LAU SAN CHING v. APPOLLONIA LIU

HEADNOTE

District Board elections - Electoral Provisions Ordinance - Decision of returning officer that nomination paper invalid challenged by proceedings for judicial review.

Held (by majority): The challenge by the excluded candidate is an averment of "material irregularity relating to [an] election" and can only proceed by way of an election petition presented in accordance with s.31 of the Ordinance. Further, Reg.9(7) of the Boundary and Election Commission (Electoral Procedure)(Geographical Constituencies) Regulation is intra vires the rule-making powers of the Commission and achieved the same result.

Per Godfrey J.A.: judicial review is an alternative procedure open, before the date of the election, to an excluded candidate but the High Court should be extremely slow to exercise its powers to intervene in the election process; in the circumstances of the present three cases the judge would have been right to dismiss the applications for judicial review as a matter of discretion.

IN THE COURT OF APPEAL

1994, No. 159
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. We have before us three consolidated appeals. They concern the District Board elections due to take place on Sunday 18th September this year. Each of the appellants has been nominated to stand as a candidate for election but his nomination paper has in each case been rejected by the Returning Officer concerned as invalid on the ground that he is not qualified for nomination as a candidate under s. 18(2) of the Electoral Provisions Ordinance, Cap.367. Section 18(2) states:

"No elector shall be qualified for nomination as a candidate or for election unless he has ordinarily resided in Hong Kong for the 10 years immediately proceeding the date of his nomination."

2. The decision that Mr. Lau San Ching, the appellant in Civil Appeal No.159 of 1994, was disqualified was communicated by letter dated 11th August, 1994; in the case of Mr. Eric Chan Po Ming, the appellant in Civil Appeal No.160 of 1994, it was communicated by letter dated 12th August, 1994, in the case of Mr. Richard Fung Chan Ki, the appellant in Civil Appeal No. 161 of 1994, it was communicated by letter dated 20th August 1994.

Judicial Review Proceedings

3. Having obtained the leave of the High Court to challenge those decisions by proceedings for judicial review, the appellants' applications were heard by Mayo J. over a period of five days. By his decision dated 2nd September, given immediately on the conclusion of the hearings, the judge dismissed the applications. He held that having regard to s. 30(2) of the Electoral Provisions Ordinance and of Reg. 9(7) of the Boundary and Election Commission (Electoral Procedure) (Geographical Constituencies) Regulations, the High Court had no jurisdiction to entertain applications for judicial review and that the only way whereby candidates could challenge the decision of the Returning Officer was by way of an election petition presented after polling had taken place and the successful candidate had been declared.

4. Section 30 of the Electoral Provisions provides as follows:

"30. Power to question election by election petition

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

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

(I) his disqualification under section 19; or

(ii) ...............

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

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

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

The Parties' Contentions

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

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

The Statutory Scheme

7. I turn, therefore, in the first place to Part II of the Regulations headed "Stages of Election Preceding a Poll". Under Reg. 3, the process begins when a notice is published in the Gazette and for that purpose the Chief Electoral Officer fixes a date when polling is to take place. He also specifies the period during which nominations for candidates may be received by the returning officers.

8. Under s. 24 of the Electoral Provisions Ordinance, the function of a returning officer, once appointed, is to supervise the election in the constituency or district for which he is appointed. Under Reg. 6 the nomination paper is required to be returned by the candidate to the returning officer within the time specified; the returning officer then discharges his or her functions of supervision under that regulation. This might include making further inquiries of the candidate, to enable a determination as to the validity of the nomination to be made.

9. Regulation 9(3)(c) then provides:

"Without prejudice to section 18 of the Electoral Provisions Ordinance the returning officer may decide that a nomination paper is invalid if, and only if-

(a) ........................

(b) ........................

(c) the returning officer is satisfied that the candidate is not qualified to be or is disqualified from being nominated as a candidate under the Electoral Provisions Ordinance."

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

Wider Arguments

11. In reaching my conclusion I have not considered it necessary to ask myself why in the unreported case of Sanders delivered on 20th May this year Mr. Justice Sedley held that under the Representation of the People Act 1983 the "ouster clause" was not absolute and unqualified, and that judicial review was not absolutely barred.

12. Much time has been taken in argument, and I make no complaint in that regard, in envisaging the various scenarios in which an "unlawful" decision of a returning officer in excluding a candidate might be redressed. The argument is put thus: Would it not be better to have a wrong decision redressed swiftly by judicial review, before polling takes place, rather than to leave the whole flawed process to go through and then to have the successful candidate's election declared invalid upon the hearing of an election petition? To my mind there are strong arguments both ways. As the experience of the courts have shown, judicial review proceedings are not necessarily swift and sure. They are open to appeal to this court and the whole judicial process can take considerable time and, as Mr. Marshall submits in argument, an application for judicial review is subject to the three-tier process: a decision of this court can be taken ultimately to Her Majesty in Council. Contrast the position of a challenge by way of an election petition: under s.37(1)(c), the determination of the court is "final as to the matters at issue on the election petition".

13. Since the regulations have laid down time limits for the various stages for an election to proceed, any intermediate judicial proceeding could have unexpected and perhaps the most deleterious effect. Assume for instance that a High Court judge in judicial review proceedings upheld the decision of a returning officer and declared that the nomination paper is, as he had determined, invalid. The candidate is entitled to appeal to this court. Can this court be convened at short notice? If the appeal is allowed, is the election in the relevant constituency then to be postponed? What are the mechanisms for postponing an election in these circumstances? Who is to make the act of judgment to postpone? The Ordinance is silent on these matters. If there were somehow to be a postponement, what might the other candidates who have been canvassing for some time say about such a proceeding? In my judgment the merits of judicial review, advocated so strongly by Miss Gladys Li, are not as clear as she had suggested.

Conclusion

14. My view of the statutory scheme, excluding any challenge by way of judicial review, is reinforced by the provisions of Reg. 9(7) of the Boundary and Election Commission (Electoral Procedure)(Geographical Constituencies) Regulation which state:

"The decision of the returning officer that a nomination paper is valid or invalid is final and shall not be questioned in any proceeding whatsoever except by an election petition."

This regulation is part of the comprehensive code made by the Boundaries and Election Commission under its rule-making powers.

15. The Commission is constituted by statute to be responsible for the conduct and supervision of elections and these include supervising the registration of electors and all promotional activity relating to such registration, regulating the procedure for an election, making other electoral arrangements and taking such steps as are considered appropriate for the purpose of ensuring that an election is conducted openly, honestly and fairly.

16. Section 7(1)(b) of the Boundary and Election Commission Ordinance confers on the Commission powers to make regulations providing for:

"(b) the conduct or supervision of, and procedure at, an election"

Further, s.7(1)(j) empowers the Commission to make regulations providing for "the carrying into effect of .... Part V of the Electoral Provisions Ordinance". It is in Part V of the Ordinance that we see s.24(1), empowering the returning officer to supervise an election generally. It seems to me clear that Reg. 9(7) merely details a specific power with regard to nomination papers: within the ambit of powers conferred generally on the returning officer under Part V of the Ordinance to supervise an election: his determination of the validity or invalidity of a nomination paper is final unless over-ruled by the court under s.37(1).

17. For my part, therefore, I cannot see how it can be argued that Reg. 9(7) is ultra vires the powers of the Commission as Miss Gladys Li has argued.

18. In my judgment Mayo J. came to the right conclusion and I would therefore dismiss these appeals.

Godfrey, J.A.:

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

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

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

22. I turn to the present case. It seems to me this is a case in which there are cogent reasons for refusing these applicants the remedy of judicial review, not because it is unavailable, but because it would be wholly impracticable at this late stage of the electoral process to grant them the relief which they seek. There simply is not the time to start and complete the whole process again before the date fixed for the election. No injustice will be done to the applicants by refusing them a judicial review; I am quite satisfied that the election court will be perfectly able to decide the points of substance which have been aired before us when their election petitions come to be heard. If the election court comes to the view that the nomination papers lodged by each of these applicants were improperly rejected all the elections in which the applicants had sought to be candidates will have to be declared void, and new elections held.

23. I do not think it right for this court to pre-empt any decision that the election court may make but I do think it necessary to mention the grounds on which these applicants' cases have been urged before us.

24. First, it is said that the Bill of Rights Ordinance, Cap. 383 has effected a repeal of s. 18(2) of the Electoral Provisions Ordinance, Cap.367, which provides for a qualification for the nomination of a candidate for election. No elector is to be qualified for nomination as a candidate for election unless he has ordinarily resided in Hong Kong for 10 years immediately preceding the date of his nomination. The Bill of Rights (Article 21) provides that there shall be no "unreasonable restrictions" on the right of a candidate to stand for election. So the issue for the election court will be whether this qualification requirement, of 10 years' ordinary residence in Hong Kong immediately preceding the date of nomination, does constitute an unreasonable restriction.

25. We have heard some argument about this. However, I do not propose to go into the matter because I am satisfied that it can be taken up by these applicants before the election court on any election petition which they may seek to launch after the election. Certainly, on the face of it, a 10 years' ordinary residence qualification period seems hard to justify as reasonable. But it may be that, in the special conditions of Hong Kong, those who seek to uphold the restriction as reasonable might be able to persuade the election court to uphold it.

26. Secondly, these applicants complain that, even if s. 18(2) has not been repealed by the Bill of Rights, nevertheless they are all persons who were ordinarily resident in Hong Kong for the qualifying period. Each of them has been absent from Hong Kong for considerable parts of the relevant period, in the case of one of them because he was detained in custody in China; in the case of the others because they went abroad voluntarily for purposes of their own which they claim to have been temporary. In the case of the applicant who was detained in custody in China, it is difficult to understand how that involuntary detention can have deprived him of his ordinary residence in Hong Kong; but all these matters require full argument, the right place for which is the election court.

27. All this demonstrates that it is most undesirable to leave difficult questions such as whether a prospective candidate is or is not ordinarily resident in Hong Kong to an administrative officer acting as the returning officer for the purposes of an election. That does seem to be a task cast upon the returning officer by the local legislation, which clearly requires reconsideration.

28. In the result, the two major points taken by the applicants will fall to be taken before the election court on an election petition rather than now by way of judicial review. This does not seem to me to be unsatisfactory. I think it much better that that court, constituted for just this sort of purpose, should be given the opportunity to protect the applicants' rights, if they have any, without the need completely to disrupt now the holding of elections throughout Hong Kong. Although I apprehend that I differ from Mayo, J. and Litton, J.A. about the power of this court in a proper case to grant the remedy of judicial review before the election, I have no doubt that these are not cases for the exercise of that power.

29. Accordingly, in the exercise of the discretion which this court has, I would, in the result, uphold the decision of the judge, albeit for different reasons from those which he gave to justify his decision.

Nazareth, J.A.:

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

31. Likewise, in my judgment for the reasons given by my Lord s.9(7) of the Boundary and Election Commission (Electoral Procedure) (Geographical Constituencies) Regulation is intra vires s.7 of the Boundary and Election Commission Ordinance.

32. Had I not been satisfied that the appeals should be dismissed on those grounds, I would yet have dismissed them on discretionary grounds of the sort relied upon by my Lord Godfrey J.A.

33. Having said that I would add only that I do not share Miss Li's doubts that Mr Lau might not be able to have the rejection of his nomination examined by means of an election petition, and the other candidates likewise.

34. Accordingly, I, too, would dismiss the appeals.