elections, the setting of an appropriate Disqualification Period to enable that person to demonstrate that he has sufficiently reformed himself by not committing any further serious criminal offence (resulting in another prison sentence exceeding 3 months) during the specified period, is, I consider, reasonable.  For this purpose, the drawing of a bright line in respect of the Disqualification Period, which promotes legal certainty and provides a workable rule, is not objectionable in principle (see Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, at §73 per Ma CJ).  The fact that X, who may, at first sight, appear to be less suitable as a candidate in the forthcoming Legislative Council election than the Applicant, is permitted to stand in the election while the Applicant is not, is simply a consequence of the application of the bright line regarding the Disqualification Period as drawn by the Government, but does not show that the Impugned Measure is not rationally connected with advancing the Public Confidence Aim.

NO MORE THAN NECESSARY

64.The first issue to be determined is the appropriate standard of review that should be applied in this case.  In Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, Ribeiro PJ gave the following guidance on the determination of this issue:

“[139] The ‘manifest’ standard has been used in cases where the Court recognizes that the originator of the impugned measure is better placed to assess the appropriate means to advance the legitimate aim espoused. This has occurred in cases involving implementation of the legislature’s or executive’s political, social or economic policies but the principle is not confined to such cases.

[140]    The location of the standard in the spectrum of reasonableness depends on many factors relating principally to the significance and degree of interference with the right; the identity of the decision-maker; and the nature and features of the encroaching measure relevant to setting the margin of discretion.”

65.In Junior Police Officers’ Association of the Hong Kong Police Force v Electoral Affairs Commission [2020] HKCA 352, at §64, the Court of Appeal affirmed that this exercise involved a “holistic assessment”.

66.I accept that the rights to vote and stand for election and to participate in public life protected by BL 26 and BOR 21 are important rights (see Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, at §164 per Andrew Cheung J (as he then was); Wong Hin Wai, ante, at §66).  I also bear in mind the fact that the disqualification imposed by the Impugned Measure lasts for a period of 5 years from the date of the relevant conviction, which means that a person may be disqualified for 2 terms of office of the Legislative Council, District Council or Rural Representative.  Nevertheless, I am of the view that the appropriate standard of review to be adopted in the present case should be towards the lower end of the continuous spectrum of reasonable necessity (ie the “manifestly without reasonable foundation” standard) for the following reasons:

(1)     This case concerns the validity of an aspect of the electoral laws relating to the qualification criteria for a candidate which are inevitably much affected by political or policy considerations and, as can be seen from the above discussion concerning the legislative history of the Impugned Provisions, have been the subject of active political debate. Plainly, the Legislature is better placed than the Judiciary to assess who may be suitable or unsuitable to fill the offices of Legislative Council or District Council or Rural Representative, and the appropriate means to advance the Public Confidence Aim (see Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353, at §§42 and 45 per Ma CJ; Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735, at §45 per Ma CJ; Wong Chi Fung v Secretary for Justice [2016] 3 HKLRD 835, at §§25-26 and 42-43 per Au J (as he then was)).

(2)     BL 68, read together with paragraph 2 of Part I of Annex II to the Basic Law, expressly provides that the method for forming the Legislative Council, including the “election methods”, shall be specified by an electoral law introduced by the Government and passed by the Legislative Council.

(3)     The restriction on a person standing for election is imposed only after he has been duly convicted of an offence of a degree of seriousness reflected by a prison sentence for a term exceeding 3 months.  In the present case, the court is concerned with convictions in Hong Kong where persons charged with criminal offence are protected by BOR 10 and 11 and common law principles, including the right to a fair and public hearing, the presumption of innocence, the requirement that guilt must be proved beyond reasonable doubt, the right to be tried in his presence and to defend himself through legal assistance of his own choosing, the right not to be compelled to testify against himself or to confess guilt, etc.

(4)     The maintenance of public trust and confidence in the public offices of the Legislative Council, District Council and Rural Representative is itself a matter of considerable public importance.

67.The Applicant has referred the court to a Report by the Congress of Local and Regional Authorities of the Council of Europe on “Criteria for standing in local and regional elections” dated 26 March 2015 (“the Report”), which sets out different election-disqualification criteria being applicable to persons who have been convicted of criminal offences in many European countries[7]. It is not, I consider, fruitful to compare the regimes applicable in those countries to the one in Hong Kong because, as noted by the Congress of Local and Regional Authorities of the Council of Europe, they merely illustrate “differences in the perception of the link between seriousness of the criminal offence and disqualification from standing for an election, even where regarded as local”[8].

68.Mr Pun places particular emphasis on the following statement in §72 of the Report:

“This question is plainly one of the most sensitive as it can result in denial of the right to stand for reasons not directly related to the election. It may indeed by very tempting for a political power to strip opponents of this right by invoking grounds derived from criminal law, in the knowledge that the ‘opposition’ can quite easily be incriminated on the pretext of unworthy or ‘antisocial’ conduct.”

69.The cogency of the concerned expressed by the Congress of Local and Regional Authorities of the Council of Europe must, however, be assessed in the light of the particular circumstances of and in Hong Kong.  The Impugned Provisions (and their predecessors) have been on our statute books since the early 1980s.  In any case where the disqualification criteria are satisfied, the disqualification is “automatic” and is not dependent on any further application by the Government.  The present case concerns convictions by Hong Kong courts.  As earlier mentioned, a person charged with a criminal offence in Hong Kong is generally protected by BOR 10 and 11 and common law principles.  Finally, a person is disqualified by the Impugned Provisions only because he has committed a crime and his conduct is determined by the court to merit a prison sentence exceeding 3 months.  It is, ultimately, a matter entirely within the control of any person whether he would be disqualified by the Impugned Provisions.

70.Mr Pun argues that the Impugned Measure is more than necessary for the purpose of advancing the Public Confidence Aim, because of:

(1)     the blanket and automatic nature of the Impugned Measure without regard to the nature of the offence or the particular circumstances of the individual concerned or the fact that the person may have fully served his sentence;

(2)     the low Sentence Threshold of 3 months; and

(3)     the long Disqualification Period of 5 years, which may span 2 consecutive terms of the Legislative Council, District Council or Rural Representative.

71.In support of this argument, Mr Pun also says that:

(1)     the Impugned Measure deprives the voters of the opportunity to make their own assessments as to the suitability of a candidate and unduly restricts the range of choice of good candidates from coming forward, thereby inhibiting the free expression of the will of the electors, particularly when there are already other provisions which address the aim of “maintaining public confidence”;

(2)     the disqualification is not the subject of any specific court decision;

(3)     the criteria for candidates should be less stringent than for members (relying on the observation of Johnson Lam J in Wong Hin Wai, ante, at §90);

(4)     members of the Legislative Council or District Councils or Rural Representatives who are convicted and sentenced to imprisonment for a term exceeding 3 months during their term of office are not subject to any automatic and/or blanket disqualification;

(5)     District Council members and Rural Representatives do not assume the same constitutional role of members of the Legislative Council, and thus less stringent disqualification criteria should be applied to persons seeking to run at District Council or Rural Representative elections.

72.It is, in my view, plainly open to the Legislature to prescribe that a person who has been convicted of a criminal offence and sentenced to imprisonment for a term exceeding a specified period should not be permitted to be nominated as a candidate at an election, or to be elected as a member of the Legislative Council or a District Council or as a Rural Representative for a certain period of time after the relevant conviction.  The question is whether the Sentence Threshold of 3 months and the Disqualification Period of 5 years are justified.  The drawing of bright lines regarding the Sentence Threshold and Disqualification Period is not, as earlier mentioned, objectionable.  These are not matters of exact science, but are primarily matters of value judgment.  Unless the lines as drawn are plainly unreasonable, the court should respect of the judgment of the legislature which is better placed than the court to assess where the lines should be drawn.

73.In respect of the specific matters raised by Mr Pun referred to in §71 above, my views are as follows:

(1)     The matter referred to in §71(1) above is essentially a matter of policy choice for the Legislature.  Although there are other statutory provisions which address the aim of “maintaining public confidence”, eg Section 39(1)(b), (c), (d) and (e)(ii) to (iv), and (i) of the LCO and similar provisions of the DCO and RREO, they relate to different situations and do not cover the specific situation under the Impugned Provisions, ie a person who has been convicted of any criminal offence and given a prison sentence exceeding 3 months for that offence.

(2)     In respect of the matter referred to in §71(2) above, I am not satisfied that it is necessarily a better system for the issue of disqualification to be determined by the court.  While the court can take into account the specific circumstances of the convicted person and the offence that he has committed when deciding whether a disqualification order should be made against that person, there will be an increased scope for disputes and possible appeals and a corresponding reduction of legal certainty.  In any event, the issue here is not whether judicial determination of a convicted person’s disqualification is a better regime.  The issue is whether the current regime is lawful or not.

(3)     In respect of the matters referred to in §71(3) and (4) above, it seems to me that the positions of candidates and incumbent members are not analogous.  Candidates are hopefuls while incumbent members are persons with vested rights and interests.  I do not consider that the disqualification criteria for candidates must necessarily be less stringent than for incumbent members, and I do not read the judgment of Johnson Lam J (as he then was) in Wing Hin Wai, ante, at §90, as laying down any inflexible rule or principle of law to that effect.  Neither do I see why it would not be lawful for the Legislature to prescribe different disqualification criteria (if any) for candidates and incumbent members.

(4)     Lastly, in respect of the matter referred to in §71(5) above, I have already explained in §§50 to 53 above the important public functions discharged by District Council members and Rural Representatives.  It is, in my view, open to the Legislature to adopt the same disqualification criteria for persons seeking to run for the office of Legislative Council, District Council and Rural Representative.

74.In all, I am of the view that the Impugned Measure is not manifestly without reasonable foundation.  I should add that I would reach the same conclusion even if the standard of review should be the higher one of “no more than reasonably necessary”.

REASONABLE BALANCE

75.As pointed out by Ribeiro PJ at §73 of Hysan, ante:

“in the great majority of cases, its application would not invalidate a restriction which has satisfied the requirements of the first three stages of the inquiry. One would hope and expect that most laws and governmental decisions at the sub-constitutional level internally reflect a reasonable balance between the public interest pursued by such laws and the rights of individuals or groups negatively affected by those laws. In such cases, where the law passes the first three tests, it would be unlikely to fail the test of proportionality ‘stricto sensu’ (in the narrow, overall sense) at the fourth stage. But one may exceptionally be faced with a law whose content is such that its application produces extremely unbalanced and unfair results, oppressively imposing excessive burdens on the individuals affected.” [emphasis added]

76.Whether the Impugned Measure can pass step 4 requires the court to make, ultimately, a “value judgment” as to whether it operates on the Applicant and others in a similar situation “with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question” (see §78 of Hysan).  Taking into account the matters mentioned in §66(3) and (4) above (and, in relation to the Applicant specifically, the seriousness of the offences for which he was convicted as recited in various judgments[9]), I am not persuaded that the pursuit of the societal interest by the Impugned Measure can be said to result in an unacceptably harsh burden on them, notwithstanding the importance of the rights being restricted.

DISPOSITION

77.The application for leave to apply for judicial review is granted (with an extension of time to apply for leave, if necessary) on the basis that the intended application for judicial review is reasonably arguable and has a realistic prospect of success.  However, the substantive application for judicial review is dismissed upon full consideration of the merits.

78.The Applicant shall pay the costs of the Putative Respondent, to be taxed if not agreed, with certificate for 2 counsel.

Mr Hectar Pun, SC and Mr Anson Wong Yu Yat, instructed by Ho, Tse, Wai & Partners, for the Applicant

Mr Benjamin Yu, SC and Mr Mike Lui, instructed by Department of Justice, for the Putative Respondent