Leung Chun Ying v. Ho Chun Yan Albert and Another
Read the full judgment text of FACV 24/2012 on BabelCite. This FACV judgment was delivered on 11 July 2013 before Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Gleeson NPJ.
Constitutional and administrative law – election law – Chief Executive election – Chief Executive Election Ordinance (Cap 569) – election petitions under Part 6 – relationship between election petition procedure under s.32 and judicial review procedure under s.39 – whether s.33 persons confined to election petition procedure – whether non s.33 persons excluded from relying on s.32(1)(a) or (b) grounds in judicial review – whether the absolute seven-day time limit in s.34(1) of the CEEO for lodging election petitions is unconstitutional as infringing the right of access to the courts under Article 35 of the Basic Law – margin of appreciation – costs of leave application hearings – unauthorised building works allegations against returned candidate – Mr Leung Chun Ying returned as Chief Executive on 25 March 2012 – Mr Ho Chun Yan Albert lodged election petition on 4 July 2012 and application for leave to apply for judicial review the following day – Mr Leung Kwok Hung also filed application for leave to apply for judicial review – First Issue: whether the election petition is the only means of challenging an election and whether the s.32(1)(a) and (b) grounds are the only available grounds – the Court held that the election petition is not the only means of challenge and the s.32(1)(a) and (b) grounds are not the only grounds – s.33 persons relying on s.32(1)(a) or (b) grounds are confined to the election petition procedure – but non s.33 persons are not automatically excluded from relying on those grounds in judicial review proceedings, subject to normal judicial review considerations – Second Issue: whether the absolute seven-day time limit in s.34(1) of the CEEO is unconstitutional – Article 35 of the Basic Law is engaged – but the absolute limit does not impair the essence of the right of access to the courts and is not unconstitutional – a margin of appreciation is owed to the legislature – the time limit forms part of a balanced scheme: the election petition procedure is the primary and most speedy means of challenge, available as of right to s.33 persons who have been intimately involved in the election – judicial review is a residual means of challenge with a 30-day (extendable) time limit – Australian authorities are distinguishable as Australia has no constitutional equivalent of Article 35 – Mr Ho's election petition should have been struck out as time-barred – Third Issue: costs order – the Court departed from the reasoning of the lower court on the substantive issues – costs order of 28 September 2012 set aside – no order as to costs substituted – order nisi that there be no order as to costs in the appeals.
Legal issues: Relationship between election petition procedure and judicial review procedure under CEEO · Constitutionality of the absolute seven-day time limit in s.34(1) CEEO · Costs order for leave application hearing
Outcome: Mr Leung's appeals in FACV 24 and 25 of 2012 allowed; the Secretary for Justice's appeal in FACV 27 of 2012 allowed; Mr Ho's appeal in FACV 1 of 2013 dismissed insofar as the 30 July 2012 order is concerned, but allowed insofar as the costs order of 28 September 2012 is concerned. Election petition proceedings by Mr Ho should have been struck out as time-barred under s.34(1) of the CEEO.
Cites 10 cases
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FACV 24, 25 / 2012 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NOS. 24 AND 25 OF 2012 (CIVIL) (ON APPEAL FROM HCAL NO. 85 of 2012) _______________________
and FACV 27/ 2012 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 27 OF 2012 (CIVIL) (ON APPEAL FROM HCAL NO. 85 OF 2012) ________________________________ BETWEEN
and FACV1/2013 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 1 OF 2013 (CIVIL) (ON APPEAL FROM HCAL NO. 84 OF 2012) _____________________
_____________________
_____________________ J U D G M E N T _____________________ Chief Justice Ma: A INTRODUCTION 1.The present appeals involve principally the determination of two important issues regarding challenges in elections for the Chief Executive under the Chief Executive Election Ordinance Cap 569 (“the CEEO”): first, the scope of election petitions under Part 6 of that Ordinance and their relationship to judicial review and other proceedings; secondly, the constitutionality of the absolute seven day time limit for lodging election petitions contained in s 34(1) of the CEEO. The first issue is predominately an exercise in statutory interpretation, the second is a constitutional issue involving the right of access to the courts under Article 35 of the Basic Law. This appeal also concerns an order for costs made in the course of the present proceedings and I shall identify that issue in due course. A.1 The procedural history 2.In the elections[1] for the Chief Executive held on 25 March 2012, Mr Leung Chun Ying (“Mr Leung”) was the returned candidate and he was publicly declared and gazetted[2] as such by the Returning Officer on 25 March 2012. The other candidates in the elections were Mr Ho Chun Yan Albert (“Mr Ho”) and Mr Henry Tang. 3.Following the election of Mr Leung, on 4 July 2012 Mr Ho lodged an election petition, followed the next day by a notice of application for leave to apply for judicial review[3], putting in issue whether Mr Leung was duly elected. The factual basis for both proceedings was the same, namely it was alleged that Mr Leung had made false or misleading statements in the course of the elections, this amounting to illegal conduct within the meaning of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”)[4] and also that this conduct amounted to his not being a “person of integrity, dedicated to his or her duties” for the purposes of Article 47(1) of the Basic Law. For reasons which will become apparent presently, it is unnecessary to elaborate on these factual aspects; it is sufficient merely to say that the allegations concerned certain unauthorized building works at the home of Mr Leung. 4.It should also be noted that on 5 July 2012, a notice of application for leave to apply for judicial review was also issued by Mr Leung Kwok Hung[5] challenging Mr Leung’s election as Chief Executive on substantially the same grounds as Mr Ho’s challenge. A.2 The judgments of Lam JA 5.The election petition and the applications for judicial review were all dealt with by Lam JA, and it is from the first three judgments that the present appeals before us emanate (but there is also a fourth judgment dated 5 October 2012, the relevance of which will become apparent below):-
6.Leave to appeal to the Court of Final Appeal was sought by all parties who were unsuccessful in the various applications I have referred to.[17] The applications for leave to appeal made by Mr Ho, Mr Leung Kwok Hung, Mr Leung and the Secretary for Justice (eight in all) were dealt with by the Appeal Committee[18] on 9 November 2012. In the Determination dated 13 November 2012, the Appeal Committee considered the question whether at the end of the day, even if the various jurisdictional issues raised in the applications were resolved in favour of Mr Ho and Mr Leung Kwok Hung, the allegations of false and misleading statements made by Mr Leung in relation to the unauthorized building works at his home were sufficiently arguable. The Appeal Committee concluded that no reasonably arguable grounds existed for appealing Lam JA’s decision dated 5 October 2012.[19] 7.The conclusion that the factual allegations raised were unarguable was sufficient to dispose of the challenges made by Mr Ho and Mr Leung Kwok Hung and thus rendered academic the other issues for which leave to appeal was sought. However, given the importance of some of the issues that were raised, the Appeal Committee decided that a sufficiently great public interest existed to grant leave even though the issues were, strictly speaking, academic.[20] Leave was accordingly granted on the following two issues:-
Leave to appeal was also given on the “or otherwise” ground to Mr Ho and Mr Leung Kwok Hung in relation to the costs order made by Lam JA on 28 September 2012.[21] This would seem to follow if leave to appeal was given in relation to the two main issues. A.3 The parties before the court 8.It was indicated at the resolution of the applications for leave that given the academic nature of the appeals to this Court as concerned them, it was open to Mr Ho and Mr Leung Kwok Hung to choose not to appear at the hearing of the present appeals. In the event, Mr Ho[22], Mr Leung[23] and the Secretary for Justice[24] are before us. Mr Leung Kwok Hung does not appear, not having proceeded with his appeal. We are grateful to all counsel for their assistance. 9.Before dealing with the three issues before us, I should first set out the relevant statutory provisions. B THE RELEVANT PROVISIONS IN THE CEEO 10.The two main issues in these appeals involve the construction of relevant provisions in the CEEO. It is convenient to set out the following provisions in full (I will of course be referring to other provisions as well in the course of this judgment):-
C. FIRST ISSUE: CHALLENGES IN A CHIEF EXECUTIVE ELECTION MADE BY ELECTION PETITION AND IN JUDICIAL REVIEW PROCEEDINGS 11.The issue as framed by the Appeal Committee[25] invite, first, a consideration of the election petition procedure and its ambit; and secondly, a consideration of the relationship between that procedure and the judicial review procedure envisaged under s 39 of the Ordinance.[26] It will be recalled that in the 30 July 2012 judgment[27], Lam J concluded that if any of the grounds set out in s 32(1)(a) of the CEEO was employed to challenge the election of someone as Chief Executive, this was available only in election petition proceedings and therefore unavailable as a ground of challenge in judicial review proceedings. For the reasons that follow, I am of the view that the Judge erred in this conclusion. In dealing with the First Issue, I recognize that it involves an exercise in statutory construction, the relevant provisions being those set out in Section B above. C.1 The Court’s approach to statutory interpretation: context and purpose 12.As has been reiterated recently by this Court[28], the proper starting point in statutory interpretation, as well as constitutional and contractual interpretation, is to look at the relevant words or provisions having regard to their context and purpose. 13.In the present case, the context and purpose of the relevant provisions earlier set out are principally these:-
C.2 The Scheme of Election Petitions and Judicial Review Proceedings under the CEEO 14.With this approach in mind, I now deal with the relevant provisions in the CEEO. 15.It is notable first that the provisions in the Ordinance regarding election petitions are very detailed[34]:-
16.Given this elaborate structure in relation to election petitions, the intention must have been for this procedure to be the primary and most speedy means of enabling challenges to be made questioning Chief Executive elections:-
17.Thus far, there is perhaps little controversy but the two important questions that remain to be answered involve a discussion of, first, how exclusive the election petition procedure is and secondly, its relationship with other proceedings relevant to the questioning of elections (here the discussion will center on the judicial review procedure). As will be seen, these questions are connected. 18.On the aspect of exclusivity, although it is not in dispute between the parties that only s 33 persons may lodge election petitions (to the exclusion of all other persons), three facets need to be considered:-
19.Common to the consideration of these three facets is the need to construe the effect of the word “only” contained in s 32(1) of the CEEO[38]. The word “只” also appears in the Chinese text of that provision. 20.If one looked in isolation at the language of s 32 of the Ordinance without considering context and purpose or the other provisions in the CEEO, there might be some justification to conclude that an election petition was the only means by which an election could be questioned or[39] that the only grounds to challenge an election were those set out in ss 32(1)(a) and (b). However, in my view, this is clearly not the position. My conclusion on the first two facets is that (i) the election petition is not the only means of challenging an election and (ii) the grounds set out in ss 32(1)(a) and (b) are not the only grounds based on which a challenge can be made to Chief Executive elections:-
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[44] 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:-
23.The above analysis disposes of the first two facets set out in para 18 above, but leaves open the question of the relationship of election petition proceedings to other proceedings in relation to the questioning of elections. This is the second main question under the First Issue, to which I now turn. 24.As stated earlier[49], in considering the ambit of the other proceedings referred to in s 39 of the CEEO, the parties have focused on the position of the judicial review proceedings rather than any other proceedings. I shall likewise deal with only the position of judicial review. The reference to judicial review in s 39 assumes that such proceedings can exist where they put in issue the matters specified in ss 39(1)(c) and (d)[50]. As the parties accepted, s 39 does not found the jurisdiction to institute these other types of proceedings; it merely assumes their existence. For judicial review proceedings, the foundation of the jurisdiction is s 21K of the High Court Ordinance Cap 4. Section 39 merely states that the usual three month time limit for judicial review proceedings[51] is reduced to 30 days after the date of the publication of the declaration of the election result under s 22(1AB)(d) or s 28 of the CEEO. 25.It would be neither desirable nor appropriate to embark on a general discussion of the ambit of judicial review in the context of challenges made to election results. Relevant to the present case, however, is an analysis of the relationship between judicial review and election petition proceedings. The Judge held (as far as Mr Ho was concerned) that judicial review was unavailable to him to make a challenge based on the grounds specified in s 32(1)(a)[52]. He also held (in the case of Mr Leung Kwok Hung) that judicial review proceedings were unavailable if a s 32(1)(a) ground was relied on. Lam J’s view was that where s 32(1)(a) grounds were relied on, the only proceedings where this could take place were election petition proceedings. Judicial review was therefore excluded if a s 32(1)(a) ground was relied on. 26.For my part, I would respectfully disagree with the Judge’s views on the relationship between election petition proceedings and judicial review proceedings. I have concluded earlier that the effect of ss 32 and 33 of the CEEO is that where s 33 persons wish to question an election on any of the grounds set out in ss 32(1)(a) or (b), they can only do so by an election petition and no other proceedings are available to them if such grounds are relied on.[53] It does not follow from this construction of those two provisions, however, that persons other than s 33 persons are somehow automatically excluded from claiming that an elected person should not be permitted lawfully to assume the office of Chief Executive on the basis that he or she was not properly elected by reason of one or more of the grounds set out in s 32(1)(a) or (b). Nothing in the CEEO automatically excludes the right of non s 33 persons from so relying on the grounds set out in s 32(1)(a) or (b). I refer back to the earlier discussion regarding the first and second facets. It seems odd automatically to exclude a non s 33 person from relying on a s 32(1)(a) or (b) ground. For example (as pointed out in argument by Mr Justice Gleeson NPJ), where corrupt conduct or illegal conduct was prevalent at an election[54] in circumstances where s 33 persons would obviously be reluctant to raise the issue, it seemed unsatisfactory if no one could then raise the point in judicial review proceedings. 27.Of course, whether or not a person will be able actually to rely on one or more of the grounds set at in ss 32(1)(a) and (b), or have the necessary locus standi, to found a claim for judicial review will depend on normal judicial review considerations. 28.In reaching this conclusion, I have not ignored the argument to the effect that to allow the judicial review procedure to be made available to non s 33 persons in this way might undermine the election petition procedure set out in the CEEO and thus potentially result in duplication and prolonging of proceedings concerning elections. After all, apart from anything else, it may be said that the time limit for instituting proceedings under s 39 is 30 days[55] (in contrast to the seven day limit for election petitions), and this may be extended as well.[56] In my view, it is important to highlight the following points in this context:-
29.In respect of the ability of s 33 persons to institute judicial review proceedings (the third facet referred to in para 18 above), it does not follow from the conclusion that they cannot institute judicial review proceedings on a s 32(1)(a) or (b) ground that they cannot under any other circumstances institute judicial review proceedings at all putting in issue whether a person elected in an election can lawfully assume the office of Chief Executive. In my view, they are able to institute such judicial review proceedings, as long as the ground relied on is not one of the grounds set out in s 32(1)(a) and (b) and provided they satisfy the usual requirements in judicial review proceedings. This conclusion also follows from the view I have earlier reached in relation to the second facet.[58] C.3 Conclusion on the First Issue 30.The views I have reached under the First Issue differ from the learned judge. They are, however, based on the true construction of the relevant provisions of the CEEO set out in para 10 above, bearing in mind the context and purpose of those provisions. Nevertheless, in terms of the actual result, the Judge was right to refuse leave to Mr Ho to commence judicial review proceedings. However, as regards Mr Leung Kwok Hung (although he has not pursued his appeal), the learned judge ought not to have, at that stage, refused leave to institute judicial review proceedings on the basis that Mr Leung Kwok Hung was not entitled to rely on a s 32(1)(a) ground to found his application for judicial review. However, as the Appeal Committee held in its Determination dated 13 November 2012, the factual assertions made by Mr Leung were unsustainable as a matter of law.[59] 31.I now turn to the constitutional issue. D SECOND ISSUE: CONSTITUTIONALITY OF S 34(1) OF THE CEEO 32.The relevant provision here is s 34(1) of the CEEO.[60] The seven day limit for the lodging of election petitions is an absolute one. There is no provision allowing the seven day limit to be extended. This is to be contrasted with the 30 day limit contained in s 39 of the Ordinance, which can be extended by the Court.[61] Mr Ho has consistently contended that this provision, if it is absolute in nature, is unconstitutional in denying the constitutional right of access to the courts. He relies on article 35 of the Basic Law (under Chapter III: Fundamental Rights and Duties of the Residents) which states that “Hong Kong residents shall have the right to … access to the courts…… for timely protection of their lawful rights and interests … and to judicial remedies.” As seen above[62], Lam JA agreed with Mr Ho’s position, but instead of striking down the provision (which would have had the effect of eliminating any time limit for the lodging of election petitions), he applied a remedial interpretation to s 34(1) so as to subject the seven day limit to the Court’s discretion to extend time. 33.In this part of the appeals, the appellants are Mr Leung and the Secretary for Justice. D.1 Is Article 35 of the Basic Law engaged? 34.At one stage in his submissions, Mr Thomas SC (for the Secretary for Justice) seemed to suggest that Article 35 gave no right of access to the courts at all, but this is plainly not the case, whether upon a simple reading of that article – it actually states there is “the right to … access to the courts” – or as a matter of substance. In Stock Exchange of Hong Kong Limited v New World Development Company Limited[63], Ribeiro PJ stated this to be the essence of Article 35 of Basic Law:-
In the context of elections, I have already remarked that an effective means of making challenges enables elections to have integrity and to be genuine, open, honest and fair.[64] This is buttressed by Article 35 of Basic Law which “gives life and practical effect” to these aspects. 35.Next, it was argued both by Mr Thomas SC and Mr Mok SC that Article 35 is simply not engaged in the present case. As I understand the argument, it proceeded along these lines: the right to question Chief Executive elections by election petition proceedings was introduced by those provisions contained in Part 5 of the CEEO, which included s 34(1); that provision was one of the provisions which merely defined the jurisdiction of the election petition procedure. Accordingly, seen in this light, this definition of the jurisdictional limits of the election petition procedure could not and did not engage any right of access to the courts, any more than say a definition of rights introduced by legislation. So the argument ran, the s 34(1) restriction had only to do with jurisdictional limits. 36.I must say that I have found it difficult to follow this argument. True it is that s 34(1) can be said in a way to define the jurisdiction of the right to institute election petition proceedings, but without doubt that provision also involves the question of access to the courts. In fact, it may be said that the provision is dealing precisely with the enforcement by persons of legal rights in the courts (the right to challenge elections by election petition). This, as the passage from Stock Exchange of Hong Kong Limited v New World Development Company Limited makes clear, is what Article 35 of the Basic Law ensures. 37.In support of their submissions, reliance was placed by Mr Leung and the Secretary for Justice on a number of authorities from Australia in which the courts have discussed time provisions[65], using language to suggest that such provisions only defined the limits of jurisdiction. It is unnecessary to refer to all these authorities; it suffices just to refer to the following:-
38.In the course of argument, it was pointed out by Mr Justice Gleeson NPJ, who it must be noted was the former Chief Justice of the High Court of Australia, that those cases were not concerned with any consideration of a constitutionally declaredright of access to the courts. There is no equivalent in the Australian Constitution[74] to Article 35 of the Basic Law although s 75(v)[75], which directly confers on the High Court original jurisdiction to issue constitutional writs against an officer of the Commonwealth, is a mainstay of the capacity of the judicial arm of government to enforce the rule of law. Those cases were more to do with the power vested in the Australian Parliament to make laws conferring jurisdiction on the courts.[76] In Abebe v The Commonwealth of Australia[77], where the High Court of Australia had to consider the lawfulness of statutory provisions which limited the ability of the court to examine the legality of decisions (of, again, the Refugee Review Tribunal), the principal issue, as stated in the joint judgment of Gleeson CJ and McHugh J was whether Parliament had the constitutional power to do so.[78] This required a consideration of s 77(i) of the Australian Constitution. In Hocine, the court was faced with an argument that bore some resemblance to the concept of access to the courts but, as I have said, there is no such constitutional right expressed in the Australian Constitution. 39.This is the distinguishing feature in the Australian cases to which we have been referred and it is in my view a critical distinction. In Hong Kong, where Article 35 of the Basic Law articulates this right, the approach of the court will be different. Here, the approach of the court will find more similarity in the way the question of time limits was dealt with in Miller v Bull[79] where Tugendhat J tested the time provision in that case[80] against Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the right to a fair trial). 40.In my view, the right of access to the courts is engaged in the present case. But has it been infringed in the case of s 34(1) of the CEEO? D.2 Is Article 35 of the Basic Law infringed? 41.I have earlier referred to the essence of the right of access to the courts contained in Article 35 and the buttress it provides to the integrity of elections.[81] There is no doubt that s 34 of the CEEO can be regarded as placing restrictions on that right. But whether such restrictions amount to an infringement of that constitutional right depends on whether on analysis the essence of the right has been impaired. In the context of the right of access tocourt, the European Court of Human Rights has said that the right is not an absolute one and any restrictions placed on it must be examined to see whether the essence of the right has been impaired.[82] This analysis has been applied in Hong Kong in relation to the right to marry contained in Article 37 of the Basic Law.[83] 42.The question of whether s 34(1), if absolute in preventing an election petition being lodged beyond the seven day limit, impairs the essence of the right of access to the courts, must be seen in context. The context of that provision is that it is but part of a whole scheme regarding election petitions. This scheme is an elaborate one as we have seen[84], restricting the class of persons entitled to use that procedure to the s 33 persons[85] but it has the important feature of allowing election petitions to be lodged as of right without the need for leave to be obtained. 43.I have also earlier mentioned the need for any proceedings questioning an election to be dealt with speedily. This is obviously the purpose of s 34(1) and on this basis, in the context of the scheme as a whole, it does not seem to me disproportionate to impose a seven day limit. Although a tight one, given that the class of persons entitled to lodge election petitions proceedings are those who can be expected to have been intimately involved in an election right from the start and who can therefore be expected to pay close attention not only to their own election activities but also the activities of their opponents, the limit is not unduly short. Certainly, Lam JA was of the view that the seven day limit was not “so short that it would not be possible to comply with [it].”[86] I would also add that it is more or less in line with the limits imposed for similar proceedings in other jurisdictions. In his judgment, Lam JA described the position in other jurisdictions[87]:-
44.The last sentence of that passage is of note in that it is by no means unusual for time limits for the institution of proceedings questioning an election to be non-extendable, just as in the case of s 34(1). For the same reasons as indicated earlier, I do not regard as objectionable this feature of s 34(1). 45.There is also the consideration of the margin of appreciation which can be accorded by the court to the legislature. This aspect has been considered by the courts in a number of cases. In Fok Chun Wa v Hospital Authority, this Court emphasized the point that the concept of margin of appreciation reflected the different constitutional roles of the judiciary on the one hand, and the executive and legislature on the other.[88] In the context of election law, this difference in roles must be borne in mind. I have earlier discussed the role of the judiciary when dealing with the engagement of Article 35 of the Basic Law[89] in the present case. Elections, however, also involve political and policy considerations and it is in these areas where the legislature is involved. The determination that seven days is the appropriate limit for the lodging of election petitions is one that does involve considerations other than legal ones. A due margin of appreciation should be accorded in the present case. Mr Lee SC relied on those passages in Fok Chun Wa in which this Court made references to core values and fundamental concepts[90], but the right of access to the courts is not an unlimited one, particularly in the present context. 46.The main reason for the Judge making a finding that s 34(1) infringed Article 35 of the Basic Law was basically that he could not reconcile the seven day non-extendable time limit in that provision with the more generous time limit in s 39 (30 days which could be extended). He regarded this as a fundamental flaw in the legislation. Reference was made to Charles Mok 1 where, in the context of the Legislative Council election under the Legislative Council Ordinance[91], the Court remarked on the incongruity of the unavailability of an appeal mechanism for election petitions under that Ordinance contrasted with the availability of appeals in other proceedings under that Ordinance[92] to challenge the qualification of the members of the Legislative Council.[93] Given this fundamental flaw, according to the Judge, any margin of appreciation that might otherwise have been accorded was of no significance. 47.I am, with respect, unable to agree with the Judge’s reasoning:-
48.Mr Lee SC also made a submission to the effect that the inflexible time limit in s34(1) had the potential of causing injustice where (and he used the present case as an illustration), the facts supporting one or more of the grounds in s 32(1)(a) of the CEEO, were not discovered until after the seven day time limit had expired. He gave as an example the ground set out in s 32(1)(a)(iv), being illegal conduct based on election expenses.[95] Since returns for election expenses in Chief Executive elections do not have to be lodged until 30 days after the publication of the election result[96], it may be well past the seven day deadline before any such illegal conduct could be discovered. 49.Admittedly, it is possible for these situations to arise but in my view it does not follow from this that the seven day limit becomes then objectionable from a constitutional point of view. First, where a line is drawn, it is inevitable that there may be hard cases that would arise when persons fall within the wrong side of the line.[97] Secondly, it must be borne in mind in the present context that if a situation were to arise where one or more of the grounds in s 32(1)(a) or (b) only came to light after the seven day period, the election petition procedure does not provide the only means of redress. The existence of judicial review proceedings (although not open to s 33 persons on the s 32(1)(a) or (b) grounds); the possibility of criminal proceedings under, say, ECICO; proceedings under Article 73(9) of the Basic Law; or simple political realities, are all relevant to be considered in this context. D.3 Conclusion on the Second Issue 50.The appeals by Mr Leung and the Secretary for Justice must accordingly be allowed. The election petition proceedings instituted by Mr Ho ought to have been struck-out on the basis that they were barred by s 34(1) of the CEEO. E THIRD ISSUE: THE COSTS ORDER OF 28 SEPTEMBER 2012 51.Both the main protagonists in relation to this part of the case, Mr Ho and Mr Leung, were agreed that the principles to be applied were those contained in Sky Wide Development Limited.[98] Although Mr Thomas SC for the Secretary for Justice in his written Case questioned whether the applicable principles regarding costs in contested applications for leave to institute judicial review proceedings were those as stated in Sky Wide Development Limited, I do not regard the present case as an appropriate occasion to go into this question. Apart from the agreed position of Mr Ho and Mr Leung, I am in some doubt as to whether the Secretary for Justice has locus standi to argue in this appeal at all, he having all along taken a neutral view on costs. 52.This appeal can be quickly disposed of. We have differed from the reasoning of the learned judge in the 30 July 2012 judgment. Although the effect is the same in that it was correct that leave to institute judicial review proceedings should not have been given to Mr Ho, I have not fully accepted the submissions made by Mr Leung or the Secretary for Justice. In the circumstances, the correct order for costs should be that no order for costs be made. F CONCLUSIONS ON THE APPEALS 53.The appeals giving rise to the two main issues are, as stated earlier, academic but leave to appeal was given on them by the Appeal Committee in view of their importance. It followed from the giving of leave to appeal on the two main issues that leave to appeal should also be given in relation to the Third Issue. 54.The formal orders following the resolution of the three issues should be as follows:-
55.As for the costs of these appeals, both Mr Leung and Mr Ho have to an extent succeeded but also failed in relation both to outcome as well as in their submissions on various issues. The Secretary for Justice maintained a neutral position in relation to costs in these appeals. In the circumstances, I would make an order nisi that there be no order as to costs in these appeals. If any party wishes to have a different order for costs, written submissions should be served on the other parties and lodged with the court within 14 days of the handing down of this judgment, with liberty on the other parties to lodge written submissions within 14 days thereafter. In the absence of such written submissions, the order nisi will stand absolute at the expiry of the time limited for such submissions. Mr Justice Chan PJ: 56.I agree with the judgment of the Chief Justice. Mr Justice Ribeiro PJ: 57.I agree with the judgment of the Chief Justice. Mr Justice Tang PJ: 58.I respectfully agree with the judgment of the Chief Justice. Mr Justice Gleeson NPJ: 59.I agree with the judgment of the Chief Justice.
Mr Johnny Mok SC and Mr Abraham Chan instructed by Sit Fung, Kwong & Shum for Mr Leung Chun Ying, the Appellant in FACV 24, 25 of 2012, the 1st Respondent in FACV 1 of 2013 Mr Michael Thomas SC, Mr Stewart KM Wong SC and Mr Jin Pao instructed by the Department of Justice for the Secretary for Justice, the Appellant in FACV27 of 2012 Mr Martin Lee SC, Mr Hectar Pun, Mr Jeffrey Tam and Mr Carter Chim instructed by Lam and Lai for Mr Albert Ho, the Respondent in FACV24, 25 and 27 of 2012, the Appellant in FACV 1 of 2013 [1] Under the CEEO, the Chief Executive is elected by an Election Committee, the constitution of which is set out in Part 3 of the Ordinance. Voting by members of the Election Committee is governed under Part 5. [2] Pursuant to s 28(2) of the CEEO. [3] Mr CY Leung was named as the 1st Respondent in both proceedings. The 2nd Respondent was the Returning Officer for the relevant election. It was the declaration made on the 25 March 2012 that was the relevant decision challenged in both proceedings. The Returning Officer is a required party in election petitions: s 35 of the CEEO. The Returning Officer has effectively taken no part in the proceedings to date and did not participate in the present appeals. [4] Such conduct is a ground by which an election of the Chief Executive may be questioned: ss 32(1)(a)(iv) and (2) of the CEEO. [5] Mr Leung Kwok Hung is a member of the Legislative Council and was a member of the Election Committee for 2012 Chief Executive Elections. Though participating in the hearings in the court below, for reasons that will presently appear, he took no part in the appeals before us. [6] Although such applications for leave are usually dealt with on an ex parte basis, the judge heard submissions made on behalf of Mr Leung and also from the Secretary for Justice who had intervened in the proceedings. [7] As he then was. [8] This issue is no longer before the Court. [9] As he had become. [10] The Secretary for Justice had also intervened in these proceedings in view of the importance of the legal issues raised. [11] Under s 34(1) of the CEEO, an election petition questioning an election has to be lodged within seven working days after the day on which the result of an election is declared under s 22(1AB) or s 28. Mr Ho had lodged the election petition only on 4 July 2012, well after the seven day limit. [12] See HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, at paras 67-69 (608D-611E). [13] Accordingly, on this basis, the Judge indicated that Mr Albert Ho should be given an opportunity to apply for an extension of time to lodge the election petition. [14] See sub-para (1) above. [15] The rule appears to be that usually no order as to costs is made even where a putative respondent (in the present case Mr CY Leung) successfully resists leave being granted, unless there are good reasons or unusual circumstances to suggest the contrary: see Sky Wide Development Ltd v Building Authority [2011] 5 HKLRD 202. [16] The Secretary for Justice had undertaken when he intervened that he would at no stage be seeking costs orders. [17] Under s 22(1)(c) of the Hong Kong Court of Final Appeal Ordinance Cap 484. [18] The Chief Justice, Ribeiro and Tang PJJ. [19] Para 5(4) above. [20] See Secretary for Security v Sakthevel Prabakar [2003] 6 HKCFAR 397, Yeung Chun Pong v Secretary for Justice, FAMC 101 of 2005, 2 March 2006 and Chit Fai Motors Company Limited v Commissioner for Transport [2004] 1 HKC 465. [21] Para 5(3) above. [22] Represented by Mr Martin Lee SC, Mr Hector Pun, Mr Jeffrey Tam and Mr Carter Chim. [23] Represented by Mr Johnny Mok SC and Mr Abraham Chan. [24] Represented by Mr Michael Thomas SC, Mr Stewart Wong SC and Mr Jin Pao. [25] Para 7(1) above. [26] Section 39 of the CEEO refers to both judicial review and “other proceedings” but no party in the present appeals has addressed the Court on any type of proceedings other than judicial review. [27] Para 5(1) above. [28] See Vallejos Evangeline Banao v Commissioner of Registration, FACV Nos 19 and 20 of 2012, 23 March 2013, at paras 76 and 77; Fully Profit (Asia) Limited v The Secretary for Justice, FACV 17 of 2012, 13 May 2013, at paras 15 and 16. [29] Annex I to the Basic Law originally made reference to the Election Committee comprising 800 members. By an Amendment to Annex I approved by the Standing Committee of the National People’s Congress on 28 August 2010, the number of members was increased to 1,200 persons. [30] In the context of elections to the Legislative Council making this point, see Mok Charles Peter v Tam Wai Ho [2012] 3 HKC 398 at paras 17 and 18 (408D-G). I shall refer to this decision as Charles Mok 2. [31] Article 43 of the Basic Law. [32] Article 48(1) of the Basic Law. [33] (2010) 13 HKCFAR 762, at para 51(2) (786). I shall refer to this case as Charles Mok 1. [34] Part 5 of the CEEO is headed “Election Petitions” although other proceedings are also referred to. [35] See ss 22(1AB), 23, 26A and 28(1) of the Ordinance. [36] Where a single candidate is not returned at an election. [37] Where, in the case of multiple candidate elections, the winning candidate is returned. [38] The word “only” is also used in the heading to s 32 but headings have no legislative effect: s 18(3) of the Interpretation and General Clauses Ordinance Cap 1. [39] As Lam J held in the 30 July 2012 judgment. [40] Such as a failure publicly to declare that he or she is not a member of a political party and to give an appropriate undertaking to this effect (s 31 of the Ordinance). Or, subsequent to the election, he or she acquires a right of abode in a foreign country (s 13(c) of the CEEO; Article 44 of the Basic Law). [41] Set out in paras 10(1) and (2) above. [42] Under s 32(1)(b). [43] Section 39 is silent on the available grounds. [44] The s 32(1)(b) ground was obviously unavailable since the 2012 election was a multi-candidate election. [45] Although it has similarities to the election petition procedure under the Legislative Council Ordinance Cap 542, the District Council Ordinance Cap 547 and the Village Representative Election Ordinance Cap 576. [46] Section 34(1) of the CEEO. [47] And the threshold for obtaining leave is by no means an easy threshold to overcome since there has to be a reasonably arguable claim which enjoys a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. [48] See para 13(3) above. [49] Para 11 footnote 26 above. [50] Section 39(1) is set out in para 10(2) above. [51] See Rules of the High Court Order 53 Rule 4(1). [52] It will be recalled that Mr Albert Ho’s challenge was based on s 32(1)(a)(iv) of the CEEO: see para 3 footnote 4 above. [53] See para 22 above. [54] Section 32(1)(a)(vi) of the CEEO. [55] Section 39(1) of the CEEO. [56] Section 39(2) of the Ordinance. [57] See para 16 above. [58] Para 20(2) above. [59] Para 6 above. [60] This provision is set out in para 10(2) above. [61] See s 39(2) of the CEEO. [62] Para 5(2) above. [63] (2006) 9 HKCFAR 234, at paras 49-50 (255G-256B). [64] Para 28(3) above. [65] Such as s 34(1) where time limits were prescribed for the institution of proceedings or for some other court process to be commenced. [66] (1962) 108 CLR 471, at 488. [67] (1995) 184 CLR 265, at 277. [68] (1999) 197 CLR 500. [69] At para 11. Reference was made to that passage in Australian Iron and Steel Limited v Hoogland referred to in sub-para (1) above. [70] (2000) 99 FCR 269. [71] At para 43(3). [72] At para 45. [73] At para 46. [74] This is a reference to the Commonwealth of Australia Constitution Act 1900. [75] Section 75(v) states:- “75. Original jurisdiction of High Court In all matters: ……
the High Court shall have original jurisdiction.” [76] This power vested in Parliament is referred to in ss 76 and 77 of the Constitution, which states:-
[77] (1999) 197 CLR 510. [78] At para 1. [79] [2010] 1 WLR 1861. [80] The time to serve a notice of the amount a nature of the security given in relation to an election petition. [81] Para 34 above. [82] Zwiazek Nauczycielstwa Polskiego v Poland (2005) 41 EHRR 21, at para 29. See also Ashingdane v United Kingdom (1985) 7 EHRR 528 at para 57; Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, at para 59 (both these cases were referred to for this purpose in Ng Yat Chi v Max Share Limited (2005) 8 HKCFAR 1, at para 75). [83] W v The Registrar of Marriages, FACV 4 of 2012, 13 May 2013 at paras 68,69 and 108. [84] Paras 15 and 16 above. [85] Being the class of persons most likely to be affected by an adverse election result and therefore most likely to take action: para 16(1) above. [86] The 12 September 2012 judgment at para 109. [87] In para 84 of the judgment. [88] [2012] 2 HKC 413, at para 64. [89] Para 36 above. [90] Fok Chun Wa at paras 77 to 79. [91] Cap 542. [92] Namely s 73 of the Legislative Council Ordinance. [93] Para 68 of the judgment in Charles Mok 1. [94] In this latter respect, see para 28(3) above. [95] Contrary to s 24(1) of ECICO. [96] Under s 37(2)(a)(ii)(A) of ECICO. [97] See Fok Chun Wa at para 71. [98] See para 5(3) footnote 15 above. [99] Relating to the Second Issue. [100] Relating to the Second Issue. [101] Relating to the First and Third Issues. |
Cases cited in this judgment