Kwok Cheuk Kin v. Chief Executive in Council
Read the full judgment text of HCAL 1978/2023 on BabelCite. This High Court CFI judgment was delivered on 1 December 2023.
1. Henry Ford is supposed to have said, “You can choose any colour you like – so long as it is black”. It may be suggested that, whilst firmly disagreeing about the colour, the HKSAR Government approves of the underlying sentiment as to choice.
Cites 12 cases
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HCAL 1978/2023 [2023] HKCFI 3074 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1978 OF 2023 ________________________
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___________________ J U D G M E N T ___________________ A. Introduction A.1 The Nomination Requirement 1.Henry Ford is supposed to have said, “You can choose any colour you like – so long as it is black”. It may be suggested that, whilst firmly disagreeing about the colour, the HKSAR Government approves of the underlying sentiment as to choice. 2.At least, that is part of the argument in effect raised by the Applicant on his intended challenge made in these proceedings to the legislative provision containing a particular new nomination requirement (“Nomination Requirement”) applicable to the forthcoming District Council (“DC”) Ordinary Election. 3.Prior to recent legislative amendments to the District Councils Ordinance Cap 547 (“DCO”), a person seeking nomination as a candidate in respect of any constituency should be subscribed (i.e. nominated) by 10 other persons, each being an elector registered in respect of the relevant constituency. In other words, DC elections were practically open to all Hong Kong permanent residents who could gather support from 10 other electors in the constituency in which they wished to stand for election. 4.Following legislative amendments made this year, and the introduction of a new section 5A of the DCO combined with section 7(2)(b) of the District Councils (Subscribers and Election Deposit for Nomination) Regulation Cap 547A (“Nomination Regulation”), a person seeking nomination in respect of a District Council geographical constituency (“DCGC”) is required to obtain nomination – i.e. the Nomination Requirement – from: (1) not less than 50, but not more than 100, electors for the DCGC, and (2) not less than 3, but not more than 6, members of each of the three District Committees (“3Cs”) in the District. 5.There can be no real dispute that the Nomination Requirement has made it at least significantly more difficult for a person to stand for election as a District Councillor to represent a DCGC. Not least in light of what has happened since, there is room for understanding the views of some persons that for all practical purposes it may have made it impossible. A.2 The Battle Lines 6.Article 26 of the Basic Law (“BL26”) provides:
7.Article 21 of the Hong Kong Bill of Rights (“BOR21”), headed ‘Right to participate in public life’, provides:
8.The Applicant seeks leave to apply for judicial review, and on the substantive application for judicial review he seeks a declaration that the new provision embodying the Nomination Requirement is inconsistent with BL26 and/or BOR21, and therefore unconstitutional, null, void and of no effect. The core assertions are that BL26 and BOR21 are engaged and the Nomination Requirement cannot survive a proportionality analysis, because it is a disproportionate interference with and/or an unreasonable restriction upon the fundamental rights created by BL26 and BOR21. 9.The Putative Respondent (“CE-in-C”) and putative interested parties (“SJ” and “SCMA”) (all together, “Government”) oppose the application on various bases, including that:
A.3 The Hearing 10.The DC Elections are due to be held on 10 December 2023, but these proceedings were commenced only by a Form 86 dated 6 November 2023. In those circumstances, I gave tight timetabling directions to bring this matter to a ‘rolled-up’ hearing of (1) the application for leave to apply for judicial review, and (2) if appropriate, the substantive hearing of the application for judicial review. The hearing was fixed for 30 November 2023. 11.That hearing date was put in jeopardy by the Applicant’s application for legal aid made on 9 November 2023, which triggered an automatic 42-day stay of the proceedings, which would have expired only after the DC Elections would have taken place. On the same date, I lifted the stay with immediate effect, so that the hearing could go ahead. 12.But the hearing was again put in doubt when, despite having solicitors acting for him on the record, the Applicant wrote personally to the Court expressing some equivocation as to whether he should proceed with the application or withdraw it. But, once his solicitors were apprised of that letter, they took instructions from the Applicant and wrote to the Court to confirm that he would continue to pursue the application. 13.The hearing has proceeded on the basis of an Amended Form 86 dated 23 November 2023, where the subject matter of the challenge has remained unchanged. In so far as it may be necessary for me formally to grant permission for the amendment, I shall grant it. 14.The Applicant has been represented by Mr Anson Wong Yu Yat and Mr Jonathan Ip of Counsel. The CE-in-C has been represented by Mr Jenkin Suen SC leading Mr Michael Lok of Counsel. The written and oral submissions presented by both teams of Counsel were of a very high standard, not least against the tight timetable for bringing this matter to an effective hearing. 15.The case was fully argued on all points. At the end of the hearing, I reserved my decision until the next day. This is my Judgment. 16.For persons who do not know their DCGCs from their DCCs or DFCCs or DFSCs etc, I have appended to this Judgment a glossary of terms which I hope will assist with navigating the alphabetical seas of acronyms adopted. B. Historical Context and Legislative Framework B.1 District Organizations 17.As already stated, the impugned Nomination Requirement is to be found in section 7(2)(b) of the Nomination Regulation. But, to understand the nature of the challenge made in these proceedings, it is helpful to view the Nomination Requirement in its historical context and legislative framework. Mr Wong and Mr Suen have both traversed that context, albeit with different points of emphasis. 18.The starting point in the period since the resumption of sovereignty in 1997 must be Articles 97 and 98 of the Basic Law (“BL 97” and “BL 98” respectively). Those provisions are as follows:
19.As will be seen below, those provisions may identify not just the starting point but may also inform the endpoint. 20.However, local district advisory bodies in Hong Kong date back at least to the late 1970s, when they were first established in the New Territories in 1977. 21.In the 1980s, there were eight District Advisory Boards – for which I shall avoid the offered definition of “DAB” for obvious reasons – one each to cover all Districts of the New Territories. Their terms of reference were:
22.The District Administration Scheme was introduced in 1982, and District Boards (“DBs”) with an element of election were set up in the 18 districts of Hong Kong. The purposes of that scheme were, amongst other things, to ensure the Government would be responsive to district needs and problems, as well as more effective coordination of government activities in the provision of services at district level. The DBs ceased on 30 June 1997, upon the establishment of the Hong Kong Special Administrative Region (“HKSAR”). 23.However, as the district organisations under BL 97 were not immediately established on 1 July 1997, provisional district organisations (“Provisional DBs”) were set up to fill the resultant vacuum. 24.Subsequently, a DC has been established in each of the 18 districts of the HKSAR, with effect from 1 January 2000. The sixth term of the DCs ends on 31 December 2023, and the forthcoming DC Elections are part of the process of establishing the DCs for the seventh term. B.2 The Three District Committees (“3Cs”) 25.Alongside the DCs serving as the major advisory body in Districts, there have been other district advisory committees, addressing issues of local district concern and organising various publicity campaigns and community building activities, to promote greater public awareness of specific themes, including crime prevention and fire safety. 26.For present purposes the relevant three District Committees – i.e. the 3Cs – are: (1) the District Fight Crime Committee (“DFCC”); (2) the District Fire Safety Committee (“DFSC”) and the Area Committee (“AC”). 27.DFCCs were established in 1976, mainly for the purpose of promoting public awareness of the Fight Crime Campaign through organising activities at the district level. There is one DFCC in each District, and DFCCs are the only committees directly concerned with law and order issues in each of the Districts. Their terms of reference include:
28.The DFSCs were established in 1998, as part of the Government’s package to promote fire safety after several tragic fire incidents. There is one DFSC in each District, and its main objective is to enhance community involvement in promoting fire safety and building safety in private buildings. Their terms of reference include:
29.ACs were first formed in 1972, originally to promote participation in the Keep Hong Kong Clean Campaign and Fight Violent Crime Campaign. Over the years, ACs have evolved to become a channel for District Offices to collect public views and to act as a partner in organising community building activities. The deponent for the Government, namely the Principal Assistant Secretary for Constitutional & Mainland Affairs (3) to the CMAB (“Mr Chik”) – says that after the mass resignation of members of the sixth-term DCs, ACs have taken on a more active role to provide advice to the Government and to inform the Government about the problems in their respective districts. Their terms of reference include:
30.Members of the 3Cs are appointed by the Secretary for Home and Youth Affairs (“SHYA”). The appointments are made with reference to the Government’s principles in making appointments to advisory and statutory bodies, namely on the basis of the merit of individuals concerned, taking into account a candidate’s ability, expertise, experience, integrity and commitment to public service and with due regard to the functions and nature of business of the committees. 31.Mr Chik has deposed to the fact that, in the most recent appointment exercise, the SHYA received and considered nominations from District Offices and other key stakeholders in the Districts, including local organisations, NGOs, political parties, etc. Further, as the members of the 3Cs have the important responsibility of nominating candidates (see below), the Government would when appointing these members conduct reviews according to established internal procedures to ensure that all members of the 3Cs appointed are patriots with an affection for Hong Kong who will uphold the Basic Law and bear allegiance to the HKSAR. In appointing the present members, the SHYA also endeavoured to ensure the proposed appointees were patriots and were supportive to the good administration of the HKSAR Government. 32.On 11 March 2021, the National People’s Congress (“NPC”) promulgated its decision on improving the electoral system of the HKSAR (Instrument 31 to the Basic Law). It stipulates that the Election Committee (“EC”) for the election of the Chief Executive shall be composed of 1,500 members from five specified sectors, the fourth of which comprises Legislative Council (“LegCo”) members and representatives of district organisations. By virtue of the Improving Electoral System (Consolidated Amendments) Ordinance 2021, out of the 300 EC members under the fourth sector, the 3Cs members of Hong Kong and Kowloon and the New Territories shall elect 76 and 80 EC members respectively. By inclusion of the 3Cs members in the composition of the EC (which is written in Annexes I & II to the Basic Law), the Government believes that the 3Cs have met the relevant requirements by the standard of the NPCSC, and are entrusted with duties to nominate and elect EC members, which will then nominate and elect the CE as well as LegCo members. 33.According to Mr Chik, members of the 3Cs are appointed from various sectors of society, and at present approximately:
34.I note that the members of the current term of the 3Cs, which runs from 1 January 2023 to 31 December 2023, were appointed by the SHYA in December 2022. But, on average, the incumbent members have served on the 3Cs for more than three years but not more than six years (pursuant to the ‘Six-year Rule’, which is designed to ensure a healthy turnover of members of advisory and statutory bodies). 35.Further, most members of the 3Cs are said to have many years of previous service in the Districts, in various capacities, prior to their appointment in the 3Cs. Mr Chik deposes that nominations from 3Cs members (see below) can ensure that the elected members truly understand district affairs and can strengthen the connection between the district committees and DCs. Further, he says, as members of the 3Cs are patriots and supportive to the good administration of the HKSAR Government, it would be unlikely for a person who is not patriotic, or worse has acted against the interests of China or Hong Kong, to be in a position to obtain their subscriptions/nominations. 36.The SHYA has explained that less than 20% of the members of the 3Cs are affiliated to any political party. B.3 Powers and Functions of DCs 37.The power and functions of the DCs were, pursuant to BL 98, established through law, originally by section 61 of the DCO, being:
38.However, as from 1 January 2024 (i.e. at the commencement of the seventh-term DCs), section 61 of the DCO shall be repealed, and the functions of the DCs shall be provided for under section 4A of the DCO, which is as follows:
39.In passing, it might be noted that the “other consultation and service organisations in the District” referenced in section 4A(h) would apparently include at least the DFCC, DFSC and AC(s), i.e. the 3Cs. 40.Nevertheless, despite the legislative changes, the major role of the DCs has all along been to give advice to the Government on district matters and, when the Government provides funds, to undertake specified district activities. B.4 Previous Composition of DCs 41.The Applicant has drawn attention to the make-up of the DCs, and in particular the shift to ‘democratization’ over time, as follows:
42.As for the seventh-term DCs, their composition will significantly change as a result of the legislative amendments. B.5 Legislative Reform 43.The problem, from the Government’s standpoint amongst others, is that during the sixth-term DCs there were deviations from the DCs’ major role during “the black-clad violence where they had become highly politicised and the normal advisory function has been lost” – to use the wording from the affirmation of Mr Chik. 44.As it was put at §§9 and 10 of the LegCo Brief dated 2 May 2023 on ‘Improving Governance at the District Level’:
45.Those paragraphs – the essence and language of which are repeated in numerous other documents – identify part of the ‘mischief’ which gives rise to what is said to be the legitimate aims of the Nomination Requirement. Another part of the ‘mischief’ was identified in §29 of the same LegCo Brief, as follows:
46.Against that backdrop, reform of the DCs was introduced by the Government, to be affected by amending the relevant legislation and implementing administrative arrangements, so as to “strengthen district governance structure”. The LegCo Brief included some detail of the proposed review, including the structure amongst appointed members, DCC members and DCGC members – in what is called the ‘4:4:2’ proposal – with reference to the relevant nomination requirements. 47.On the same day, 2 May 2023, the Government issued a press release which, amongst other things, identified the recommendations of the proposals for governance at the district level. The reform proposals did not expressly mention change to the nomination requirements for candidates. The press release identified that the proposals were guided by three principles (see below). It also identified that the Government targeted to complete the legislative amendments before the summer recess of LegCo this year, so that the DC election could be held at the end of this year (2023). 48.As explained by Mr Chik, public consultation on the proposed reform was held in early May 2023. Over 99% of the views received – totalling 25,105, being 24,795 from individuals and 310 submitted by organisations – supported the proposals on improving governance at the district level (though it is fair to say that the presentation of the responses does not identify how many people specifically supported the proposal relating to the Nomination Requirement). The presentation of the public views did identify that, of the remaining less than 1% of the views received, only 10 were non-supportive views. Concerns raised included as to the nomination requirements being too stringent. The public views were subsequently taken into account when the Government took forward the proposal at LegCo. 49.The reform proposals were debated in LegCo, first through a subcommittee studying the proposals, which subcommittee subsequently became the Bills Committee after the introduction of the amendment Bill into LegCo on 31 May 2023. Scrutiny of the Bill was completed on 30 June 2023, following nine meetings conducted by the subcommittee lasting 16 hours in total over 7 working days. 50.If necessary, reference can be made to the relevant discussions as were recorded in the various papers listed by Mr Chik at §39 of his affirmation. But, as examples:
51.The Government conducted the review on district administration based on the following guiding principles:
52.The aim of the Government identified in the briefs to LegCo was that the reformed DCs should revert to their positioning as district advisory bodies which are not organs of political power in accordance with BL97, that they should be depoliticised and fully practice the principle of executive-led governance, while enhancing their functions as an effective channel for gauging public views and serving the community in a pragmatic and practical manner. As explained by the SCMA in a speech on 4 May 2023, the reforms had not been directed at, for example, excluding certain parties from participating in district affairs. The only people excluded are those who are not patriotic and those who fail to act in the best interest of the HKSAR and China, regardless of their political beliefs or affiliations. 53.On the other hand, the Applicant has identified that, in the LegCo briefing materials, the Government has not even mentioned the constitutional rights to participate in public affairs, to vote and stand for elections, or the Hong Kong Bill of Rights. Therefore, he says, where no reference has been made to those constitutional rights, obviously no balancing against those matters has been performed. 54.The Bill was passed by LegCo on 6 July 2023. That date was the resumption of debate on Second Reading of the Bill, moved on 31 May 2023. First to speak on the resumed debate was Mr Michael Tien, lending his firm support to the passage of the Bill, and in argument at the hearing Mr Suen asked me to pay particular attention to what Mr Tien said, to identify that amongst the things which LegCo took into account in its deliberations was a concern about “retrogression in democracy”. Amongst Mr Tien’s comments were the following (in English translation):
55.In passing, I note the evidence adduced by the Applicant that the same Mr Tien – who is the convenor of Roundtable – is reported to have said later: that there were significant difficulties in obtaining nominations from members of the 3Cs; that even though the intended candidates of Roundtable had served in the district for a long time and are all patriotic, all of them apart from one were unable to get any nomination from members of the 3Cs; that there was no reply to any emails sent to members of the 3Cs; and that the difficulty of obtaining nominations was 100 times more difficult than standing in LegCo and NPC elections, of which two bodies Mr Tien is himself a Member and Deputy respectively. 56.The DC(A)O was published in the Gazette and came into effect on 10 July 2023. 57.On the same day when the Bill was passed, both the Hong Kong and Macao Affairs Office of the State Council (“HKMAO”) and the Liaison Office of the CPG (“LOCPG”) issued statements confirming the passage of the Bill as an important measure to improve governance and stressing that it implemented the principle of “patriots administering Hong Kong”, with important implications on improving district governance. 58.As already stated, the DC Elections for the upcoming seventh-term are scheduled for 10 December 2023, and the process towards them and the elections themselves will be held in accordance with the DCO as amended (and which came into effect on 10 July 2023) 59.The polling date of 10 December 2023 was made known to the public on 24 July 2023. It was specifically mentioned that the Government would endeavour to ensure that the seventh-term DCs would assume office on 1 January 2024 as scheduled. 60.The Electoral Affairs Commission (“EAC”) published ‘Guidelines on Election-related Activities in respect of the District Council Election’ (“Guidelines”), which amongst other things set out details concerning the Nomination Requirement (see §§3.17-3.20). B.6 More about the Nomination Requirement 61.In respect of DCC elections, a candidate standing for election in respect of the DCC of the DC of a District must be nominated by electors of the DCC, i.e. members of the 3Cs – though the candidate need not himself/herself be a member of the 3Cs. The candidate’s nomination form must be subscribed by not less than 3 but not more than 6 electors in each of the 3Cs in the District (other than the candidate himself/herself) assenting to the nomination. An elector is entitled to subscribe a number of nomination forms in respect of the DCC up to the number of members to be returned for the DCC at the election. 62.In respect of the DCGC elections, a candidate standing for election in respect of a DCGC of the DC of a District must – i.e. the Nomination Requirement provided for in section 7(2)(b) of the Nomination Regulation is that the candidate must – be nominated by:
63.To put that in numerical context as regards the number of potential nominators/subscribers, there are apparently on average 86, 27 and 27 members in the ACs, DFCC and DFSC respectively in each District. 64.A template email was later, on 6 October 2023, issued to each of the members of the 3Cs, reminding them of the relevant provisions in the DCO regarding the eligibility criteria of the election candidates, though the email was actually headed (in English translation) ‘Referral Arrangements for Requests for Contact with Members of the [3Cs]’. This was sent because, as the email itself identifies, voices in society had pointed out that the Electoral Affairs Commission (“EAC”) had not provided contact information of the DCC electors (i.e. the members of the 3Cs), rendering it difficult for prospective candidates to seek nominations. 65.The template email referred to a EAC press release issued the previous day, 5 October 2023, stated:
66.In other words, prospective candidates may well have no means to contact – or “reach out to”, if you prefer that phrase – persons from whom they would require nomination, except to ask the EAC to pass on a message asking to be contacted, leaving it entirely to the potential nominator to decide whether to respond at all. Yet, at the same time, prospective candidates are reminded of their “duty” to obtain sufficient nominations in order to comply with the candidacy requirements. There is perhaps room for thinking of a Kafkaesque doorway. 67.The template email also contained the following paragraph, which the Government now says provided guidance to the 3Cs members as to how to exercise their nomination rights (in the English version, emphasis in original):
68.The English version of the template email is not identical to the offered English translation of the Chinese version of the template email (which was in the hearing bundle). Perhaps the most notable difference is in the last phrase where the word “discreetly” in the English version has been translated from the Chinese version – which presumably most members of the 3Cs would have followed – as meaning “prudently”. 69.I will identify below what in fact has been the result of that exercise of prudence. 70.The relevant nomination period – within which those aspiring to stand for election in a DCGC would need to have satisfied the Nomination Requirement – began on 17 October 2023. 71.During the nomination period, at a media session on 24 October 2023, the CE made certain remarks, including (in English translation):
72.The nomination period lasted 14 days, and ended on 30 October 2023. B.7 New Composition of DCs 73.The new composition of DCs with the involvement of the 3Cs is provided for in sections 5 and 5A of the DCO, which provide as follows:
74.By looking at the other provisions of the DCO there referenced, it can be deduced – and it is common ground – that the DCs will in future comprise a total of 470 seats, of which:
75.If one ignores the 27 ex officio members, the split of membership of the DCs amongst the three other groups is approximately 40%: 40%: 20% – hence the use of the ‘4:4:2’ ratio. 76.Obviously, the 88 members who will be elected through the DC Elections to represent the DCGCs will have had to satisfy the Nomination Requirement. 77.Therefore, it may be pertinent to note at this juncture that:
78.It is, however, also useful to note now that there is no constitutional challenge to the appointment mechanism in (1) above, or to the appointment and internal election mechanism in (2) above – together totalling about 8 out of each 10 members of the DCs. Only the aspect of the election mechanism in (3) above is the subject of the constitutional challenge, as being incompatible with BL26 and BOR21. 79.Though this case focuses on the Nomination Requirement as applies to the potential candidates for the DCGC seats (roughly 20%), I thought it might be helpful to see that in context of the similar application of the Nomination Requirement as it has applied to potential candidates for the DCC seats (roughly 40%). Therefore, at the hearing, I asked Mr Suen to take instructions on that point. 80.With the benefit of that further information, it can be seen that the result of the members of the 3Cs exercising their nomination rights “prudently” has been as follows:
81.Whilst Fortune favours the bold, perhaps Prudence favours oneself. In any event – whilst I note that there is no express bar to members of the 3Cs seeking nomination – I am not sure that people reading the reform proposals and the DCO as amended would have instinctively thought that the body of persons charged with nominating candidates would themselves end up comprising the vast majority of the candidates nominated. As it turns out, the ‘gatekeepers’ have opened the gates mainly for themselves. 82.To be fair, since the hearing, the Government has provided me with data showing that in the 2015 DC election (i.e. for the fifth-term DC): (1) 45% of the candidates who stood for election were 3Cs members, and 55% were not; and (2) 74% of the candidates elected as DC members were 3Cs members, and 26% were not. But, of course, on that occasion the old provisions relating to subscribers applied, and the members of the 3Cs were not ‘gatekeepers’ in the way triggered by the introduction of the Nomination Requirement in 2023. 83.Perhaps unsurprisingly, therefore, the Applicant draws attention to the facts that:
84.The Applicant describes this as a “retrograde” step. As can be seen from above, apparently many others have expressed the similar view. But whether it is a step backwards or step forwards may depend on your point of view. In any event, that is not of itself the test of legality or constitutionality. B.8 Additional Allegiance Safeguarding Provisions 85.The DC(A)O also created the District Council Eligibility Review Committee (“ERC”), as is now found in section 10A of the DCO. The members of the ERC are all appointed by the CE, who must report the appointments to the CPG for the record. 86.Section 10B(1) of the DCO provides that the ERC is to review and confirm the eligibility of (a) any person proposed to be appointed under Division 1 of Part IV of the DCO, (b) any person proposed to be registered under Division 2 of Part IV as an ex officio member; or (c) any person nominated under Part V as a candidate. 87.For present purposes, it can therefore be noted that even after a person has been nominated, for example satisfying the Nomination Requirement as a candidate for election to a DCGC, that person’s eligibility must nevertheless be reviewed and confirmed by the ERC. 88.Section 10B(2) provides that, in deciding the eligibility of a person, the ERC is to seek the opinion of the Committee for Safeguarding National Security (“CSNS”) of the HKSAR as to whether the person fails to fulfil the legal requirements and conditions on upholding the Basic Law and bearing allegiance to the HKSAR of the PRC. It also provides that if an opinion is given by the CSNS, the ERC must make the decision in accordance with the opinion. 89.Further, section 34(1A)(c) of the DCO requires a person nominated as a candidate for a DC must submit a nomination form which includes or is accompanied by a declaration by the person to the effect that the person will uphold the Basic Law and pledge allegiance to the HKSAR of the PRC. 90.Under section 21(1A) of the DCO, a person is disqualified from being nominated as a candidate and from being elected as a member at an election, if the election is held or is to be held within 5 years after: (a) the date on which the person vacates an office, or is disqualified from entering on an office, under the law, for declining or neglecting to take a specified oath; or (b) the date on which the person is declared or decided in accordance with any law (i) to be in breach of the specified oath; or (ii) to have failed to fulfil the legal requirements and conditions on upholding the Basic Law and bearing allegiance to the HKSAR of the PRC. 91.Further, under section 19A of the Oaths and Declaration Ordinance Cap 11 (“ODO”), as soon as an elected member of the DCs commences his/her term of office, he/she must take the oath to uphold the Basic Law and pledge allegiance to the HKSAR of the PRC. 92.Yet further, under section 79(1) of the DCO, the Secretary for Justice (“SJ”) may bring proceedings in the Court against any person who is acting or claims to be entitled to act as a member, on the ground that the person is disqualified from acting as such. Under section 79(2), as soon as any such proceedings are brought by the SJ against the person on the ground that the person is disqualified from acting as a member either (a) for being in breach of an oath taken under section 19A of the ODO, or (b) for failure to fulfil the legal requirements and conditions on upholding the Basic Law and bearing allegiance to the HKSAR of the PRC, then that person’s functions and duties as a member are suspended until the decision of the Court in the proceedings becomes final. 93.The Applicant also draws attention to various provisions now found in the DCO as amended which empower the Government to exercise a greater degree of control over the DCs and their members, including that:
94.As to what might constitute misconduct, the LegCo briefing notes identified that a guideline would be issued to set out a list of negative behaviour, including but not limited to:
95.I shall refer to these various provisions and matters compendiously as the “Additional Allegiance Safeguards”. To refer to them as adopting a ‘belt and braces’ approach to safeguarding allegiance might appear to be something of an understatement. When it comes to being prepared, even a Boy Scout might be impressed. C. Other Evidential Matters 96.The bulk of the Applicant’s evidential materials was set out only in his 2nd affirmation, no doubt with the benefit of the legal advice obtained since he originally commenced this application acting in person. I may come back to the Government’s criticism that the Applicant has attempted to introduce new evidence and legal submission in that affirmation, exceeding the scope of both the original and the amended Form 86. But I can state at once that I agree that the affirmation does, improperly, contain matters which are really legal submissions. 97.The Applicant has however sought to draw the Court’s attention to certain facts which, he says, demonstrate that the Nomination Requirement has taken away genuine choices of candidates from the electors and impaired the very essence of the right of electors to vote, to stand for elections and to participate in public affairs through freely chosen representatives. 98.He notes and asserts in particular that:
99.In the very short time available to it, the Government has sought to respond to the Applicant’s 2nd affirmation, through Mr Chik’s 2nd affirmation and an affirmation of Li Sze Man. I gave leave at the hearing for the Government to rely upon those affirmations. 100.In Mr Chik’s 2nd affirmation, he points to different relevant public information or public statements which give a different picture from that attempted to be painted by the Applicant. On the basis of those materials, Mr Chik suggests that it is both wrong and insulting to assume or assert that members of the 3Cs do not have the sense of civic responsibility when they exercise their nomination rights, or that they might exercise those rights arbitrarily. 101.Mr Chik also points out that about 79.2% of the members of the 3Cs who have exercised their nomination rights, by nominating DCGC candidates, are independent without political affiliation. Further, by reference to publicly available information, the candidates of the upcoming DC Election (all of whom satisfied the Nomination Requirement) can be seen to come from a diverse background, with different occupations and political affiliations. Mr Chik produced the following two tables:
102.I think it is fair to take the totality of materials as providing a more balanced picture of (a) the approach that was, or was likely to be, taken by members of the 3Cs when exercising their nomination rights as regards potential candidates for DCGCs, and (b) the results of the exercise of those nomination rights. 103.Nevertheless, the result of the exercise of the nomination rights which is perhaps the most stark is the very large proportion of the validly nominated candidates who come from the members of the nominating 3Cs themselves. D. Locus / Standing 104.In the original Form 86, the Applicant asserted his locus or standing to make the application on the basis that he is a permanent member of the Democratic Party and a permanent resident of the HKSAR. The Amended Form 86 asserted that the case involves an issue of great general public importance. 105.When the point was taken against him that he lacked (or might lack) standing, because his name is not included as a registered elector for the upcoming DC Elections and there is no evidence that he had indicated interest in taking part in the election, the Applicant responded in his 2nd affirmation expressing some surprise and shock. He stated that, to the best of his understanding, he had always been a registered elector of the DC elections because:
106.However, it seems that the Applicant may have been less than full and frank. This is shown by the evidence given in the Li Sze Man affirmation, which shows (in my summary of it):
107.Mr Wong said from the Bar Table that the Applicant did not accept all that evidence, but he made no application to file further evidence, on the basis that it would not likely assist the Court. 108.Whilst recognising that the Applicant could not have disclosed any letter or SMS which he had not actually received, it seems to me that he plainly ought to have referred in his evidence to the telephone conversation which took place about his continued registration or not. He also knew that he had moved address, and from his previous experience would have known that he ought to have informed the REO of his move, if he were to continue to be a registered elector. 109.It is also of particular concern that the Applicant has been less than full and frank in light of the warning given by me in a previous case when the Applicant was also applicant. In Kwok Cheuk Kin v Secretary for Health [2022] 5 HKLRD 348 at §§156-159, I expressed the view that the Applicant had also been “less than forthcoming” as regards the question of standing in that case, and I reminded the Applicant and other future applicants that the principles relating to full and frank disclosure should firmly be borne in mind. 110.In any event, the simple fact is that the Applicant is not included as a registered elector under the Final Register published under the Regulation for the forthcoming DC Elections. Hence, it might be thought that the Applicant has at least not taken much actual “interest” in the DC Elections, prior to launching this application. 111.But the relevant legal test as to standing is whether the Applicant has “sufficient interest in the matter to which the application relates” within the meaning of section 21K(3) of the High Court Ordinance Cap 4 and Order 53 rule 3(7) of the Rules of the High Court (“RHC”). 112.In another one of the many previous cases involving the Applicant, Kwok Cheuk Kin v Commissioner of Police [2017] 6 HKC 93, at §34, Chow J (as Chow JA then was) sought to summarise the principles to be applicable in determining the question of standing in judicial review. Broadly adopting his summary of those principles, they can for present purposes be put as follows:
113.Mr Wong has focused on point (2) above, and submits that the present application involves an issue of great general public importance, namely whether the election system for the DCGCs is unconstitutional for infringing the fundamental right to stand for election and to participate in public affairs through freely chosen representatives. He says it would be detrimental to the rule of law to allow an unconstitutional election system to stand, and there are no other challengers who have a greater interest in the matter. He submits that the Court should deal with the issue of constitutionality at the first available opportunity, and this is it. 114.Mr Suen submits that (1) the Applicant is not to be regarded as having sufficient interest merely because the issue raised by him is public interest, and (2) there are plainly other person to have greater interest than the Applicant, such as any person intending to stand for election and/or a person not having satisfied the Nomination Requirement. There is also force in Mr Suen’s submission that the point advanced by the Applicant in his 2nd affirmation on standing would essentially suggest that any permanent resident of Hong Kong would enjoy the requisite standing to bring such a challenge, which simply cannot be correct. 115.I think the anecdotal evidence (see above) must suggest that there is a person or are persons who had an intention to stand for election but have not been able to satisfy the Nomination Requirement. However, no such person has – for whatever reason – chosen to make a challenge along the lines of the present challenge intended by the Applicant. I take that into account. 116.I note that I have received a further affirmation apparently filed by the Applicant personally on 21 November 2023, notwithstanding that he was at the time represented by solicitors on the record, in which he seems to try to address the question of standing by saying that he was previously qualified as a candidate for three pervious DC elections. I am not sure that even his own solicitors were aware of that affirmation, let alone those acting for the Government. Certainly, it did not make it into the hearing bundle. In any event, I do not think it significantly adds to the debate and I shall ignore it. 117.I also note the degree of equivocation evidenced by the Applicant even after he made this challenge, which might at least go indirectly to the issue of standing. I think the standing of the Applicant is at best doubtful. 118.Nevertheless, in adopting a holistic approach by taking into account a host of relevant considerations, it would fall also to consider the merits of the application, the importance of vindicating the rule of law, the importance of the issue raised, and the nature of the public law deficiency against which relief is sought. Also relevant is the question of whether there has been undue delay, the topic to which I next turn. E. Whether Undue Delay in Making Application 119.It is helpful here to set out again the key elements of the chronology relevant to the question of the timing of the application, and whether there has been (and the extent of the) undue delay:
120.Also relevant are the following matters, by reference to dates which are all public knowledge:
121.For his part, the Applicant seeks to emphasise that he was acting in person when he commenced the present application on 6 November 2023, which was 27 days after the expiry of the three-month time limit under RHC Order 53 rule 4(1), and that was only 7 days after the close of the nomination period on 30 October 2023. The Applicant says it was reasonable and prudent for him to take a “wait-and-see” approach to assess whether he should bring a challenge. 122.In my very recent decision in Titan Petrochemicals Group Ltd v The Stock Exchange of Hong Kong Ltd [2023] HKCFI 2935 at §§50-58, I addressed the relevant principles relating to the question of promptness and delay. The starting point is that RHC Order 53 rule 4(1) – which rule is headed “Delay in applying for relief” – imposes an obligation on an applicant by requiring that the application for leave to apply for judicial review shall be:
123.Filing an application within three months is not in and of itself sufficient to satisfy the requirement of promptitude. Absent an extension granted by the Court upon good reason, the three-month period is merely a long-stop period – or a quantified default time limit – applicable to all cases. But, public law decisions typically affect a broad range of parties, and there is a significant public interest in ensuring that any challenges to such decisions are brought expeditiously. Full weight must be given to all aspects of the public interest, including the respect which must be paid to the time limits laid down by the rules. 124.Therefore, whether an application has in fact been “made promptly” will depend upon the particular circumstances in each case. Depending on the context of the particular administrative decision or legislative provision sought to be challenged, it is possible that an applicant who commences proceedings even within three months may be guilty of undue delay for not having acted promptly. The circumstances to be taken into consideration include but are not limited to (1) the nature of the relevant statutory or regulatory framework, (2) the reasonableness or unreasonableness of the applicant’s conduct, and (3) the impact of any delay on interested parties. 125.But, in any event, an application made outside the three-month period will entail undue delay. 126.Hence, an applicant commencing judicial review proceedings who has been guilty of undue delay will require an extension of time in which to apply for leave to apply for judicial review. To justify an extension, the applicant must show “good reason” for extending the period. 127.The existence of good reason for any undue delay does not automatically lead to the grant of leave to apply, but is but one facet of the question whether leave to apply should be granted. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause hardship or prejudice, or be detrimental to good administration – although this conclusion might be less likely to be reached at the leave stage. 128.Where the Court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. The relevant consideration is whether, on the substantive hearing, relief might or should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or detrimental to good administration. 129.In this particular case, it is clear that the Applicant has not acted promptly in all the circumstances. For reasons including the publicly known discussions, the statutory context and the chronology, I think the requirement of promptitude in the present circumstances required the Applicant to have made the application within just a few weeks, at least during July or early August 2023. 130.In any event, it is also accepted on behalf of the Applicant that he did not even apply within the long-stop period of three months, and was almost another month late. Therefore, the Applicant will require an extension of time in which to apply for leave to apply for judicial review. I have pointed out that, if the Applicant did not make the application promptly, as I have found, he needs much more than just a 27-day extension of time. 131.In that context, it seems to me to be of real significance that the Applicant deliberately delayed. This is because he chose the “wait-and-see” approach, to see what would in fact happen during or as a result of the process involving the Nomination Requirement. The Applicant says that there was a possibility that, despite the Nomination Requirement, there would still be sufficiently diverse and genuine choices in the DCGC elections. As Mr Suen correctly submits, where the Applicant is making a systemic challenge – on the basis of alleged unconstitutionality of the legislative provisions – it should be strictly irrelevant to his case how the requirement in fact unfolds (and this may come back into view when looking at the merits, when a systemic challenge requires demonstrating that the system is incapable of being operated in a proportionate way). 132.Adopting a “wait-and-see” approach has been consistently discouraged by the Courts. In most circumstances, the Court will not instinctively favour with an indulgence any applicant who has deliberately delayed making an application. 133.Mr Wong submits that, since the constitutionality of a statute is involved, the time factor is not as compelling as in other situations. Indeed, he says, where the constitutionality of the statute is being questioned on the basis that fundamental human rights are being breached, the public interest is very much engaged, so that it would be detrimental to the rule of law and good administration to turn a blind eye to a potentially unconstitutional election system affecting Hong Kong as a whole. 134.Mr Wong also points to the fact that the Nomination Requirement will remain in the legislation, unless otherwise amended or repealed in future. Therefore, a challenge such as the present challenge might be brought at any time in the future, since DC elections are legally required to be held regularly, and the Nomination Requirement will continue to be engaged. Mr Wong submits that that also makes time a factor of less significance. However, it seems to me that it must also be recognised that there is already potentially substantial prejudice to good administration, now that the integrity of the DC Elections is sought to be put in doubt. 135.Mr Wong also submits that there are strong merits in the application, which point to granting the extension of time. Of course, I also take into account the merits of the application itself – which I shall traverse in some detail below. This is, obviously, where the potential consequences of undue delay come into play. If there are strong merits in the application, that may of itself provide “good reason” for extending the time, even if it is thought that there has been undue delay. 136.It is therefore necessary to proceed to consider the merits of the application. 137.However, Mr Suen submits that to allow the intended judicial review to proceed would itself undermine the overall legitimacy and certainty of the DC Elections. Whilst I see something in that submission, I am not sure that it is ultimately correct. Indeed, there seems to me to be a greater danger of undermining the overall legitimacy and certainty if the current application were to be dismissed solely on what might be called technical or procedural grounds. Unless the merits of the application are in fact considered and ruled upon, there may remain some public doubt as to the overall legitimacy and certainty of the arrangements. That would be unfortunate. 138.But, in any event, the merits come into play when considering both aspects of standing and what should be the consequences of undue delay. 139.I acknowledge the great force in Mr Suen’s submissions that:
140.Nevertheless, I am ultimately persuaded that – despite the doubts about standing and the substantial undue delay – the best course overall in the wider public interest is to deal with the challenge on its merits. This seems to me to deal with the way which adopts a flexible, though principal and structured, approach. As was said at the hearing, the ‘can of worms’ is already open, and it seems to me necessary to seek to resolve the constitutional challenge, one way or the other. 141.That is not to leave any impression that applicants for judicial review can fail to comply with the rules and requirements of frankness with impunity. But each individual case must be approached on its own individual circumstances. In this case, such is the importance of the point which has been raised in these proceedings that I think that it must be addressed head-on now, at the first available occasion for the Court so to do. A constitutional challenge lies at the core of the rule of law. 142.Awaiting some potential future challenge, possibly by way of an election petition (which by its nature would be of limited direct application to a particular election result within an individual constituency) does not seem to be an attractive course – not least because that might leave open a gap in the vindication of the law. Hence, in this context, I think dealing with the merits of the application will best serve the purposes of judicial review. 143.Further, whilst recognising that some evidence as might have been adduced may not be available, I do not think that materially hampers my ability to deal with the application properly on its merits (see below). F. Whether BL26 and/or BOR 21 are Engaged 144.It is convenient again to set out here the provisions of BL26 and BOR21. 145.It is noteworthy that BL26 appears in Chapter III of the Basic Law which is headed ‘Fundamental Rights and Duties of the Residents’. BL26 provides:
146.BOR21, headed ‘Right to participate in public life’, provides:
147.Mr Wong submits that the DCs continue to be a means by which members of the public take part in the conduct of public affairs, because by the newly introduced section 4A of the DCO the DCs will continue to serve a range of functions in (1) being consulted by the Government on “district affairs”, (2) serving as a means of communication between the people in the District at the Government when required, and (3) providing services and activities for people in the District. 148.Mr Wong submits that BOR21(a) – which relates to the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions, to take part in the conduct of public affairs, directly or through freely chosen representatives – is engaged. He cites Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459 at 473G-J (“Chan Wah (CFA)”), where Li CJ held that public affairs would cover all aspects of public administration, including at the village level. Li CJ also stated that the village representative should be regarded as engaged in the conduct of public affairs within BOR21, and that this is also reflected by the requirement that to become a village representative, the person elected has to be approved by a public official, in that case the Secretary for Home Affairs. 149.It seems to me that public affairs covering all aspects of public administration including at the village level, identify that it would also cover public administration at the district level, and it can be noted that candidates for election to the DCGCs have to obtain confirmation/approval by a public official or body, in the form of the ERC, and if elected are subject to ongoing supervision by the SHYA. 150.Reference can also be made to the briefing and information documents provided during the legislative reform process. In those documents, the Government sought to emphasise district administration as part of the HKSAR governance structure. Indeed, if it were not, it might be asked why there would be any need to ensure full implementation of the principle of ‘patriots administering Hong Kong’ at the district level. Further, it was stated that the DCs should play the role of complementing the Government, assisting the Government in keeping its finger on the pulse of the community so that the Government can have more effective planning of district services, in turn helping to foster social cohesion. Those matters all seem to me to identify that members of the DCs are fully engaged in what might be regarded as public affairs. 151.Mr Wong further cites Chan Wah v Hang Hau Rural Committee [2000] 1 HKLRD 411 (“Chan Wah (CA)”) at 433F-H, where Chan CJHC held that BOR21 covers both organs of power as well as consultative and advisory bodies. Such bodies would naturally include the DCs. It was emphasised at 433J that, while BOR21(a) confers a general right of participation in public affairs, BOR21(b) refers to one particular method of participation, i.e. the right to vote in and to stand for elections. The view was expressed at 434B-C – with which view I agree, even if it were not binding on me – that if BOR21(b) is to apply in Hong Kong at all, it would have to cover public collections at the regional and local levels. In that case, it would be construed to require that all persons within the same class or group to which a particular public election relates should have equal rights to vote in and to stand for such election – though those rights may be subject to reasonable restrictions. 152.Hence, I accept Mr Wong’s submission that the right to stand for election under BL26 and BOR21(b) is also engaged, because the right covers public elections at the regional and local levels, such that it would require all persons within the same class or group to which a particular public relates should have equal rights to vote in and to stand for such election, being elections of a public nature: see Chan Wah (CA) at 433J-434C and 437C-G. Reference can also be made to Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353 at §23(1), where it was held that BOR21(b) guarantees the free expression of the will of the electors, so that the right stand for election is directly linked to the interest of the electorate being given the widest choice of candidate, and for this reason the right ought not to be unduly restricted. 153.On the basis that any restrictions on the right to stand for election must be justifiable on objective and reasonable criteria, and should not act as a barrier to candidacy, Mr Wong submits that the Nomination Requirement clearly engages BL26 and BOR21, because:
154.Mr Suen submits that BL26 and BOR21 are not engaged. He says that the Chan Wah case in fact recognised that BL26 is clearly not referring to every type of election. He further cites Chan Yu Nam v Secretary for Justice (unreported, HCAL 32/2009, 10 December 2009) at §92, where it was held that BL26 gives the right to vote in accordance with law, where law in this context must include the Basic Law, and in particular Annex II. 155.In the case of the DCs, they are specifically governed by BL97 and BL98, which makes clear that the district organisations are not organs of political power, and that the formation of such organisations shall be prescribed by law. In other words, Mr Suen submits, the only requirement under BL98 is that the formation of the DCs is prescribed by law, and there is no other or overarching requirement imposed by BL26. 156.As Mr Suen points out, the DCs are not a political organ, and their members might in fact be entirely appointed. He refers to the fact that there is no challenge as to the appointed membership in the roughly 4:4:2 ratio as to the different constituencies within the DCs. Where BL97 and BL98 do not prescribe or require any election, Mr Suen says, then BL26 is not engaged. 157.There is some obvious logic and force in that submission in so far as it applies to the elements constituting the DCs which are the result of appointments – and, in that regard, that would apply to the directly appointed members of the DCs, as well perhaps as to those members of the DCs elected by the appointed 3Cs members who form the DCC. 158.But the question which arises is whether the logic is equally applicable to the element constituting the DCs which the Government has decided should be the result of an election process with universal suffrage participation amongst the general electorate. Put another way, once the Government has decided that there should be an election of a public nature, does that trigger the engagement of BL26 and/or BOR21? I think it does. 159.The Government has not suggested that the election is to be presumed as aimed at identifying the true will of the people through universal suffrage. That aim is to provide members of the DCs to assist with the district administration which is part of the HKSAR governance structure. As I have pointed out, if members of the DCs had no role in administering Hong Kong, they would not be a need for them to be confirmed as filling the requirement for ‘patriots administering Hong Kong’. 160.I am satisfied that BL26 and BOR21 are engaged. G. ‘Endorsement’ by CPG 161.In the Government’s original submissions, attention was drawn to the press release or comment issued by the HKMAO and the LOCPG on the same day that the Bill was passed. Reference was made to the Nomination Requirement, as part of the DC reform, having been thereby “endorsed” by the CPG. However, it seemed to me to be unclear as to what precisely was being argued as to their effect. That has been helpfully clarified by Mr Suen in his oral submissions. 162.He identifies that the HKMAO and LOCPG comments are in line with the decision of the NPCSC in improving the electoral system regarding the CE and LegCo (as now found in Annexes I and II of the Basic Law). This is because those provisions require candidates for the CE and LegCo elections to obtain the requisite nomination from the EC which itself includes (in the fourth sector) representatives of district organisations including the 3Cs – and that shows that the requirement to obtain relevant subscriptions from, amongst others, members of the 3Cs is constitutionally compliant, at least in that context. 163.Mr Suen also submits that those matters provide a good guide to the contemporaneous needs and circumstances, and as to modern views as to the current social and legal landscape, which is pertinent context to the Government’s reform of district administration in light of the deviation and disruption in the sixth-term DCs. In other words, what has been said upon the passage of the Bill by the HKMAO and the LOCPG provide some context for the current consideration of the constitutionality of the Nomination Requirement, as is raised in these proceedings. 164.But, the point is contextual. As Mr Wong correctly points out, both the HKMAO and the LOCPG are political organs, and neither have the power of interpretation of the Basic Law. 165.Ultimately, even in the correct context, the interpretation of the Basic Law and the question of constitutionality is not a political question. It is a legal question for the Court to determine: see, for example, Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFA 353 at §46. H. Proportionality Analysis H.1 The Test 166.As Andrew Cheung J (as the Chief Justice then was) commented in Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166 at §107, against a test previously noted in an observation by the Court of Final Appeal, “Hong Kong is indeed a democratic society”. 167.Incidentally, in the same case at §106, the now Chief Justice made the point that merely because only a proportion of the members of the elected body (in that case LegCo) is elected by universal suffrage, that does not mean that “universal suffrage” should bear a lesser meaning than what that expression requires in Western democratic societies. In the same paragraph, he went on to say:
168.On that basis, and though the mathematical translation may not be entirely apposite, it might perhaps also be argued that where only 20% of the DC members are elected by universal suffrage, that makes the right to vote (and to stand) five times more important and precious. 169.The rights to vote in and stand for election are indeed fundamental rights, crucial to establishing and maintaining the foundations of an effective and meaningful democracy. But they are not absolute. 170.Therefore, if BL26 and BOR21 are engaged, it is necessary to look at the settled four-step proportionality analysis/test. 171.That test is:
172.Those distinct elements of the analysis are not to be treated as existing in isolated airtight compartments, unaffected by each other. It is to be borne in mind that there is fluidity and flexibility in the proportionality concept, and the fact that its elements are conceptually interrelated and interdependent: see Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at §§59-60. Further, a provision which passes the rigours of the first three stages of the proportionality analysis will unlikely fail the fourth stage of the analysis, albeit that it is the fourth stage which takes full account of the severity of the deleterious effects of a measure on individuals or groups. As it was put in the Hysan case at §73:
173.The fourth step therefore requires the Court to examine the overall impact of the impugned measure and to decide whether a fair balance has been struck between the general interest and the individual rights intruded upon, the requirement of such a fair balance being inherent in the protection of fundamental rights. 174.It is also important to note that where a constitutional right is involved, the Courts will rigorously scrutinise the restrictions. But, the possible existence of extreme, difficult or borderline cases does not mean that the proportionality test cannot otherwise be justified. H.2 Some Further Principles 175.Further, constitutionality is not assessed in a vacuum, and must be assessed against the legislative history and the overall political development in Hong Kong. Neither context nor developments are static. Therefore, the restrictions which are under review – here the Nomination Requirement – are to be assessed against the proper circumstances pertaining at the time of the assessment. 176.The applicable principles might be summarised in the following way:
H.3 Standard of Review 177.It is appropriate to consider next the applicable standard of review be adopted, or the margin of appreciation that is to be accorded, to the impugned measure – remembering that the margin of appreciation is applicable to all steps in the proportionality test. 178.In Wong Ho Ming v Secretary for Justice [2020] 3 HKLRD 419, Chow J (as Chow JA then was) was considering another case relating to the right to stand for election, in the context of disqualifications from being nominated as a candidate arising from prior conviction. At §66, he accepted that the rights to vote and stand for election and to participate in public life protected by BL26 and BOR21 are important rights, but formed the view that the appropriate standard of review to be adopted in that case should be towards the lower end of the continuous spectrum of reasonable necessity (i.e. the “manifestly without reasonable foundation” standard). 179.He did so for reasons which included (but on the particular circumstances of the case were not limited to):
180.Indeed, there have been many other cases (which do not need to be listed) in which the different roles of the Executive, the Legislature and the Judiciary have been considered, which is the essence of the appropriate point on the sliding scale as to margin of appreciation or standard of review. For example, in Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353 at §42, Ma CJ agreed with the proposition that political decisions or legislative provisions reflecting political judgments are often precisely those areas where the courts are likely to afford a large margin of appreciation. In particular, where there has been active political debate on an issue or piece of legislation, the Court will be inclined to give a wider margin of appreciation. As it was stated, the reason for this is evident: the Courts are generally not equipped (certainly not better equipped than others) to determine political questions, although of course there are limits. 181.Mr Wong referred to §§38 and 45-46 in the same case, in support of the propositions that: (1) the nature of the writing question and the degree to which it has been encroached upon must be considered; (2) any encroachment on constitutionally guaranteed rights must be carefully scrutinised by the courts; (3) the margin of appreciation to be accorded is but one factor in the overall consideration by the Court of proportionality, where depending on the circumstances it may assume a greater or lesser degree of importance, and (4) while the views of the legislature are to be considered, it is the Court that has the ultimate responsibility to determine whether legislation is constitutional, because that is a matter of law, only for the Courts to determine. 182.On the particular facts of this case, Mr Wong submits that the degree of encroachment on the fundamental right to stand as a candidate for election, as arises from the restriction imposed by the Nomination Requirement, applies to every would-be candidate for the DCGCs, and that should influence the standard of review. 183.I take those matters into account but, on balancing the various features in the particular circumstances of this case which I have set out above, it seems to me that the appropriate standard of review or margin of appreciation is towards the lower end of the spectrum, namely towards the “manifestly without reasonable foundation” standard. H.4 Step 1: Legitimate Aim 184.As Mr Suen correctly submits, the legitimacy of an aim does not depend on the Court agreeing with it. The responsibility of the Court is from a legal point of view to see whether the stated aim is (1) identifiable and (2) legitimate in the sense that it lies within constitutional limits. 185.In Mr Chik’s affirmation at §54, he pointed to the briefing and information papers placed before LegCo which identify the Nomination Requirement as serving three purposes:
186.In his submissions, Mr Suen focused on the first two subparagraphs as sufficient to identify the aims. 187.In Mr Wong’s submissions, he defined or recast the matters canvassed by Mr Chik at both §§54 and 55 of his affirmation as including: (1) the Patriot Aim; (2) the District Familiarity Aim; (3) the District Collaboration Aim; (4) the Stability and Representation Aim; and (5) the District Participation Aim. However, there is no suggestion that any of these aims, however described, is not a legitimate aim. 188.Indeed, these aims are entirely consonant with what was recognised as a legitimate aim in the Wong Ho Ming case at §42: “maintaining public trust and confidence in … the offices of the District Council … character, honesty and personal integrity of persons elected to those offices … and the related electoral processes” (see above). 189.I am satisfied that these are legitimate aims. H.5 Step 2: Rational Connection 190.I do not think any authority is needed for the proposition that whether a measure is rationally connected with advancing a name is essentially a matter of logic and common sense. A rational connection is satisfied if the measure makes it less likely for the mischief to occur. Further, the fact that a measure may subsequently prove to be ineffective to achieve the aim does not in itself disprove rational connection (although it might have a bearing on the issue of whether the measure adopted is proportionate to the pursuit of the legitimate aim, and also the issue of reasonable balance). 191.I accept that the aims identified by the Government are logically furthered by the Nomination Requirement, because that requirement can reasonably be expected to contribute towards their achievement. 192.I accept that the Patriot Aim (as described above) is rationally connected, not least because the members of the 3Cs are trusted by the Government to act appropriately, or they would not have been appointed. The widely publicised main purposes of the reforms – including the Nomination Requirement – included to ensure the principle of ‘patriots administering Hong Kong’. I accept Mr Suen’s submission that common sense and logic support the conclusion that, when deciding whether to nominate any particular person, there would be a high degree of confidence and likelihood that the 3Cs members would bear the fundamental aims in mind, and would likely agree to nominate a candidate only if satisfied that this requirement is met. Indeed, this was amongst the points made plain in the template email (see above), and there was in any event significant media coverage which would have made the 3Cs additionally aware and mindful of their duties when exercising the nomination power. 193.For that reason, I also agree that it is unfair to suggest that the members of the 3Cs would exercise their nomination powers arbitrarily, instead of by reference to the aims and objectives already identified (a point to which I will return when considering the third step of the proportionality test). But there is in any event no challenge to the appointment of the members of the 3Cs by the SHYA, and there is no inference of arbitrariness to be drawn from the fact that the appointments are made at the SHYA’s sole discretion. The basis of the making of appointment has been fully explained 194.It also seems to me to be correct that, where the members of the 3Cs have been appointed because of their familiarity with and activities within the Districts, they might be regarding as having the ability to further the Familiarity and Stability and Representation aims. 195.I am satisfied of the rational connection of the Nomination Requirement to the legitimate aims. H.6 Step 3: Reasonable Necessity or Foundation 196.This was the main battleground at the hearing. 197.But before turning to the competing submissions, and the matters to be balanced on the assessment at Step 3, it is appropriate to mention the state of the evidence before the Court. One of the things which seems to me to be perhaps missing from the evidence – and it is something that I would have thought would, if at all, have been adduced by the Applicant not the Government – is any real and direct information as to why people from the ‘pan-democrat’ camp might not have obtained eligibility for candidacy. I note the anecdotal and indirect evidence provided by the Applicant, but he has not even provided evidence from members of the party of which he says he is a lifelong member. 198.There seem to me to be many reasons why the make-up of the candidates who have satisfied the Nomination Requirement do not include any or many ‘pan-democrats”. Of course, one possibility is that the members of the 3Cs have understood their obligations as requiring the exercise of discretion against nominating such people – though the open statements are that the only requirements are patriotism and familiarity with local affairs, irrespective of political affiliation. But other possible reasons include: (1) the person considers that he/she has contributed enough; (2) the person is not prepared, for whatever reason, to put himself/herself through the Nomination Requirement, even if that might lead to eligibility for candidacy; (3) the person assumes that he/she will not be able to meet the Nomination Requirement, so does not bother trying; (4) the person has tried but he/she has not been able to establish sufficient contact with members of the 3Cs; (5) the person has tried and has established some contact with members of the 3Cs, but he/she has not been able to obtain any or enough nominations; and (6) the person might have been a member of the sixth-term DC who resigned and did not want to stand again or was precluded from doing so. There may be other possibilities too. 199.I do not think it appropriate for the Court to speculate as to these various possibilities. 200.It is also in this context that it should be remembered that the Applicant is making a ‘first level’ constitutional challenge. This is where the “wait-and-see” approach adopted by the Applicant in deciding whether or not to lodge these proceedings counts against him. That approach embodies a recognition that the Nomination Requirement might nevertheless have led to a group of validly nominated candidates who might be regarded (at least by the Applicant himself) as sufficiently diverse and representative to permit genuine choice. 201.There is another related comment that can be made. Where the Government has made great play that the intention behind the reforms to district level administration is to depoliticise the DCs, it may be thought odd that many of the candidates who have satisfied the Nomination Requirement have sought votes from the electorate by reference to their membership of a political party. Many of them seem specifically to identify themselves as, and rely upon, their membership of political parties – and often the individual candidate seems to exhibit a photograph of him or herself next to the leader of that party, to show that party’s support. I suppose Mr Wong is correct when he says that every election is political. But, it may be political with a small ‘p’, and – not least against the Government’s stated intentions – need not be political with a big ‘p’. Hence the potential for some apparent tension between the stated intentions and the actualities. 202.Turning to the Step 3 assessment itself, Mr Wong in his oral submissions helpfully sought to highlight eight propositions to identify why the Nomination Requirement should fail that step, as follows:
203.Mr Wong submits that these are all weighty factors in the assessment of the necessity and reasonableness or proportionality of the Nomination Requirement. He invites the conclusion that the Nomination Requirement is unreasonable, excessive and discriminatory against persons not affiliated with the members of the 3Cs. Objectively, he says, the Nomination Requirement amounts to a barrier to candidacy and to free choice, let alone the “widest choice” referred to in the authorities. 204.Mr Wong also makes the point that the Applicant is making a narrow attack only against the Nomination Requirement (and not the reforms as a whole), and it is unrealistic to suggest that by striking down the Nomination Requirement that would somehow defeat the legitimate aims relied upon by the Government. He also submits that the concerns about the Nomination Requirement as were ventilated in the pre-enactment discussions did not really, or fully, meet the points which are being put forward by and for the Applicant (and, rather, dealt only with a narrow aspect of those concerns). 205.Lastly, Mr Wong makes the attractive point that if – as the Government seeks to emphasise – the DCs have no political function, but are merely advisory bodies at the district level, then elected members of the DCs should be regarded as having little power, hence only very loose restriction against their candidacy might be justified. 206.In response, Mr Suen makes the general point that the Nomination Requirement is not a disqualification requirement or a ban applicable to certain individuals, but is a requirement applicable to everyone, being every person who might wish to seek candidacy in the DCGCs. So, Mr Suen submits, there is in fact less encroachment than in some of the other cases/authorities. For my part, I do not think it helpful to identify whether it is a disqualification or something else, and the important point is simply to identify that it is a restriction on the fundamental right to stand for election, and whatever its label the degree of its encroachment can be assessed. 207.In response to Mr Wong’s eight points (see above), Mr Suen essentially made the following points:
208.My own view on the points is as follows:
209.I also reject the idea that LegCo did not even have in mind the fundamental rights which might be impacted by enacting the Nomination Requirement as part of the legislative reforms to the administration at district level. First, it seems to me to be inherently unlikely that reforms to the composition of the DCs, which involved variation to the existing electoral process, and the maintenance of some element of a continuing electoral process, were enacted with no consideration of the fundamental rights arising in that process. Secondly, in the various briefings and legislative considerations, there was clearly some recognition of what was called “retrogression in democracy” (i.e. reduction in or interference with voting rights and the ability to stand for election). Hence I reject the submission made by Mr Wong that there was no considered view. 210.Mr Suen also submitted as follows (and I have added my comment to each point in brackets):
211.In the final analysis, I have reached the conclusion that the impugned Nomination Requirement is not manifestly without reasonable foundation. Nor do I think would have reached a different conclusion if the standard of review were somewhat closer to the higher one of “no more than reasonably necessary”. H.7 Step 4: Reasonable Balance 212.It is settled that whether the Nomination Requirement can pass Step 4 requires the court, ultimately, to make a value judgment as to whether it operates on the Applicant/others in a similar situation with oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question. 213.I do not think this is a case where the analysis at Step 4 – and the additional balancing considerations which they are come into play – changes the conclusion reached that the close of the analysis of Steps 1 to 3. 214.In other words, in my view, and asking myself in particular whether the pursuit of the societal interest results in an unacceptably harsh burden on the individual a reasonable balance has been struck between the societal benefits of the restriction (the Nomination Requirement) and the inroads made into the constitutionally protected rights in BL26 and BOR21. I. Conclusion 215.Drawing together the above strands, I reach the following overall conclusions. 216.The application for leave to apply for judicial review is granted, with the necessary extension of time for so doing, because it appears to me – and should be evident from the lengthy discussion above – that the intended application for judicial review was reasonably arguable and had a realistic prospect of success. 217.However, the substantive application for judicial review is dismissed upon full consideration of the merits. 218.As to costs, I shall reserve all questions of costs to be determined by me on paper submissions to be filed after the parties have had an opportunity to consider this Judgment. In the circumstances, I see no reason why cost submissions need be staggered or sequential, and instead I shall simply direct that the parties should make their submissions on costs by filing those submissions at or before 4.30pm on 15 December 2023. I shall then proceed to make a separate Costs Ruling.
Mr Anson Wong Yu Yat and Mr Jonathan Ip, instructed by Kenneth Lam, for the applicant Mr Jenkin Suen SC and Mr Michael Lok, instructed by the Department of Justice, for the putative respondent, 1st and 2nd putative interested parties Glossary of Terms
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Cases cited in this judgment
Further hearings and rulings under HCAL 1978/2023