MOK CHARLES PETER v. TAM WAI HO AND ANOTHER

CACV 115/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 115 OF 2006

(ON APPEAL FROM HCAL NO. 141 OF 2008)

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REASONS FOR JUDGMENT

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Hon Tang VP:

1.  The result for the election for the Information Technology (IT) Functional Constituency in the 2008 Legislative Council election was declared on 8 September 2008. The 1^st respondent was declared the winner, having received 2,017 votes, while the petitioner had received 1,982. By an election petition dated 10 November 2008 and subsequently amended on 8 December 2008, the petitioner requested the court to determine, inter alia,

“(1)  whether (the 1^strespondent) declared by the Returning Officer for the above-mentioned Constituency to be elected in the notice of result of the election was duly elected;”

2.  The election petition was presented to the Court of First Instance pursuant to section 64 of the Legislative Council Ordinance, Cap. 542 (“the LegCo Ordinance”):

3.  Section 64 provides:

“64.  Court to have jurisdiction to determine election petitions

(1)  The Court has the same jurisdiction and the same functions in respect of an election petition as it has in respect of an ordinary cause of action within its jurisdiction.

(2)  An election petition is triable in open court and, unless the Chief Justice otherwise directs, before one judge.

(3)  The Chief Justice may make rules providing for giving effect to this Part and for regulating matters relating to the preparation, lodgement, service, trial and withdrawal of election petitions and costs in respect of those petitions (including the giving of security for costs), and the practice and procedure concerning the trial of those petitions.”

4.  After hearing, Reyes J ordered that the amended election petition be dismissed and declared that the 1^st respondent was validly elected to represent the IT Functional Constituency.

5.  Reyes J’s determination of the election petition is final as to the matters at issue concerning the election petition. Section 67(3) of the LegCo Ordinance.

6.  Section 14(3) of the High Court Ordinance, Cap. 4 provides:

“(3)  No appeal shall lie-

(c)  from a judgment or order of the Court of First Instance, where it is provided by any Ordinance or by rules of court that the same is to be final;”

7.  At issue before the court is whether, notwithstanding section 67(3) and section 14(3)(c) of the High Court Ordinance, the petitioner may nevertheless appeal to this court.

8.  Mr Martin Lee, SC, for the petitioner, submitted that the decision of the Court of Final Appeal in Solicitor v Law Society of Hong Kong and Secretary for Justice (Intervener) [2003] 6 HKCFAR 570 is authority that insofar as section 67(3) provides that the determination at first instance shall be final, it is repugnant to Article 82 of the Basic Law.

9.  Article 82 provides that:

“The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region, …”

10.  Law Society of Hong Kong arose out of certain disciplinary proceedings before the Solicitors Disciplinary Tribunal established under the Legal Practitioners Ordinance, Cap. 159 (“LPO”) which ordered the appellant to be fined and censured. Under section 13, a person subject to the tribunal’s order has a right of appeal, however,

“… the decision of the Court of Appeal on any such appeal shall be final.”

11.  There, the issue relevant to this appeal is whether the provision in section 13(1) that the decision of Court of Appeal on an appeal against an order of the Tribunal shall be final has any legal effect. The Court of Final Appeal held that it had no effect because it had unduly limited the power of final adjudication vested in the Court of Final Appeal.

12.  However, the Chief Justice (with the concurrence of the other members of the Court) acknowledged that limitation may properly be placed on the right of appeal to the Court of Final Appeal:

“31.  … But limitation cannot be imposed arbitrarily by the legislature.  The limitation imposed must pursue a legitimate purpose and there must be reasonable proportionality between the limitation and the purpose sought to be achieved.  These dual requirements will be referred to collectively as ‘the proportionality test’.”

13.  The Chief Justice went on to say:

“32. In the exercise of their independent judicial power, it is the duty of the courts to review any legislation enacted which seeks to impose any limitation on the power of final adjudication vested in the Court by art. 82 and to consider whether the limitation satisfies the proportionality test.  If the courts decide that it does not satisfy this test, the limitation must be held to be unconstitutional and hence invalid.  The limitation imposed would have exceeded the parameters of proper limitation of the Court’s power of final adjudication vested by art. 82.

33.  In applying the proportionality test to a particular limitation, the purpose of the limitation must first be ascertained.  In ascertaining its purpose, matters such as the subject matter of the dispute, whether it concerns fact or law, whether it relates to substantive rights and obligations or only procedural matters, what is at stake, the need for speedy resolution and the cost implications of dispute resolution, including any possible appeals, will have to be considered.  The legitimacy of any proposal will depend on whether it is consistent with the public interest, which of course has many facets, including the proper administration of justice.  Then, in considering whether the limitation is reasonably proportionate to the legitimate purpose, it will be necessary to examine the nature and extent of the limitation.

34.  Whether a particular limitation imposed by statute satisfies the proportionality test will depend on an examination of all the circumstances.  There may be instances where a statutory limitation providing that a decision of the Court of Appeal or the Court of First Instance on appeal, whether from a statutory tribunal or a lower court, shall be final may be able to satisfy that test.”

14.  Mr Lee has referred us to the Chief Executive Election Ordinance, Cap. 569 which also provides for an election petition to be tried in the Court of First Instance in exactly the same way but section 22(1)(c)(i) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 enables leave to appeal to the Court of Final Appeal from such determination to be granted by the Court of Final Appeal.

15.  I note that in the case of an election of a Chief Executive, there is no right to appeal to this Court. Mr Martin Lee did not contend that, there, the absence of an appeal to this Court contravened Article 82.

16.  Even if Mr Lee is right that in the case of an election to the Legislative Council a prohibition against any appeal to the Court of Final Appeal is disproportionate and therefore inconsistent with Article 82, I do not believe it can be said that the absence of an intermediate appeal to this court can be said to contravene Article 82.

17.  That is all we have to decide, namely, whether section 67(3) contravenes Article 82 because as a result no appeal may be bought to us because of section 14(3)(c) of the High Court Ordinance. If I am right, it is unnecessary for us to decide whether the finality provided for under section 67(3) would also preclude an appeal to the Court of Final Appeal, and if so, whether that contravenes Article 82.

18.  As I have said Mr Lee did not contend that the absence of a right of appeal to this Court on an election petition concerning the election of the Chief Executive contravenes Article 82. He submitted, however, that the absence of an equivalent to section 22(1)(c)(i) of the Hong Kong Court of Final Appeal Ordinance has rendered section 67(3) and section 14(3) unconstitutional. I do not agree. If the Court of Final Appeal considers that Article 82 requires a possibility of appeal to the Court of Final Appeal, no doubt it will enable such an appeal to be made.

19.  Mr Lee submitted that the Chief Justice has said that:

“32.  … it is the duty of the courts to review any legislation enacted which seeks to impose any limitation on the power of final adjudication vested in the Court by art. 82 and to consider whether the limitation satisfies the proportionality test. …”

20.  This Court will do its duty. However, I believe, all that we are required to consider is whether the combined effect of section 67(3) and section 14(3) which prohibits appeal to this Court contravenes Article 82. This we can decide without deciding whether an appeal to Court of Final Appeal is possible.

21.  Mr Lee also relied on in para. 29 of the learned Chief Justice’s judgment, where he said:

“… The Court’s function as envisaged by the Basic Law is not merely to exercise an appellate power, but a final appellate power which, by its nature, is usually exercisable upon appeal from an intermediate appellate court, such as the Court of Appeal. …”

22.  Mr Lee argued that the deprivation of a right of an intermediate appeal is an infringement of Article 82 insofar as it impinges on the proper function of the Court of Final Appeal. I do not believe it will have that effect. In case I am wrong, I go on to consider whether in any event this is a disproportionate limitation.

23.  Mr Lee accepted the importance of a speedy and final resolution of any dispute over the validity of an election. However, he submitted that if the reasons given by the Court of First Instance for dismissing an election petition are unconvincing, and the legal system does not allow any appeal from that determination, the public may lose confidence in our judicial system. He also relied on what Dame Sian Elias J said in her dissenting judgment in Prem Singh v Krishna Prasad [2003] NZAR 385 at 401 that:

“Speed in electoral matters may be a very good thing but not if it comes at the expense of fundamental rights.”

24.  Mr Lee also mentioned that there is no specialised election court in Hong Kong, and election petitions are generally decided by only one judge. That is so but in a suitable case, the Chief Justice may cause an election petition to be heard by more than one judge. It is open to a party to make representations to the Chief Justice if it is of the view that the case is suitable to be heard by more than one judge.

25.  I turn to Prem Singh v Krishna Prasad. It was a decision of the Supreme Court of Fiji Islands, which was the highest court of Fiji Islands. There the court was concerned with the Fiji Islands Constitution Amendment Act 1997 which provided, by section 73(7), that a determination of the High Court, sitting as the court of disputed returns, is final. However, section 121(2) of the same Act provided that both the Court of Appeal and the Supreme Court has jurisdiction in relation to any appeal:

“1  … from a final judgment of the High Court in any matter arising under this Constitution or involving its interpretation.”

26.  As Elias J recognised:

“… the matter remains one of interpretation.  The scope of s. 73(7) turns on its construction in context.”  Page 399.

27.  The majority (Sir Thomas Eichelbaum and Beaumont JJ) were of the view that a specific provision (such as section 73(7)) which prevented an appeal would prevail over a general appellate provision such as section 121(2). However they also commented on the judgment of Elias J and said:

“Having had the opportunity of reading the separate judgment of Elias J we wish to add this. Of course we share her view of the significance, in terms of human rights, of the right to vote. However, in enacting the 1997 Constitution, the Legislature both recognised those rights, and at the same time provided that the determination of the Court of Disputed Returns, when dealing with a question whether a person had been validly elected, was ‘final’. That was a well established expression meaning, as Parliament would have known, there was no right of appeal. Courts are obliged to give effect to the plain meaning of statutes and with respect we cannot see that Parliament's language left room for implying that in some cases, nevertheless an appeal would lie. Nor can we agree that in adopting a precedent established by Parliaments all round the world, the Legislature produced a result that was ‘manifestly absurd’ or ‘made no sense’”.

28.  Here, in deciding whether the limitation is disproportionate, I accept we should take into account the importance of the right to vote.

29.  I turn to consider whether the deprivation of a right to an intermediate appeal could be said to be disproportionate such that it is an arbitrary limitation on the right to appeal to the Court of Final Appeal.

30.  In Théberge v Laudry [1876] 2 AC 102, Lord Cairns, the Lord Chancellor, in delivering the advice of the Privy Council said at 106 that:

“… one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known.”

31.  As Lord Upjohn explained in delivering the advice of the Privy Council in Devan Nair v Yong Kuan Teik [1967] 2 AC 31, on appeal from Malaysia, the reason for the curtailment of the right of appeal to the Privy Council:

“… was, as the authorities show, the recognition of the necessity for a speedy determination of an election issue”.

32.  Furthermore, as Mr Blanchflower for the intervener has pointed out in his written submission, a Legislative Council’s term is 4 years (Article 69 Basic Law), and a by-election cannot be held within the last 4 months of Legislative Council’s current term. Section 36(2)(a). So there is only 3½ years for the determination of a petition. As Lord Hobhouse had pointed out in Kennedy v Purcell (1888), 59 TLR 279, the legal duration is a reason why it is important that:

“… no time should elapse before the constitution of the body is known …”

33.  Mr Lee has produced a schedule showing the possibility of an appeal in different parts of the common law world.

34.  In the United Kingdom, under the Representation of the People Act 1983, where an election petition would be heard by two judges on the rota for the trial of parliamentary election petitions from the judges of the King’s Bench Division. With special leave of the High Court, an appeal to the Court of Appeal was possible. The decision of the Court of Appeal is final.

35.  In Australia, for federal elections, there is no right of appeal although the election petition would be heard by a judge of the highest court (“the High Court”) or the High Court may refer it to a judge of the Federal Court. In many of the Australian states, an election petition would be heard by a first instance judge, with no right of appeal.

36.  Thus, no appeal or only one appeal is permitted in important parts of the common law world.

37.  Here, even if the absence of an appeal to this Court could be regarded as a limitation of the power of final adjudication of the Court of Final Appeal, it is not disproportionate. Speed and finality in the determination of a disputed election are important. There are also cost and resource implications. The possibility of multiple appeals (here we are concerned with an intermediate appeal) has costs implication, which may inhibit participation in elections.

38.  Mr Lee also submitted since the outcome of an election petition would not invalidate acts purporting to have been done by the person who was originally declared to have been elected: section 71 of the LegCo Ordinance, the consequence of delay is less serious. He stressed that the right to vote is a fundamental right. The right to vote is a right shared by all and it is not only the right to vote of those who voted for the “aggrieved” candidate which has to be considered. It is common sense that a continuing dispute may undermine the legitimacy of a member, and possibly the Legislative Council, particularly if there is a fine balance in the Legislative Council. Moreover, surely the right to vote must carry with it, the right to see that the candidate of one’s choice should be able to carry on his duties without a cloud of illegitimacy hanging over his head for an unduly long period. I cannot ignore the right to vote of those persons who voted for the candidate sought to be impugned.

39.  For the above reasons, I have dismissed the appeal.

Hon Yeung JA:

40.  I agree with the judgment of Tang VP and Lam J. I have nothing else to add.

Hon Lam J:

41.  I agree with the judgment of the Vice-President. In the application of the proportionality test, there does not appear to be much dispute that a legitimate purpose can be identified for the curtailment a general right of appeal in the context of election petition. The main issue is whether the limitation is reasonably proportionate.

42.  In the consideration of this issue, I see much room for contending that the court should accord deference to a balance struck by the legislature.

43.  Historically, in England at least, the House of Commons had the privilege to provide for its own composition, see de Smith, Constitutional and Administrative Law, 4^th Edn p.322-3. Before 1868, election petitions were presented to and heard by the House. The nature of the jurisdiction of an election court was considered by the High Court of Australia in Holmes v Angwin (1906) 4 CLR 297. At p.309, Barton J said,

“The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants.  It is that domestic jurisdiction which … has been transferred [to the court]…”

44.  Since it was perceived as an incidence of the legislative power, historically there was no right of appeal. The transfer of the jurisdiction to the court was brought about by statute. But the character of the jurisdiction remains the same, see Holmes v Angwin (1906) 4 CLR 297. Thus, in de Smith, Constitutional and Administrative Law, (5^th ed) at p. 273, it was said,

“In form the judgment of an election court is a report to the Speaker, which the House is directed by statute to accept.  By the act of resolving that the report be recorded in the Journals of the House, the empty shell of the ancient privilege of the House is preserved.”

45.  The legislature did not deem fit to create any right of appeal when the jurisdiction was transferred to the court. Though it is right to observe that Basic Law were not in place when a similar finality provision was introduced in Hong Kong, the LegCo Ordinance was enacted in 1997 after the promulgation of the Basic Law. The legislature must be taken to have the provisions of the Basic Law well in mind, including Article 82, when Section 67(3) was enacted.

46.  If the jurisdiction remains an incidence of legislative power, and those in the Legislative Council must be in a better position than the court to assess the impact of any delay in the final resolution of election dispute, I can see a strong argument that the court should not lightly conclude that the right balance had not been struck simply because there were other mechanisms in overseas jurisdictions.

47.  Having said so, I appreciate that due to the manner in which arguments were deployed before us, we may not have heard all the submissions that can be canvassed in relation to this point. Hence, all I wish to say is that this appears to be a point that has to be addressed in the event that this case is taken to the Court of Final Appeal.