郭卓堅 v. 葛佩帆及另一人

HCAL 429/2017 &
HCAL 668/2017
[2021] HKCFI 133

HCAL 429/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 429 OF 2017

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AND

HCAL 668/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 668 OF 2017

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D E C I S I O N

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HCAL NO 668 OF 2017

1.  In this application for leave to apply for judicial review made by way of a Form 86 dated 25 September 2017, the Applicant seeks a court order to disqualify Mr Ho as a member of the Legislative Council and to require him to repay the remuneration which he has received as a member of the Legislative Council, on the ground that he engaged in corrupt or illegal conduct at the 2016 Legislative Council Election, the allegation being that Mr Ho claimed himself to be a practicing solicitor in Singapore and England and Wales, whereas in fact he was only qualified as a solicitor, but was not a practicing solicitor, in those jurisdictions.

2.  Mr Ho was elected as a member of the Legislative Council at the Legislative Council Election for the New Territories West Geographical Constituency in September 2016.

3.  The present application is misconceived for the following reasons.  First, although there is no strict rule that an application for judicial review only lies against an order, judgment, decision or other proceeding with a sufficient public element made or instituted by the respondent[1], an applicant of an intended application for judicial review must at least be able to identify a proper subject matter of judicial review in the Form 86.  In this case, Mr Kwok names Mr Ho as the proposed respondent in the Form 86, but is not seeking to challenge any judgment, order, decision or other proceeding that might have been made or instituted by him.  It cannot be suggested that Mr Ho’s decision to run as a candidate in the election can constitute a proper subject matter of judicial review.  Mr Kwok is also not seeking to challenge the constitutionality of any legislation.  In my view, Mr Kwok has failed to identify any subject matter which is amenable to judicial review in the Form 86.

4.  Second, there is a prescribed statutory procedure to challenge the election of a person at a Legislative Council Election, namely, an election petition under s 61 of the Legislative Council Ordinance, Cap 542 (“the Ordinance”).  While there is no absolute rule that an election petition is the only means by which an election to return a member of the Legislative Council may be questioned (see Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735), whether judicial review is available depends on the facts and circumstances of any given case.  The fact that (i) Mr Kwok has no standing to lodge an election petition to challenge the election of Mr Ho because, under s 62 of the Ordinance, such election may only be lodged by 10 or more electors entitled to vote at the election or by a person claiming to have been a candidate in the election, or (ii) the time for lodging such election petition under s 65 of the Ordinance (namely, 2 months following the date on which the Returning Officer published the result of the election in the Gazette, which occurred in September 2016) has passed, is not a valid ground for allowing Mr Kwok’s proposed challenge to be made by way of judicial review.  In Wong Tai Hoi v Au Nok Hin [2018] HKLRD 789, an attempt by Mr Wong, a single elector, to challenge the election of Mr Au at the 2018 Legislative Council By‑election for the Hong Kong Island Geographical Constituency by way of judicial review was rejected on the ground that the complaint could have been ventilated by an election petition (provided that Mr Wong could find 9 other electors to join him in the petition).  The position of Mr Kwok in this case is no different from that of Mr Wong in the earlier case.

5.  Third, even if it is permissible for Mr Kwok to challenge the election of Mr Ho by way of judicial review, the present application was substantially out of time by more than 9 months.  Mr Kwok has not advanced any good explanation for the delay, and none is disclosed on the materials before the court.  Mr Kwok argues that there is no relevant delay in this case because Mr Ho continues to act as a member of the Legislative Council up to now.  However, the heart of the complaint in this case concerns Mr Ho’s alleged corrupt or illegal conduct at the 2016 Legislative Council Election.  That election took place on 4 September 2016.  The date when grounds for an application for leave to apply for judicial review of the election first arose, assuming that it is permissible to challenge the election by way of judicial review in the present case, would be no later than the date on which the Returning Officer published the result of the election in the Gazette.  As stated by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393, at §37(3)(iii), “[w]here an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’… An Applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case”.

HCAL NO 429 OF 2017

6.  In this application for leave to apply for judicial review made by way of a Form 86 dated 20 July 2017, Mr Kwok similarly seeks a court order to disqualify Ms Quat and Mr Or as members of the Legislative Council, and to restrain any person from using false academic qualification or making false claim in any election, on the ground that they had used false titles/qualifications or made false claims at the 2016 Legislative Council Election.

7.  Ms Quat was elected as a member of the Legislative Council for the New Territories East Geographical Constituency, while Mr Or was elected as a member of the Legislative Council for the Kowloon East Geographical Constituency, in September 2016.

8.  For essentially the same reasons as in relation to the Mr Kwok’s challenge to Mr Ho’s election in HCAL 668/2017, this application is misconceived.

9.  First, Mr Kwok is not seeking to challenge any judgment, order, decision or other proceeding that might have been made or instituted by Ms Quat or Mr Ho, or the constitutionality of any legislation.  Mr Kwok has failed to identify any subject matter which is amenable to judicial review in the Form 86.

10.  Second, any challenge to the election of Ms Quat or Mr Or ought to be made by way of election petition (subject to the issue of standing), instead of judicial review.

11.  Third, even if it is permissible for Mr Kwok to challenge the election of Ms Quat or Mr Or by way of judicial review, the present application was substantially out of time by more than 7 months.  Mr Kwok has given no good explanation for the delay.  None is disclosed on the materials before the court.

12.  In addition, Mr Kwok was not an elector in either the New Territories East Geographical Constituency or the Kowloon East Geographical Constituency at the material time[2]. There are plainly other persons, eg other candidates standing in the elections for those Geographical Constituencies, who are better placed, and have a greater and more direct interest than Mr Kwok, to challenge the election of Ms Quat or Mr Or.  Mr Kwok does not have sufficient interest in the matter to which the application relates as required by Order 53, r3(7) of the Rules of the High Court, Cap 4A (see Mok Ka Kit v President of the Legislative Council [2017] 4 HKLRD 387).

13.  In all, the two intended applications for judicial review are not reasonably arguable, and have no realistic prospect of success.

14.  The above conclusions make it unnecessary for the court to consider whether the allegations raised by Mr Kwok against Mr Ho, Ms Quat and Mr Or that they had made false statements or claims at the 2016 Legislative Council Election are well-founded.  The court expresses no view on those allegations.

DISPOSITION

15.  The applications for leave to apply for judicial review are dismissed.

16.  The principles for making an award of costs against an unsuccessful applicant in an application for judicial review are well established (see Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841).  The Court of Final Appeal has made it clear that an award of costs against an applicant should not be made unless there are special or unusual circumstances which justify such an award, and the discretion of making an award of such costs should be sparingly exercised. There is no special or unusual circumstance such as would justify an award of costs against the Applicant in the present case.  Accordingly, I make no order as to costs.