Wong Chi Fung v. Secretary for Justice and Another

HCAL 346/2020

[2020] HKCFI 2444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 346 OF 2020

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D E C I S I O N

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SUMMARY

1.The principal issue which arises for determination in this application for leave to apply for judicial review is a procedural one, namely, whether it is open to the Applicant to challenge the decision of the 2^nd Putative Respondent (“the Returning Officer”) that he was not validly nominated as a candidate for the 2019 District Council Ordinary Election - South Horizons West Constituency (“the SHWC Election”) by way of judicial review.

2.Following a consistent line of authorities beginning with the judgment of the Court of Appeal in Re Lau San Ching [1995] 2 HKLR 95, it is clear that the Applicant ought to have commenced proceedings by way of election petition, instead of judicial review.  The Applicant has chosen the wrong legal procedure to challenge the decision of the Returning Officer.  The application for leave to apply for judicial review therefore stands to be dismissed.

BACKGROUND FACTS

3.For the purpose of this decision, the following brief summary of the background facts should suffice.

4.On 15 March 2019, the Chief Executive gave notice in the Gazette that she had determined 24 November 2019 as the date specified for holding the Sixth District Council Ordinary Election pursuant to s 27(3) of the District Councils Ordinance, Cap 547 (“the DCO”). The South Horizons West Constituency was one of the constituencies to return a member to the Southern District Council.  The nomination period for the SHWC Election ran from 4 to 17 October 2019.

5.On 4 October 2019, the Applicant submitted, inter alia, (i) a Nomination Form in accordance with s 34(1)(b) of the DCO, which contained a duly signed declaration (“the Declaration”) to the effect that he would uphold the Basic Law and pledge allegiance to the HKSAR, and (ii) a duly signed Confirmation Form prepared by the Electoral Affairs Commission, with a view to standing as a candidate for the SHWC Election.

6.The Returning Officer for the South Horizons West Constituency made inquiries of the Applicant on various matters on 14, 16 and 26 October 2019, and the Applicant answered those inquiries on 15, 17 and 26 October 2019.

7.On 29 October 2019, the Returning Officer decided that the Applicant’s nomination was invalid (“the Decision”). Her reasons for the Decision were set out in a written document attached to the Notice of Decision entitled “Reasons for Ruling WONG Chi Fung’s Nomination Invalid” (“the Reasons”).  It is not necessary to set out those reasons for the purpose of this decision, save to note the conclusion of the Returning Officer at §23 of the Reasons, namely, that she was not satisfied that the Applicant had duly complied with s 34(1)(b) of the DCO, which provides that:

“A person is not validly nominated as a candidate for an election unless -

(b) the nomination form includes or is accompanied by a declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.”

8.The SHWC Election took place on 24 November 2019, with two candidates contesting for the seat in the South Horizons West Constituency.  Mr Kelvin Lam, said to be the Applicant’s “Plan B”, received 4,146 out of a total of 7,382 valid votes, and was declared to be duly elected in the SHWC Election.

9.By a Form 86 dated 29 January 2020 but filed on 9 March 2020 (due to the closure of the High Court Registry in view of the outbreak of COVID-19 in Hong Kong), the Applicant made the present application for leave to apply for judicial review.  7 grounds of judicial review are advanced in the Form 86, at §51, as follows:

In respect of s 34(1)(b) of the DCO

(1)  Ground 1: on the proper interpretation of s 34(1)(b), the requirement thereunder is fully complied with by the candidate signing the Declaration;

(2)  Ground 2: alternatively, s 34(1)(b) unlawfully interferes with Hong Kong residents’ right to hold opinion without interference, right to stand for election, right to freedom of expression, and right against discriminatory treatment based on a person’s political opinions, contrary to BL 25, 26, 27 and 39 and HKBOR 1, 15, 16, 18, 21 and 22;

In respect of the Decision

(3)  Ground 3: the Decision was tainted by errors of law as to the proper interpretation of s 34(1)(b);

(4)  Ground 4: further or alternatively, the Returning Officer acted ultra vires of ss 34(1)(b) and 36(1) of the DCO, and rule 12(1) of the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation, Cap 541F;

(5)  Ground 5: further or alternatively, the Decision was tainted by procedural unfairness and/or breach of natural justice due to the lack of a clear policy or guidance as to the requirements for nomination;

(6)  Ground 6: further or alternatively, the Returning Officer took into account irrelevant considerations, and/or the Decision was irrational and/or Wednesbury unreasonable;

(7)  Ground 7: further or alternatively, the Returning Officer erred in her conclusion that the Applicant did not have a genuine intention to uphold the Basic Law and pledge allegiance to the HKSAR.

10.At §7 of the Form 86, it is stated that -

“The Applicant’s primary objective of the present application for judicial review is not to challenge or question the SHWC Election or the results thereof. Rather, it is to vindicate his constitutionally protected rights, as well as to challenge and/or clarify, in the light of those rights and for the purposes of future elections, the law as to the requirements for nomination and the powers of the RO as part of the electoral process under the DCO and the EAC Regulation.”

11.It is apparently for this reason that the Applicant has decided to proceed by way of judicial review instead of election petition.  The issue immediately arises as to whether the court’s jurisdiction to entertain an application for judicial review in the present case is precluded by s 49(2) of the DCO.  Section 49 states as follows:

“(1) An election to return an elected member may be questioned only on the following grounds -

(a) the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541) to have been elected as an elected member at the election was not duly elected because -

(i) the person was ineligible to be, or was disqualified from being, a candidate at the election; or …

(iv) material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or

…

(2) An election to return an elected member may be questioned only by an election petition lodged under section 50.

(3) In this section -

election (選舉) includes nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer.”

12.Pausing here, it may be noted that s 49 of the DCO is modelled on s 61 of the Legislative Council Ordinance, Cap 542 (“the LCO”)[1], which relevantly states as follows:

“(1) An election to return a Member may be questioned only on the following grounds -

(a) the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541) to have been elected as a Member at the election was not duly elected because -

(i) the person was ineligible to be, or was disqualified from being, a candidate at the election; or …

(iv) material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or

…

(2) An election to return a Member may be questioned only by an election petition lodged under section 62.

(3) In this section -

election (選舉) includes nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer.”

13.In relation to this jurisdictional issue, it is said, at §44 of the Form 86, that the judgment of the Court of Appeal in Re Lau San Ching [1995] 2 HKLR 95, and the line of authorities following Lau San Ching should be distinguished because “most of them were concerned with applications for judicial review before polling took place”.

14.At §46 of the Form 86, the Applicant further contends that if the court should hold that s 49(2) and (3) of the DCO does categorically exclude all applications for judicial review regardless of its being post-election and without questioning the election itself, these provisions are inconsistent with BL 35 (right of access to the courts), and are therefore unconstitutional and of no effect.

15.On 23 March 2020, the court gave directions for an oral hearing of the application for leave to apply for judicial review.

RE LAU SAN CHING [1995] 2 HKLR 95

16.The critical question in the present application is whether it is permissible for the Applicant to challenge the Decision by way of judicial review, instead of election petition.  On the face of s 49(2) of the DCO, it would seem to be clear that the Applicant’s complaint in this case can only be ventilated in an election petition.  The wording of that subsection - “[a]n election to return an elected member may be questioned only by an election petition lodged under section 50” [emphasis added] - is mandatory.  There is also a formidable line of authorities starting with the judgment of the Court of Appeal in Re Lau San Ching which supports the proposition that a candidate seeking to challenge a decision of a returning officer that his nomination in a District Council election is invalid can only do so by presenting an election petition after the election, and the remedy of judicial review is excluded.

17.In Re Lau San Chin, the nominations of three candidates for the 1994 District Board elections were rejected by the returning officers concerned on the ground that they were not qualified for nomination due to a failure to meet the 10-year Hong Kong residency requirement.  The three candidates obtained leave from the High Court to apply for judicial review of the decisions, but the application for judicial review were dismissed by Mayo J (as he then was) on the ground that, having regard to s 30(2) of the Electoral Provisions Ordinance, Cap 367[2] and reg 9(7) of the Boundary and Election Commission (Electoral Procedure) (Geographical Constituencies) Regulations, the High Court had no jurisdiction to entertain the application for judicial review and that the only way whereby the candidates could challenge the decisions of the returning officers was by way of election petition presented after polling had taken place and the successful candidates had been declared.

18.Section 30 of the Electoral Provisions Ordinance stated as follows:

“(1) An election may be questioned by an election petition on -

(a) the ground that the person declared by the returning officer in accordance with regulations made under section 28 to have been elected in that election was not duly elected by reason of -

(i) his disqualification under section 19; or …

(iii) any material irregularity relating to that election or poll or count in respect of that election; or

(b) any other ground provided by any enactment whereon an election may be questioned.

(2) No election may be questioned on either of the grounds referred to in subsection (1) except by an election petition presented under section 31.”

19.Pausing here, it may be noted that s 30 of the Electoral Provisions Ordinance is similar in terms and effect to s 49 of the DCO, save that there was no provision equivalent to s 49(3) of the DCO (which defines the expression “election” to include nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer).

20.The three candidates’ appeal against the judgment of the Mayo J was dismissed by the Court of Appeal (constituted by Litton, Nazareth and Godfrey JJA, as they then were).  Litton JA held that the candidates’ complaint about material irregularity in the election process could only be ventilated in an election petition governed by the provisions of the Electoral Provisions Ordinance, and the jurisdiction of the High Court to entertain an application for judicial review of the returning officer’s decision was excluded.  The reasoning for that conclusion was as follows -

“Mr. Marshall, Q.C. submits that, having regard to the history of our electoral law, derived as it is from the law and practices of the United Kingdom, and to the statutory scheme itself, the intention of the legislature expressed in s. 30(2) is clear. It is to ensure that once the election process has begun it should not be interfered with in any way by suits of any kind brought by disgruntled candidates or electors; their redress is by the special procedure under the Ordinance itself, by presenting an election petition in the High Court under the provisions of s. 31. Miss Gladys Li Q.C. and Mr. Johannes Chan, for the appellants, argue that s. 30 does not cover the present situation as the appellants are not questioning the ‘election’. The election has not taken place. What they question is the decision of the returning officer that the appellants failed to qualify as candidates under s. 18(2) and that their nomination papers were therefore invalid.

As can be seen the argument focuses on the definition of ‘election’. Is it something that happens on polling day or is it, as Mr. Marshall argues, a process that begins long before polling day? The answer to this question lies in the statutory scheme itself.

…

It seems to me clear beyond argument that at the stage when the returning officer examines the nomination paper submitted to him under Reg. 9, the election as a process has begun. If reinforcement of this view be necessary, I would point to s. 30(1)(a)(iii) of the Ordinance which draws a distinction between the election and the poll; the latter takes place on what might loosely be called the election day and is part of the process of election. Further support for this view is given by s. 31 which deals specifically with the position of persons like the appellants who have been excluded from the list of nominated candidates. Plainly the appellants here would have the right to present an election petition, if they so wished, after polling. The words of s. 31 are wide enough to cover their cases. What they complain of in essence is a material irregularity in the election process. Their complaints, in my judgment, come plainly within the wording of s.30(1)(a)(iii). It follows that what they seek to impeach can only be done by an election petition presented under s.31. I have therefore come to the same conclusion as the judge in the court below, that the jurisdiction of the High Court to entertain the complaints in this case is in effect postponed to the period of two months after polling and is governed by the provisions of the Electoral Provisions Ordinance itself.” (pp 97-98)

21.Litton JA also expressed the view that permitting judicial review proceedings to be brought against a decision of a returning officer concerning the validity of a person’s nomination to stand as a candidate for an election would have the most “deleterious” effect on the election -

“Since the regulations have laid down time limits for the various stages for an election to proceed, any intermediate judicial proceeding could have unexpected and perhaps the most deleterious effect. Assume for instance that a High Court judge in judicial review proceedings upheld the decision of a returning officer and declared that the nomination paper is, as he had determined, invalid. The candidate is entitled to appeal to this court. Can this court be convened at short notice? If the appeal is allowed, is the election in the relevant constituency then to be postponed? What are the mechanisms for postponing an election in these circumstances? Who is to make the act of judgment to postpone? The Ordinance is silent on these matters. If there were somehow to be a postponement, what might the other candidates who have been canvassing for some time say about such a proceeding?” (p 99)

22.Nazareth JA delivered a concurring judgment, stating the following -

“I agree for the reasons given by my Lord Litton J.A. that the appeals must be dismissed. In particular, I subscribe fully to the view that s.30(2) of the Electoral Provisions Ordinance, Cap.367 extends to the entire election process, including nomination. This seems to me to be clear not only from the language of s.30(2) in its context, but to be put beyond doubt by the legislative scheme of the election process prescribed. The result must be preclusive so that judicial review is not available to question an election including the returning officer’s decision that a nomination paper is invalid.” (pp 101-102)

23.The third member of the Court of Appeal, Godfrey JA, held that the remedy of judicial review was not absolutely excluded, and the court retained a discretion to entertain an application for judicial review of the returning officer’s decision where compelling reasons existed for it to exercise such discretion.  However, the learned judge declined to do so on the facts and in the circumstances of that case.  Godfrey JA expressly his views in his usual succinct and forceful manner:

“I, too, would dismiss this appeal; but for reasons different from those given by the judge and by Litton, J.A. The judge decided that the remedy of judicial review was not available to any of these applicants. His view was that the law afforded them no remedy other than by way of election petition. That remedy is not available to them until after the election. It follows, if he is right, that there would be a period between the date when a candidate’s cause for grievance arises and the date of the election during which there could be no intervention by the court to correct some manifest illegality, irrationality or impropriety on the part of the returning officer, not even if justice and convenience required such intervention.

I recoil from this conclusion. In two recent cases in the United Kingdom (admittedly, under a different statutory framework from that which obtains in Hong Kong) the court was prepared to entertain, before the election was held, an application by the candidate for judicial review of a decision of a returning officer, and quite right, too. In my judgment, it would be unfortunate if the court here rules out this possibility altogether, and I cannot agree that s.30(2) of the Electoral Provisions Ordinance, Cap.367, which precludes any challenge to an election otherwise than by way of election petition, is intended to apply as well before as after the election.

But no doubt it will rarely be sensible, for practical reasons, to interfere with the course of the election. Once the election has been set in motion by notice published in the Gazette, an event which took place here on 1 August 1994, any intervention by the court before the date of the election would, I suspect, nearly always reduce the whole process, with its carefully crafted statutory timetable, to rubble. That is something which the court should refrain from doing unless very compelling reasons exist for its doing so. Since, after the election, the remedy by way of election petition will always be available to the aggrieved candidate, such compelling reasons are rarely likely to be found.

I turn to the present case. It seems to me this is a case in which there are cogent reasons for refusing these applicants the remedy of judicial review, not because it is unavailable, but because it would be wholly impracticable at this late stage of the electoral process to grant them the relief which they seek…

Although I apprehend that I differ from Mayo, J. and Litton, J.A. about the power of this court in a proper case to grant the remedy of judicial review before the election, I have no doubt that these are not cases for the exercise of that power.

Accordingly, in the exercise of the discretion which this court has, I would, in the result, uphold the decision of the judge, albeit for different reasons from those which he gave to justify his decision.” (pp 100-101)

24.The judgment of the Court of Appeal in Re Lau San Ching has since been followed in a consistent line of first instance decisions relating to different types of elections in Hong Kong.

25.In Re Tang Kai Tak, HCAL 120/2010 (19 November 2010), a case concerning an election of rural representative, Andrew Cheung J (as he then was) held that the effect of Re Lau San Ching was that the process of “election” covered the nomination stage (§26), and that an application for judicial review, insofar as nomination was concerned, should not be entertained whether under the majority view or under Godfrey JA’s minority view.  Pausing here, it may be noted that the Village Representative Election Ordinance, Cap 576 (“the VREO”), contains a provision corresponding to s 49 of the DCO.  Section 39 of the VREO provides, relevantly, as follows:

“(1) An election may be questioned only on the following grounds -

(a) the ground that the person declared by the Returning Officer concerned in accordance with the EAC Regulations to have been elected as a Rural Representative at the election was not duly elected because -

(i) the person was ineligible to be, or was disqualified from being, a candidate at the election; …

(iv) material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or

…

(2) An election may be questioned only by an election petition lodged under section 40.

(3) In this section, election (選舉) includes nomination proceedings and the decisions of the Returning Officer or any of the Assistant Returning Officer concerned.”

26.In Hans Richard Mahncke v Electoral Affairs Commission, HCAL 90/2012 (26 July 2012), Lam J (as he then was) applied Re Lau San Ching and held that an applicant who had reason to believe that his nomination as a candidate at a Legislative Council election might be wrongly rejected had to submit a nomination first and wait until the end of the election to challenge the same by election petition, and could not proceed by way of an application for judicial review prior to the election.

27.In Leung Tin Kei Edward v Electoral Affairs Commission, HCAL 133/2016 (27 July 2016), Au J held that any challenge to a Legislative Council election by a candidate or prospective candidate could only be pursued by way of election petition, and refused to grant leave to apply for judicial review prior to the election.

28.In Wong Tai Hoi v Au Nok Hin [2018] 2 HKLRD 789, this court held that a complaint by a registered elector about a returning officer’s decision that the nomination of the successful candidate in a Legislative Council election was valid could only be ventilated in an election petition or disqualification proceedings, but not in an application for judicial review.

LEUNG CHUN YING V HO CHUN YAN ALBERT (2013) 16 HKCFAR 735

29.On behalf of the Applicant, Ms Margaret Ng argues that the above authorities must be read in light of the judgment of the Court of Final Appeal in Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735.  Mr Leung was elected Chief Executive in an election held in March 2012, and Mr Ho, an unsuccessful candidate, challenged Mr Leung’s election by way of election petition under s 32 of the Chief Executive Election Ordinance, Cap 569 (“the CEEO”) as well as judicial review, alleging that Mr Leung had engaged in illegal conduct contrary to the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554.  One of the questions which arose for consideration was whether it was open to Mr Ho to proceed by way of judicial review.

30.Section 32 of the CEEO states as follows -

“(1) An election may be questioned only by an election petition on the ground that -

(a) the person declared by the Returning Officer under section 28 as elected was not duly elected because -

(iv) he engaged in corrupt conduct or illegal conduct at the election;

(b) the candidate declared by the Returning Officer under section 22(1AB)(c) as not returned at the election is not returned because material irregularity occurred in relation to -

(i) the election;

(ii) the poll at the election; or

(iii) the counting of votes in respect of the election.

(2) In this section -

election (選舉) includes nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer”.

31.As to who may lodge an election petition, s 33 of the CEEO provides that:

“An election petition -

(a) may be lodged by any candidate in the election; or

(b) may be lodged by -

(i) a person who was determined under section 17 to be not validly nominated;

(ii) a person the nomination of whom was not accepted by the Returning Officer; or

(iii) a person who was disqualified under section 20(1) from being elected,

provided that the election petition is, subject to subsection (4), subscribed to by not less than 10 members of the Election Committee in the manner specified in subsection (2).”

32.Although the Court of Final Appeal held that there was no absolute rule that an election petition was the only means by which an election to return the Chief Executive could be questioned, it also held that where an election was questioned by (i) persons eligible to lodge an election petition under s 33, and (ii) upon any of the statutory grounds set out in s 32(1)(a) or (b) of the CEEO, such challenge must be made by way of election petition but not judicial review.  Accordingly, the remedy of judicial review was not open to Mr Ho, because (i) he was qualified under s 33 of the CEEO to present an election petition to challenge the election of Mr Leung, and (ii) his ground of challenge fell within s 32(1)(a)(iv) of the CEEO: see §§21-22 of the judgment of the Court of Final Appeal:

“[21] Given the conclusion reached above on the first two facets, what of the remaining question whether the s 33 persons are confined to the election petition procedure in challenging elections? Mr Ho’s position is simply put: s 33 persons like Mr Ho have available to them in questioning an election both the election petition procedure as well as the benefit of other procedures (such as those envisaged under s 39); and further, that the grounds set out in s 32(1)(a) and (b) are also available to be utilized whether under the election petition procedure or in judicial review proceedings. In answer to the obvious objection as to why there should be available to s 33 persons both the unique and elaborate election petition procedure as well as judicial review (and other) proceedings based on the same grounds, Mr Lee SC pointed out that the two types of proceedings were different: if judicial review proceedings were sought to be instituted, leave was required and in obtaining leave, an intended applicant would have to demonstrate to the court why the election petition procedure was not utilized. Lam J had been of the view that judicial review and other proceedings based on the s 32(1)(a) grounds would be unavailable to persons like Mr Ho (in other words, the s 33 persons) with the consequence that Mr Ho’s application for leave to institute judicial review was dismissed.

[22] In my view, the Judge was right in his conclusion that judicial review (or other proceedings) were not open to Mr Ho – and therefore also unavailable to all s 33 persons – if the same grounds as set out in s 32(1)(1)(a) were used. This would also be the consequence in relation to single candidate elections in relation to the grounds set out in s 32(1)(b). The effect of ss 32 and 33 may be stated as follows:-

(1) These two sections, which deal with election petitions, must be read together in order to ascertain just who can lodge election petitions and on what grounds.

(2) Section 32(1) begins by stating that an election may be ‘questioned’. But questioned by whom? Section 33 provides the answer by identifying the s 33 persons.

(3) The word ‘only’ in s 32(1) is important and effect must be given to it. In my view, it makes clear that where an election is ‘questioned’ by someone within the class of s 33 persons on the grounds set out in ss 32(1)(a) or (b), this can only be done by election petition.

(4) Apart from the above being the proper construction of these two provisions, it also makes good sense. The election petition procedure is a unique procedure open only to s 33 persons. This class of persons is, as stated earlier, that class seen to be most likely to take action to question an election. This class, although bound by a strict time limit in the institution of proceedings, has the considerable benefit of being able to lodge an election petition as of right, without the need to seek leave. This is not the position in judicial review proceedings where leave to apply for judicial review is required. In return for this right to institute election petition proceedings as of right, the s 33 persons are, as I have said, bound by a strict time limit and also must be left with this form of proceedings as the only means of questioning an election if any of the grounds set out in ss 32(1)(a) and (b) are relied on. It makes no sense for the judicial review procedure also to be available to s 33 persons on the same grounds. It makes pointless the elaborate procedure for election petitions carefully and extensively set out in the Ordinance. The object and purpose of these provisions relating to election petitions, being the need for matters to be resolved quickly, would be defeated.

(5) In the course of his submissions, Mr Lee SC referred the Court to extrinsic materials (mainly in the form of debates when the draft bill which became the CEEO dealing with election challenges was discussed in the Legislative Council) which refer to the availability of judicial review.  I have not found these materials useful. Apart from anything else, they do not deal with the issues and facets which this Court has to consider.”

33.In Wong Tai Hoi, at §39, I summarized the applicable principles which could be derived from the above authorities:

“(1) Where a person is entitled to challenge a Legislative Council election, or the qualification of an elected person from acting as a member of the Legislative Council, by way of a specified statutory procedure on specified grounds, he is generally precluded from seeking to challenge the election or qualification on those grounds by way of judicial review.

(2) On the other hand, where no specified statutory procedure is available to a person seeking to challenge an election or the qualification of an elected person from acting as a member of the Legislative Council, he is not barred from seeking judicial review merely because the same could be challenged by way of some specified statutory procedure(s) by other person(s) with the necessary standing.

(3) Nevertheless, the remedy of judicial review may be refused in the situation referred to in (2) above on the ground of lack of standing or upon the court’s exercise of discretion.

(4) Whether the remedy of judicial review should be refused on the ground of lack of standing or as a matter of discretion would depend on the facts and circumstances of any particular case.

(5) A person who is not an elector in the relevant constituency would generally not be regarded as having a sufficient interest to challenge an election for that constituency or the qualification of an elected person from acting as a member of the Legislative Council for that constituency by way of judicial review.”

The above principles, with necessary modifications, are equally applicable to a person seeking to challenge a District Council election.

34.In my view, the judgment of the Court of Final Appeal in Leung Chun Ying does not assist the Applicant, because (i) being “a person claiming to have been a candidate in the relevant constituency”, he is qualified to present an election petition to challenge the Decision under s 50(b) of the DCO, and (ii) the ground of his challenge, namely, that the Returning Officer incorrectly decided that his nomination was invalid, falls within the statutory ground under s 49(1)(a)(iv) of the DCO (ie, “materially irregularity occurred in relation to the election”)[3].  It follows from the reasoning of Court of Final Appeal in Leung Chun Ying that the Applicant’s present challenge can only be advanced in an election petition, instead of an application for judicial review.

35.Ms Ng argues that the Applicant is not precluded from proceeding with the present application because the restriction against proceeding by way of judicial review “does not necessarily apply where an election is not questioned”, and the Applicant does not “question the election” within the meaning of s 49(2) of the DCO properly construed[4].  I am unable to accept this submission, because s 49(3) of the DCO expressly provides that, for the purpose of that section, “election” includes “nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer”.  Having regard to this definition, it is clear that the Applicant’s challenge to the Returning Officer’s decision that his nomination was invalid necessarily amounts to questioning an “election” within the meaning of s 49(1) of the DCO.

36.Ms Ng’s alternative argument is that, in the event that s 49 of the DCO is found to have ousted the court’ jurisdiction to review the lawfulness of the Decision by way of judicial review, s 49 would be inconsistent with BL 35 and unconstitutional in that it unduly curtails the Applicant’s access to the courts to protect his rights, including his right to stand for election, the rights of his electorate to vote for him in a genuine, open, honest and fair election, and his right of equality before the law, freedom of opinion and freedom of expression[5]. The short answer to this argument is that the Applicant’s right of access to the courts has not been infringed by denying him the right to proceed by way of judicial review, because he has an alternative remedy to challenge the Decision by way of election petition.  It has not been suggested that the remedy of election petition is any less effective or expeditious than judicial review. On the other hand, there is no leave requirement for presenting an election petition, unlike an application for judicial review.  In this sense, the remedy of election petition is more readily available to the Applicant than judicial review.  The fact that the Applicant does not, for any reason, wish to disturb the successful election of Mr Kelvin Lam for the South Horizons West Constituency is not, in my view, relevant to the question of whether his right of access to the courts under BL 35 has been infringed.

37.In all, I am of the view that the Applicant has adopted the wrong legal procedure to challenge the Decision.  This conclusion is sufficient to dispose of the present application for leave to apply for judicial review, making it unnecessary for me to consider the substantive grounds of judicial review raised by the Applicant in his Form 86.

DISPOSITION

38.The application for leave to apply for judicial review is dismissed, with costs to the Putative Respondents, to be taxed if not agreed, with certificate for 2 counsel.

Ms Margaret Ng, Mr Carter Chim & Mr Jason Lee, instructed by Ho, Tse, Wai & Partners, for the Applicant

Mr Benjamin Yu, SC & Mr Mike Lui, instructed by Department of Justice, for the 1^st and 2^nd Putative Respondents

The Interested Party, absent