KWOK CHEUK KIN v. ERICK TSANG KWOK-WAI, SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS AND ANOTHER

HCAL 1635/2021

[2021] HKCFI 3728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1635 OF 2021

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J U D G M E N T

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A. Introduction

1.  The 2021 Legislative Council General Election will be held on 19 December 2021.  On 29 November 2021, the Government announced that three polling stations on the Hong Kong side of the Hong Kong/Shenzhen boundary will be set up to facilitate voting by registered electors still in the Mainland, for them to return to Hong Kong for voting on the polling day (“Arrangement” or “Decision”).

2.  On 2 December 2021, the applicant filed a Form 86 seeking leave to apply for judicial review to challenge the Decision.  The applicant acts in person.

3.  On 3 December 2021, I directed the Department of Justice (which acts for the 1^st putative respondent) to provide an urgent initial response on or before 7 December 2021, which was provided.

4.  In light of the materials before the Court and the election timetable, I consider that the position is clear and that this application is apt to be disposed of now on paper.

B.     The Arrangement

5.  The Arrangement is explained in the Government’s press release and the election website.  It is said that the Arrangement is a special one-off measure to exempt the quarantine requirements which would otherwise be imposed on electors who wish to return to Hong Kong from Mainland to vote on the polling day.  Electors wishing to make use of the Arrangement have to register online in advance.  Upon successful registration, they could be exempted from quarantine requirements imposed by both the Mainland side and the Hong Kong side, subject to that they have return to the Mainland immediately after casting their votes at one of the three boundary control point (“BCP”) polling stations.

6.  Two features of the Arrangement are pertinent for present purposes.

(1)     First, only electors registered on the final register of electors for the geographical constituencies (GCs”) or functional constituencies (“FCs”) for the upcoming election are eligible to benefit from the Arrangement.  The final register has been duly published on 29 October 2021.

(2)     Second, the three BCP polling stations will be situated within the territory of the Hong Kong SAR.

C.     Grounds of Intended Review

7.  The applicant’s intended grounds of review are identified in his Form 86 and elaborated in the supporting affirmation.  They could be summarized as follows:

(1)     The registration of electors was closed on 5 July 2021.  But the 1^st putative respondent announced an extension to 19 December 2021 to allow people living in the Mainland to get onto the register.  Registration after 5 July 2021 should be void.

(2)     The Arrangement allows people who do not ordinarily reside in Hong Kong to be registered as electors and to vote in the election, contrary to Basic Law.

(3)     Under the Arrangement, the media are not allowed to observe counting of votes in those three polling stations, contrary to Article 25 of the Basic Law.

(4)     No similar arrangement is made to facilitate the voting of Hong Kong residents currently in Taiwan, meaning the Arrangement fails to recognize Taiwan as a part of China, contravening the National Security Law.

D.     1^st Putative Respondent’ Response

8.  The 1^st putative respondent submits that the leave application should be dismissed because (1) all intended grounds are not reasonably arguable, (2) the Decision ought to be challenged by way of an election petition under section 61 of Legislative Council Ordinance Cap 542 (“LCO”), and (3) the applicant has no standing.

E.     Is there merit in the intended grounds?

9.  The test for granting leave to apply for judicial review is the test of reasonable argue ability, and the burden is on the applicant.

10.  The first and second intended grounds referred to above stem from a factual misunderstanding of the Arrangement.  The Arrangement does not allow people who are not qualified to be electors to become so.  It only exempts persons who are already included in the final register from complying with the otherwise applicable quarantine requirements.  The registration with a deadline of 8 December 2021 (not in fact 19 December 2021) is a registration to make use of the Arrangement, not to become an elector.  That registration is to facilitate an orderly implementation.  But, if a person is not already a registered elector, he or she simply cannot seek to avail him- or herself of the Arrangement.

11.  Even without the Arrangement, persons living overseas are nonetheless included by the Electoral Registration Officer in the final register could return to Hong Kong on the polling day for voting.  The Arrangement itself has no impact on how the Electoral Registration Officer applied the definition of “ordinary residence” in the process of compiling the final register, which was already concluded before the announcement of the Arrangement.

12.  The third ground of challenge relates to the exclusion of media from monitoring polling and observing vote counting in the three BCP polling stations.  The applicant submits that observing vote counting is generally allowed in other polling stations.  That is not denied by the 1^st putative respondent, but they argue that such a departure is legal and appropriate in view of the pandemic.

13.  First, members of the public (including media representatives) are never allowed to observe the polling process at any polling station.  There is thus no difference between the management of the BCP polling stations and other polling stations.  On the other hand, it might be noted that, whilst the BCP polling stations will operate a closed-loop management to minimise the risks from the pandemic, each candidate in the GCs and the FCs is allowed to arrange one person to observe the polling, subject to compliance with anti-pandemic control measures.

14.  Allowing members of the public (including media) to observe vote counting is at the discretion exercisable by the Chief Returning Officer or the Presiding Officer of a counting station under section 68 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, Cap 541D (“Regulation”).  Section 68(1) provides a list of persons who may be present at the vote counting, and members of the public are not on the list.  However, if the relevant officer considers it appropriate and practical without disrupting the count and prejudicing the secrecy of the counting of the votes, the public may be permitted to observe the vote counting under section 68(5) of the Regulation.

15.  The 1^st putative respondent submits that whether the public should be allowed to observe vote counting very much depends on the actual circumstances of each counting station.  Restricting public observation in the three BCP polling stations is for anti-pandemic purposes, and I do not think it reasonably arguable that that is unlawful or unreasonable in the public law sense.  The Arrangement could not work without some general guidance applicable across all three polling stations.  Again it might also be noted that each candidate in the GCs and the FCs is allowed to arrange one person to observe the vote counting, subject to the anti-pandemic control measures.

16.  The fourth ground can be disposed of quickly.  First, it is not a ground needed in the Form 86, contrary to Order 53 rule 3(2)(a)(iii) which mandates that an applicant state his or her grounds on which the relief sought in the Form 86.  Secondly, in any event, Hong Kong law requires votes to be cast within the territory of Hong Kong, so that it would be impossible to set up polling stations in Taiwan.  Thirdly, the location of the BCP polling stations was chosen on the basis of obvious practical and policy considerations, within the remit of the Government.  The applicant has raised no factual or legal basis which would suggest that the Court should interfere with the Government’s judgment.

17.  There being no argument which reaches the applicable threshold for the grant of leave to apply for judicial review, that is dispositive of the application.  I will, however, briefly consider the other points raised against the application.

F.     Should the Decision be challenged by election petition?

18.  Section 61 of LCO provides that:

(1) An election to return a Member may be questioned only on the following grounds—

(a) the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541) to have been elected as a Member at the election was not duly elected because—

(i) the person was ineligible to be, or was disqualified from being, a candidate at the election; or

(ii) corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election; or

(iii) corrupt or illegal conduct was generally prevalent at or in connection with the election; or

(iv) material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or

(b) a ground specified in any other enactment that enables an election to be questioned.

(2) An election to return a Member may be questioned only by an election petition lodged under section 62.

19.  The 1^st putative respondent submits that the present application is a challenge to “an election to return a member” and the intended grounds fall within section 61(1)(a)(iv) of LCO.  Thus, it could only be challenged by an election petition pursuant to section 62 of LCO.

20.  I disagree.  The language of section 61(1)(a) is plain that such a challenge is one to be made after the election, and is a challenge to the duly elected status of the person who has been declared as such after the election. The grounds of challenge provided by section 61(1)(a)(i), (ii), and (iii) refer to the conduct or qualification of that person.  Section 61(1)(a)(iv) speaks of a “material irregularity [which] occurred in relation to the election”, but it must be read as a material irregularity which would render the person not duly elected, despite having been declared to be so.

21.  This is also plain if one reads section 61 together with section 65(1), which provides that election petitions are to be lodged within the two months after the election result has been gazetted.  Election petitions are intended for challenging the status of an otherwise successful candidate.  Hence, had it any merit, judicial review would be the appropriate venue for the current challenge.

G.     The applicant’s standing

22.  The applicant is a permanent resident and an elector.  He has an interest in ensuring the openness and fairness of the election and, thus, the necessary standing to bring the current challenge.

H.     Conclusion

23.  The applicant’s intended grounds are not reasonably arguable.  The application is dismissed.  In the overall exercise of my discretion, I made no order as to costs.