Re District Board Election

HCMP000744/1982

M.P. No. 744 of 1982

Election petition - s. 33(1) Electoral Provisions Ordinance (No.43/81) is mandatory and not directory and so a petition signed by the solicitors for the petitioners and not by the petitioners themselves is incompetent and must be struck out.

No. 744 of 1982

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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Coram: Fuad, J.

Date: 6 May 1982

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ORDER

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[Transcription of oral order]

1. This is an application for directions under s.36 of the Electoral Provisions Ordinance (No.43 of 1981) in relation to security for costs for an election petition. The petition seeks to question the election of a Mr. Chow Choi Kwei who was declared to be elected, on the 5th March 1982, at the District Board election for Lamma and Po Toi Constituency of the Island District Board. When the matter came before me I drew the attention of Counsel who appeared for the petitioners to the provisions of s.33(1) of the Ordinance, which is in the following terms:-

"33(1) An election petition shall be signed by the petitioner or by each petitioner if there is more than one and shall be presented to the Court by leaving the petition, together with 2 copies thereof, with the Registrar who shall give a receipt therefor, if required so to do."

I did so because the petition dated the 3rd May 1982 was signed only by the solicitors for the petitioners. Counsel frankly acknowledged that he had not been aware of the failure to comply with the provisions of sub-section (1) of s. 33 of the Ordinance, and offered to give an under-taking that all the petitioners would sign the petition within the next two days. He submitted that this would meet the difficulties that have arisen. I am sorry to say that I do not think that the course he proposes is acceptable. The provisions of s.33(1) are very clear and in my judgment they are mandatory acid not directory in form. Many examples can be given but one has only to contrast those provisions with rule 12 of the Matrimonial Causes Rules to show that the legislature intended that only a petitioner may sign an election petition. The rule allows (depending on the circumstances) a petition for divorce to be signed by the petitioner or by counsel if he settles the petition, or by the solicitors for the petitioner, if he or she is not acting in person.

2. I conclude therefore that the petition was not properly presented and should not have been accepted in the Registry. I intend no criticism of anyone involved in this because so far as I am aware this is the first election petition that has been filed, and perhaps no one was aware of the requirements of s. 33(1) of the Ordinance. In these circumstances I cannot accede to the Counsel's request to continue hearing the application relating to security for costs. The petition as now presented must be struck out as incompetent, and I think it would be right if the matter ends here, and my order stands, that the intending petitioners should be refunded the $400 fee paid on filing their petition.

3. I appreciate that my decision might well result in the petition not being heard in view of the time limits prescribed in s. 35(b) of the Ordinance, but since the language of s. 33(1) is express, I have no alternative but to strike out the intended petition as it stands today.

Representation:

Mr. Wally Yeung instructed by C.Y. Kwan & Co. for Petitioners.