CHAN PO MING, ERIC v. CHOW TAT MING, THOMAS

1994 MP No. 2263

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. Three applications lie before me for Judicial Review. All three Applicants have had their nominations to stand as candidates in the forthcoming District Board Elections rejected by a Returning Officer.

2. They all seek orders of certiorari to quash the Decision of the Returning Officers and other appropriate relief.

3. The main ground advanced by all these Applicants is that the restriction contained in S.18(2) of the Electoral Provisions Ordinance, Cap. 367 is inconsistent with the Bill of Rights Ordinance, S.18 provides:-

"18. Qualification for nomination as a candidate

(1) Subject to subsection (2), any person, unless disqualified by virtue of this Ordinance, the Boundary and Election Commission Ordinance (Cap. 432) or any other enactment, shall be qualified for nomination as a candidate if he is entitled to be and is registered as an elector.

(2) 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 preceding the date of his nomination.

(3) A person shall not be validly nominated under subsection (1) as a candidate in an election unless he has lodged a deposit in such amount as prescribed by regulations made under section 28 and in such manner as prescribed by regulations made under section 7 of the Boundary and Election Commission Ordinance (Cap. 432)."

4. Article 22 of the Bill of Rights is as follows:-

" Equality before and equal protection of law

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

5. As a fall back position each of the Applicants seek to contend that even if S.18(2) is not struck down by the Bill of Rights, they had been ordinarily resident in Hong Kong for the 10 year period preceeding the election on the basis of the principles referred to in R. v. London Borough of Barnet, Ex parte Shah [1983] 2 AC 309.

6. One of the first questions to be considered is whether Judicial Review is open to the Applicants.

7. S.30 of the Electoral Provisions Ordinance, Cap. 367 provides:-

"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) the commission of a corrupt practice or an illegal practice within the meaning of the Corrupt and Illegal Practices Ordinance (Cap. 288) by or in respect of that person or the commission of such practices generally at or in respect of that election; or

(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."

8. Miss Gladys Li Q.C., who was representing Mr. Lau submitted that these provisions only related to the actual election and that they did not have any application to a decision by a Returning Officer on the validity or otherwise of a nomination paper.

9. In support of this contention she referred to S.37 of the Ordinance and argued that the matters to be determined by the Court did not include matters preceeding the election such as the nomination of candidates.

10. With respect I consider that this submission must fail. Although S.37(1)(a) is directed towards uncontested election it clearly contemplates a consideration of the validity of nomination papers. S.37(1)(b) deals with contested elections and requires the Court to make a determination on the whole question as to whether the person referred to has been duly elected. I can see nothing in this to preclude the Court from extending the scope of its deliberations to include the question as to whether or not any candidate is duly qualified to be a candidate.

11. There are other good reasons why S.30 is clearly applicable to the determination which was made by the Returning Officers.

12. The section refers to any material irregularity relating to the "election or poll or count". This must be broad enough to include the function exercised by the Returning Officer when he or she makes their determination on the nomination paper.

13. This is evident from the passage in the judgment of Mr. Justice Wright on page 858 in Harford v. Linskey [1899] 1 QB 852:-

"In the absence of any guide, we think it safest to hold that in cases of elections under the Municipal Corporations Acts a person, who at the time of nomination is disqualified for election in the manner in which this petitioner was disqualified, is disqualified also for nomination. The nomination is for this purpose an essential part of the election, and if there are no competitors it of itself constitutes the election by virtue of the express words of s.56. A different construction might produce much confusion. On the nomination day no one could know whether the persons nominated will at the poll be effective candidates or not. It is true that in the case put the disqualification may be removed before the election is completed; but what is to be the effect if the disqualification continues until the poll begins, or until the middle of the polling day, or until the close of the poll? Will votes given before the removal of the disqualification be valid? If not, how is the number of them to be ascertained? It seems to us unreasonable to hold that the Act means to leave the matter in such a state of uncertainty, and for these reasons we think that this petitioner was disqualified for nomination or election. It is not necessary to say whether the same conclusion would follow if the disqualification was such as must necessarily cease at a time between nomination and poll, as, for instance, if a person were nominated on the last day of his minority for a poll to take place on a future day."

14. If there is any doubt concerning this, it is I think resolved by the wording of S.31 of the Ordinance:-

"31. Who may present petition

An election petition may be presented either by 10 or more electors entitled to vote at the election, or by a person alleging himself to have been a candidate at the election."

15. The Applicants would squarely come within the description of "a person alleging himself to have been a candidate at the election".

16. Miss Li also submitted that in as much as the Boundary and Election Commission (Electoral Procedure)(Geographical constituencies) Regulations referred to the nomination of candidates, they were ultra vires the Ordinance. This was because the section which empowered the commission to make regulations, S.7 could not extend to nominations as S.7(1)(j) referred to "the carrying into effect of the provisions and purposes of this part ..... or parts III and V of the Electoral Provisions Ordinance Cap.367."

17. Part III of Cap. 432 did not include any provisions relating to the Nomination of Candidates and the provisions on this subject in Cap. 367 were contained in Part IV thereof which was not included in S.7(1)(j) which only referred to Parts III and V.

18. If this was correct Regulation 9(7) which purported to oust the jurisdiction of the. Court could have no validity.

19. Regulation 9(7) is in this form:

" (7) 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."

20. This submission must in my view fail for much the same reasons as those considered in connection with S.30. As the nomination process is part of the election as a whole the Regulations must be intra vires S.7.

21. Mr. Johannes Chan contended that even if Regulation 9(7) was not ultra vires it fell foul of Article 14(1) of the International Covenant on Civil and Political Rights which is couched in similar terms in Article 10 of the Bill of Rights:-

" Equality before courts and right to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

22. He argued that a fair hearing embodies an inherent right to access to the Court. If an intending candidate is unable to pursue his rights by way of Judicial Review and could only proceed by way of an Election Petition, it would be inevitable that he would be unable to assert his rights until after the outcome of the election. This amounted to a deprivation of his rights such as to justify invoking Article 14(1).

23. I regret that I do not see much merit in this argument. It seems to me to fly in the face of the obvious legislative intent of the Ordinances which set out in detail the procedure to be adopted if an election or any part of it is called in question.

24. Perhaps even more important than this, it is difficult to see how any of the rights referred to in the Article would be in any way compromised if the Applicants were to proceed by way of an Election Petition. They would obtain an expeditious hearing of their complaints and all of the requirements of the Article would be complied with.

25. I accept the validity of the submissions made by Mr. Marshall Q.C. for the respondents that one of the most important considerations under the legislation was to preserve the integrity of the electoral process. The procedure laid down for Election Petition was designed to protect this in an orderly manner. Having regard to the tight timetable for each of the successive steps in an election, it would be most unsatisfactory if interested parties were able to resort to the courts during the currency of the election and perhaps cause confusion and uncertainty which would redound to everyone's disadvantage.

26. There are two cases which have caused me concern. They are the cases of Ex parte Bennett v. Thatcher. Unreported being 1983 Court of Appeal Transcript 237 and Ex parte Sanders (The Times, 30 May 1994.) In Ex parte Bennett it is evident that the initial hearing before Mr. Justice McCowan was by way of an application for leave for Judicial Review. The complaint referred to related to a disputed nomination paper.

27. At first sight, this would appear to indicate that certainly prior to an Election, it is open to a candidate to seek Judicial Review in a case where a nomination paper has been rejected. Miss Li has however helpfully pointed out that the legislative provisions in the United Kingdom are significantly different to those obtaining here. In the United Kingdom, the provisions are framed on the basis that where nomination papers are challenged, they are deemed to be valid unless their validity can be called in question by an Election Petition. The obvious advantage of this is that voters are able to cast their votes notwithstanding the query which has been raised and it is only if the candidate wins the election that the dispute on the nomination paper will be ventilated.

28. The approach adopted in Ex parte Sanders appears to have followed a similar pattern.

29. What is important in this case is that on account of my holding that regulation 9(7) is not ultra vires, it is not in my view possible to argue any analogy to these English cases and the clear wording of the sub rule excludes the availability of Judicial Review as a means for redress for the complaints being made by the Applicants.

30. Miss Li and Mr. Lam both made submissions that the Returning Officers decisions were amenable to Judicial Review on account of the fact that it could be demonstrated that S.18(2) had been repealed by the Bill of Rights Ordinance. The decisions were accordingly a nullity. In support of this contention, she called in aid passages from the speech of Lord Reid at pages 170 and 174 of Anisminic v. Foreign Compensation Commission [1969] 2AC 147:-

"The next argument was that, by reason of the provisions of section 4(4) of the 1950 Act, the courts are precluded from considering whether the respondent's determination was a nullity, and therefore it must be treated as valid whether or not inquiry would disclose that it was a nullity. Section 4(4) is in these terms:

"The determination by the commission of any application made to them under this Act shall not be called in question in any court of law."

The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that "determination" means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity you are not questioning the purported determination - you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned.

Let me illustrate the matter by supposing a simple case. A statute provides that a certain order may be made by a person who holds a specified qualification or appointment, and it contains a provision, similar to section 4(4), that such an order made by such a person shall not be called in question in any court of law. A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment. Does such a provision require the court to treat that order as a valid order? It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly-meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court."

and

"This is the crucial question in this case. It appears from the commission's reasons that they construed this provision as requiring them to inquire, when the applicant is himself the original owner, whether he had a successor in title. So they made that inquiry in this case and held that T.E.D.O. was the applicant's successor in title. As T.E.D.O. was not a British national they rejected the appellants' claim. But if, on a true construction of the Order, a claimant who is an original owner does not have to prove anything about successors in title, then the commission made an inquiry which the Order did not empower them to make, and they based their decision on a matter which they had no right to take into account. If one uses the word "jurisdiction" in its wider sense, they went beyond their jurisdiction in considering this matter. It was argued that the whole matter of construing the Order was something remitted to the commission for their decision. I cannot accept that argument. I find nothing in the Order to support it. The Order requires the commission to consider whether they are satisfied with regard to the prescribed matters. That is all they have to do. It cannot be for the commission to determine the limits of its powers. Of course if one party submits to a tribunal that its powers are wider than in fact they are, then the tribunal must deal with that submission. But if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that - not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on some matter which is not prescribed for their adjudication, they are doing something which they have no right to do and, if the view which I expressed earlier is right, their decision is a nullity. So the question is whether on a true construction of the Order the applicants did or did not have to prove anything with regard to successors in title. If the commission were entitled to enter on the inquiry whether the applicants had a successor in title, then their decision as to whether T.E.D.O. was their successor in title would I think be unassailable whether it was right or wrong: it would be a decision on a matter remitted to them for their decision. The question I have to consider is not whether they made a wrong decision but whether they inquired into and decided a matter which they had no right to consider."

31. There is an illuminating commentary on this at p.299 of the 6th Edition of Administrative Law by Professor Wade Clavender Press 1988 and it seems to me to be clear that it is highly questionable in the light of later decisions whether the views of Lord Reid can still be maintained.

32. In particular, I would refer to the passage appearing on p.744 of Pearlman v. Harrow School [1978] 3 WLR 736:-

"Jurisdictional error

But even if section 107 does apply to this case, it only excludes certiorari for error of law on the face of the record. It does not exclude the power of the High Court to issue certiorari for absence of jurisdiction. It has been held that certiorari will issue to a county court judge if he acts without jurisdiction in the matter: see Reg. v. Hurst, Ex parte Smith [1960] 2 Q.B. 133. If he makes a wrong finding on a matter on which.his jurisdiction depends, he makes as jurisdictional error; and certiorari will lie to quash his decision: see Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147, 208,per Lord Wilberforce. But the distinction between an error which entails absence of jurisdiction - and an error made within the jurisdiction - is very fine. So fine indeed that it is rapidly being eroded. Take this very case. When the judge held that the installation of a full central heating system was not a "structural alteration ... or addition" we all think - all three of us - that he went wrong in point of law. He misconstrued those words. That error can be described on the one hand as an error which went to his jurisdiction. In this way: if he had held that it was a "structural alteration ... or addition" he would have had jurisdiction to go on and determine the various matters set out in paragraph 2(2)(b)(c) and (d) of Schedule 8. By holding that it was not a "structural alteration ... or addition" he deprived himself of jurisdiction to determine those matters. On the other hand, his error can equally well be described as an error made by him within his jurisdiction. It can plausibly be said that he had jurisdiction to inquire into the meaning of the words "structural alteration ...

or addition"; and that his wrong interpretation of them was only an error within his jurisdiction, and not an error taking him outside it.

That illustration could be repeated in nearly all these cases. So fine is the distinction that in truth the High Court has a choice before it whether to interfere with an inferior court on a point of law. If it chooses to interfere, it can formulate its decision in the words: "The court below had no jurisdiction to decide this point wrongly as it did." If it does not choose to interfere, it can say: "The court had jurisdiction to decide it wrongly, and did so." Softly be it stated, but that is the reason for the difference between the decision of the Court of Appeal in Anisminic Ltd. v. Foreign Compensation Commission [1968] 2 Q.B. 862 and the house of Lords [1969] 2 A.C. 147.

I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all courts and tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen's rights in point of law should depend on which judge tries his case, or in which court it is heard. The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it. In this case the finding - that the installation of a central heating system was not a "structural alteration" - was an error on which the jurisdiction of the county court depended: and, because of that error, the judge was quite wrong to dismiss the application outright. He ought to have found that the installation was an "improvement" within. Schedule 8, paragraph 2(2) (a), and gone on to determine the other matters referred to in Schedule 8, paragraph 2(2) (b) (c) and (d).

On these grounds I am of opinion that certiorari lies to quash the determination of the judge, even though it was made by statute 'final and conclusive'."

33. What I think all of this boils down to is that if and when an Election Petition is mounted, arguments along these lines might be pursued. However, having regard to the clear wording of Regulation 9(7), I do not consider that it is possible to embark upon a Judicial Review simply on this basis.

34. This then leaves the question as to what I should do concerning the other two issues which were argued before me. I have given careful thought as to whether it is likely to be helpful for me to express any opinion upon whether S.18(2) offends against Article 21 of the Bill of Rights or whether on the material which was before the Returning Officers, he or she were manifestly in error in making the determinations they did concerning the qualifications of the Applicants to be candidates.

35. I have come to the conclusion that I should desist from the temptation to do so. This is notwithstanding the fact that I received most helpful and illuminating submissions on these subjects from the counsel appearing before me. My reason for reaching this conclusion is that I am satisfied that the most important imperative is that everything possible should be done to maintain the integrity of these elections and for me not to indulge in speculation as to what the outcome of any possible Election Petition may be assuming that all or any of these candidates or any other candidates may decide to lodge such petitions.

36. As it is I consider that the wisest course for me to adopt is to confine myself to making an order that the present motions be dismissed for the reasons I have given. I will hear the parties on costs.