Tan Guoyuan v. Chief Executive of the Hong Kong Special Administrative Region and Another

HCAL 1583/2020

[2020] HKCFI 1823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1583 OF 2020

________________________

________________________

________________

Before: Hon Chow J in Chambers

Date of Decision: 6 August 2020

___________________

D E C I S I O N

___________________

1.In this application for leave to apply for judicial review, the Applicant seeks to challenge the decision of the Chief Executive (“the CE”) and the Secretary for Constitutional and Mainland Affairs (“the Secretary”) “to refuse to postpone the 2020 Legislative Council General Election scheduled to take place on 6^th September 2020 (‘LegCo Election’), as contained in their letter dated 28^th July 2020” (“the Decision”).

2.The Applicant is 78 years of age.  He is a Hong Kong permanent resident living in Mainland China.  Apparently, he is currently in Hong Kong.  According to the Applicant, he would be subject to the quarantine measures in place in Hong Kong arising from the outbreak of COVID-19 should he return to Mainland China and later come back to Hong Kong in order to vote in the LegCo Election.  He is also concerned that he may be exposed to the risk of COVID-19 while queuing up to vote in the LegCo Election.

3.On 28 July 2020, the Applicant sent a letter to the CE requesting for a postponement of the LegCo Election “for as long as the law allows until the public health situation is such that all the measures made for combating the pandemic could be lifted.”  He also sent a letter to the Secretary on 28 July 2020 requesting for a postponement of the LegCo Election in view of the COVID-19 pandemic.

4.The Secretary replied in a letter dated 28 July 2020 stating that the Government and the Electoral Affairs Commission were proactively taking steps to ensure that the LegCo Election could take place on 6 September 2020 in a fair, open, honest and safe manner:

“十分感謝你就今年立法會換屆所提供的意見及建議。特區政府現正密切留意疫情的最新發展情況, 並因應不同情況制定預案, 以確保市民在是次選舉中能行使其公民選舉權利, 同時亦能顧及公共衛生安全考慮, 避免疫情進一步擴散。目前, 特區政府及選舉管理委員會正積極推進選舉各相關工作, 致力令九月六日舉行的立法會選舉能夠在公平、公開、誠實以及安全的情況下進行。”

5.On 29 July 2020, the Applicant made the present application for leave to apply for judicial review of the Decision on the ground of Wednesbury unreasonableness.  Under the “Grounds of Review” set out in the Form 86, the following is stated:

“[14] The Decision is unreasonable in the sense that no reasonable decision-maker would have made such a decision, in view of the Covid-19 Pandemic in Hong Kong.

[15] The Putative Respondents, in reaching the Decision, has failed to take into account relevant consideration which no reasonable decision maker would have failed to take into account.

a) The recent ‘3^rd Wave’ outbreak with a record high of consistently over 100 confirmed cases daily.

b) The constitutional guaranteed right to vote under Article 26 of the Basic Law, which provides that ‘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’.

c) The fact that the Quarantine Measures would force the Applicant to either not travel back to his home in Mainland China for the 14 days prior to 6^th September 2020, or to give up voting.

d) The fact that in order to exercise the Applicant’s fundamental right to vote, he would be subjected to the risk of contracting the Covid-19 virus during the long waiting time for queuing up to vote, as exemplified in the District Council Election 2019.

e) The unfairness caused by the above when a large number of voters would be deterred from voting, or would be prevented from voting as a result of the Quarantine Measures and other related travelling restrictions.”

DISCUSSION

6.The present application has been overtaken by event, in that the Government has now “reversed” the Decision, and decided to postpone the LegCo Election by one year.  There would thus be no purpose in granting leave to the Applicant to apply for judicial review of the Decision.

7.I would, in any event, not have been prepared to grant leave to apply for judicial review.  The letter from the Secretary dated 28 July 2020 does not show that a final decision had been made by the Government whether to postpone the LegCo Election.  Generally, judicial review only lies against a final decision made which carries legal consequences.  The application in the present case is premature.

DISPOSITION

8.The application for leave to apply for judicial review is dismissed.

Messrs Peter K H Wong & Co., for the Applicant