Chan Yu Nam v. The Secretary for Justice

FAMV No. 39 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2011 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 2 OF 2010)

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Between:

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FAMV No. 40 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 40 OF 2011 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 3 OF 2010)

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Between:

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Appeal Committee:Chief Justice Ma, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing: 18 January 2012

Date of Determination: 18 January 2012

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DETERMINATION

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Chief Justice Ma :

1.The applicants seek to challenge the constitutionality of permitting corporations to vote in the elections for functional constituencies of the Legislative Council.  Their cases have been dealt with together; their applications for judicial review were dismissed both at first instance[1] and in the Court of Appeal.[2] Leave to appeal having been refused by the Court of Appeal,[3] they now seek leave from the Appeal Committee, both on the basis that a question of great, general or public importance arises and also on the “or otherwise” ground.

2.The following question is put forward as being of sufficient great general or public importance to justify the grant of leave, namely:

“Whether sections 25 and 26 of the Legislative Council Ordinance, Cap 542, to the extent that they provide for voting in elections for the Legislative Council by corporations which are not under the control of Permanent Residents (“HKPRs”) and thus not permitting non-HKPRs to vote are inconsistent with Articles 26 and 39 of the Basic Law and Article 21 of the Hong Kong Bill of Rights provided in section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, are unconstitutional”.

3.The applicants rely principally on Article 26 of the Basic Law which provides:

“Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.”

4.Their essential argument is, as Stock VP put it[4]:

“...that art 26 not only ensures that permanent residents have the right to vote in elections in Hong Kong but precludes the legislature from conferring that right upon any others in any form of election in Hong Kong. The contention continues that since corporations are not natural persons and only natural persons can be permanent residents, the legislature is precluded from empowering corporations to vote.”

The argument is put in different ways such as that the effect of corporate voting is to dilute the rights of Hong Kong permanent residents in voting matters (either because non-permanent residents may be in the control of the relevant corporate voter or that corporations cannot be Hong Kong permanent residents at all or otherwise).  Counsel however expressly disavowed any attack on the constitutionality of functional constituencies.

5.That argument was rejected by both Courts below.  It was held that Article 26 did not preclude corporate voting in functional constituencies.  The Court of Appeal stated:

“What is clear is that art 26 is part of a mosaic which includes arts 45, 68 and Annexes I and II of the Basic Law the effect of which is that in the early years of Hong Kong’s new constitutional dispensation, there is room for participation through election in public affairs by all permanent residents but for a simultaneous continuation beyond 1997 of corporate participation in such affairs by or through major organizations and associations at elections.”[5]

5.    This conclusion is amply supported not only (and crucially) by these references to the Basic Law,[6] but also by the history of legislative constitutional development in Hong Kong and the relevant extrinsic materials identified by the Court of Appeal.[7]

6.While the question raised by the applicants at first blush appears to be important, the Court of Appeal refused leave to appeal on the basis that it was not reasonably arguable.  We respectfully agree.  There is also nothing in the “or otherwise” ground: the uncertainty argued by the applicants, in the context of the constitutional challenge in the present case, is illusory.  Leave to appeal is refused.

Ms Gladys Li SC and Ms Jocelyn Leung (instructed by Messrs JCC Cheung & Co. and assigned by the Legal Aid Department) for the applicant in FAMV 39/2011

Mr Hectar Pun and Mr Newman Lam (instructed by Messrs JCC Cheung & Co. and assigned by the Legal Aid Department) for the applicant in FAMV 40/2011

Mr Michael Thomas SC (instructed by the Department of Justice) for the respondent