FAN GARY KWOK WAI v. CHAN YUEN MAN, AMY (RETURNING OFFICER FOR THE NEW TERRITORIES EAST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

FAMV Nos 307 and 324 of 2019

[2019] HKCFA 50

FAMV No 307 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 307 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCAL NO 804 OF 2018)

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FAMV No 324 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 324 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCAL NO 844 OF 2018)

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 (HEARD TOGETHER)

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REASONS FOR DETERMINATION

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Mr Justice Cheung PJ (for the Appeal Committee):

1.  At the conclusion of the hearing, we dismissed these two applications for leave to appeal.  We now give our reasons.

FAMV 307/2019

2.  Ms Chow Ting was an intending candidate to run for the Legislative Council By-election for the Hong Kong Island Geographical Constituency to be held on 11 March 2018.  On 18 January 2018, she submitted her election nomination form to the returning officer to run as a candidate for the by-election.  However, on 27 January 2018, the returning officer notified Ms Chow that she had declared her nomination as a candidate in the by-election to be invalid.  Essentially, she was not satisfied that Ms Chow would uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.  Ms Chow was therefore precluded from standing for the by-election. In the by-election, Mr Au Nok Hin received the highest valid votes cast and was declared by the returning officer to be elected for the Hong Kong Island Geographical Constituency. 

3.  By an election petition[1] taken out under sections 61 and 62 of the Legislative Council Ordinance[2] to question the election of Mr Au on grounds of material irregularities,[3] Ms Chow successfully challenged the returning officer’s decision to disqualify her from running for the by-election for want of procedural fairness.  Holding that this constituted a material irregularity in the by-election, Chow J further declared that Mr Au was not duly elected as a member of the Legislative Council, and neither Ms Chow nor any of the candidates standing in the by-election was duly elected in his place.[4]

4.  Mr Au,[5] who took a neutral stance in the election petition and did not put in any evidence or submissions in the trial of the election petition,[6] now sought leave to appeal to this court to contend that the judge was wrong to declare that he was not duly elected as a member of the Legislative Council.[7]  It was opposed by the returning officer, whereas Ms Chow took a neutral stance.

FAMV 324/2019

5.  The facts in FAMV 324/2019 are broadly similar.  It concerned the Legislative Council By-election for the New Territories East Geographical Constituency also held on 11 March 2018.  On 25 January 2018, Mr Lau Wing Hong submitted his election nomination form to the returning officer for that by-election to run as a candidate.  The returning officer also decided that Mr Lau would not uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region, and accordingly notified Mr Lau on 31 January 2018 that she had declared his nomination to be invalid.  In the by-election held without the participation of Mr Lau as a candidate, Mr Fan Gary Kwok Wai won and was declared by the returning officer to be elected for the New Territories East Geographical Constituency. 

6.  Mr Lau took out an election petition[8] to question the election of Mr Fan on grounds of material irregularities.[9]  He was likewise successful in challenging the returning officer’s decision to disqualify him from running for the by-election for want of procedural fairness.  Chow J, who also heard the election petition, decided that it constituted a material irregularity in the by-election, and declared that Mr Fan was not duly elected as a member of the Legislative Council, and neither Mr Lau nor any of the candidates standing in the by-election was duly elected in his place.[10]

7.  Mr Fan,[11] who took a neutral stance in the election petition and expressly indicated to the court that he would abide by the court’s judgment,[12] now sought leave to appeal to this court to contend that the judge was wrong to declare that he was not duly elected as a member of the Legislative Council in the by-election.   The application was opposed by both the returning officer and Mr Lau.

Arguments for leave to appeal

8.  Although separately represented, both Mr Au and Mr Fan[13] through counsel ran similar arguments in their respective applications for leave to appeal. 

9.  For Mr Au, it was contended that he was the “Plan B” candidate for the political camp to which both Ms Chow and Mr Au belonged.  Given the disqualification of Ms Chow and given that the returning officer’s decision could only be challenged post-election,[14] Mr Au was put forward as a substitute (Plan B) candidate.  His candidacy was successful, and it was therefore wrong, counsel contended, for the judge to exercise his discretion to declare that Mr Au – Ms Chow’s replacement – was not duly elected, after deciding that Ms Chow herself had been wrongfully disqualified from running for the by-election.  On behalf of Mr Au, it was submitted that the following question ought to be submitted to this court for decision:

“In deciding whether the winning candidate is duly elected in a Legislative Council election where the petitioner’s nomination was unlawfully declared to be invalid by the returning officer, should the court take into account whether the winning candidate stood for the election on behalf of the petitioner in the first place?”

10.  Counsel argued that the judge was wrong in making the declaration that Mr Au was not duly elected because he overlooked the fact that Mr Au was Ms Chow’s replacement, and if the consequence of Ms Chow’s seeking (and obtaining) vindication against the returning officer’s (wrongful) decision to disqualify her from running for the by-election was the invalidation of her replacement’s election and the loss of his seat in the Legislative Council, that would put Ms Chow in a real dilemma as to whether to seek redress in respect of the wrong done to her.  While the returning officer was the only person at fault throughout the process, counsel argued, all other innocent persons – including the electors who voted for Mr Au – would have to pay for it.  This could not be the true legislative intent under the Ordinance, nor the correct way for the judge to exercise his “discretion on relief” after deciding that Ms Chow was wrongfully disqualified. Counsel suggested that if the law were otherwise, Ms Chow’s constitutional right to institute proceedings protected under article 35 of the Basic Law would be infringed. 

11.  Counsel also suggested in argument that maybe a disqualified candidate like Ms Chow could take out judicial review proceedings, rather than an election petition, post-election, to challenge the disqualification decision of the returning officer, without seeking to disturb the election results.  He submitted that whether the disqualified candidate could do so despite the specific wording of section 61(2) of the Ordinance,[15] was also a question fit to be placed before this court for determination.

12.  Former counsel for Mr Fan ran arguments to similar effect in their written submissions. It was said that both Mr Fan and Mr Lau belonged to the pro-democracy camp.  Mr Fan ran in and won the “primary election” organised by the camp on 15 January 2018 and became the camp’s only representing candidate in the by-election – Mr Lau did not participate in the “primary election”.  Mr Fan won the by-election by a substantial margin and his status as the winning candidate should be maintained and upheld by the court.  On his behalf, it was submitted that the following question should be submitted to this court for decision:

“In deciding whether the winning candidate is duly elected in a Legislative Council election where the petitioner’s nomination was unlawfully declared to be invalid by the returning officer, should the court take into account whether the winning candidate is truly and widely representative of those who are entitled to vote for him in that he is the only candidate who had won the primary election organised by the pro-democracy camp and stood for the election as the only candidate representing the pro-democracy camp and had beaten the second runner-up of the opposite political camp by 30,858 votes.”

13.  In their written submissions, former counsel for Mr Fan argued that to remove the winning candidate in these circumstances was tantamount to depriving the relevant electorate of their representation in the Legislative Council.  The submissions relied heavily on the fact that Mr Fan won in the “primary election” organised by his camp to which Mr Lau also belonged (although he did not participate in it), and that Mr Fan won the by-election by a substantial margin.

Our views

14.  We were not persuaded by these arguments. 

15.  Both Ms Chow and Mr Lau took out an election petition to challenge the election results.  They asked the court, in their respective election petitions, to determine whether Mr Au (or Mr Fan) was duly elected in the by-election.[16] In their supporting affidavit/affirmation, they specifically asked the court to declare that Mr Au (or Mr Fan) had not been duly elected.[17]  This, it should be noted, was entirely consistent with the scheme and purpose of election petitions.  As section 61(1) and (2) of the Ordinance make clear, election petitions are the means by which an election of a member of the Legislative Council can be questioned.

16.  On the other hand, as mentioned, both Mr Au and Mr Fan, as respondents in the two election petitions, decided to take a neutral stance in the proceedings, well knowing that the proceeding put the validity of their elections in issue.  They chose not to participate in them and put forward no argument to defend the election results.  Mr Fan, in particular, wrote to the court saying that he would abide by the court’s decision, and the court excused his attendance at the hearing accordingly.[18]

17.  None of the points now raised before us was raised, or even hinted at, in the proceedings before the court below.  Naturally, the court did not deal with them.  But not only that.  The factual assertions, now made before us in the applications for leave to appeal and written submissions, to the effect that Mr Au was Ms Chow’s “Plan B” candidate, and Mr Fan and Mr Lau belonged to the same political camp although the former chose to run in the “primary election” and won whereas the latter did not participate in it, were not supported by any admissible evidence.  Moreover, Mr Fan’s assertions were positively disputed by Mr Lau through counsel at the hearing before us.  Further, no explanation was provided to the court regarding the dramatic change of position on the part of Mr Au and Mr Fan.

18.  We therefore agreed with counsel opposing the applications that Mr Au and Mr Fan should not be allowed to change their positions and run new arguments not run below – on the basis of factual assertions not supported by any evidence placed before the court below or before us – in support of their leave applications.  The Flywin[19] principles also apply.

19.  We also found their substantive arguments not reasonably arguable. 

20.  First, the factual basis of Mr Au’s case simply did not exist.  At the hearing before us, Ms Chow through counsel confirmed her position that she still asked for the unseating of Mr Au even though she took a neutral stance in his application for leave to appeal.

21.  As for Mr Fan, as mentioned, his assertions were disputed by Mr Lau who continued to maintain that he was not duly elected.

22.  Secondly and more fundamentally, section 67(2) of the Ordinance states that at the end of the trial of an election petition relating to a contested election, the court “must” determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead.  There is no room for the court not to make a determination on whether the elected candidate has been duly elected.  There is no discretion not to so determine.[20] It should not be confused with the making of a declaration which is a discretionary matter.  The only formal requirement for the court’s determination under section 67(2) is that it must be announced by means of a written judgment.[21]  Whether the court makes a declaration in terms of the determination is unimportant for the purpose of deciding what is to happen after the court’s determination.[22]  It is the court’s determination, as required by section 67(2), which matters.     

23.  The purpose of the relevant provisions in the Ordinance is to protect the integrity and fairness of the electoral process as well as the constitutional rights of Hong Kong permanent residents to vote and to stand in an election in accordance with law,[23] by specifying the grounds by which the election of a member of the Legislative Council can be impugned, these being contained in section 61(1) of the Ordinance.[24]  Once any one of these grounds is established, the court will then determine that the person whose election was challenged was not duly elected.  Nowhere in the Ordinance is the court given any discretion or power in these circumstances to allow that person to remain in office, much less is the court empowered to do so based on a consideration of political factors (such as those put forward by Mr Au and Mr Fan).  The choices given to the court, as section 67(2) makes clear, are restricted to determining whether the person, whose election is challenged, was or was not duly elected, and if not duly elected, whether some other person was duly elected instead.

24.  In each of the election petitions, the judge concluded that the petitioner was wrongly excluded from running for the by-election, thereby constituting a material irregularity in the election.  As a statutory ground for questioning the return of Mr Au/Mr Fan was made out,[25] he must be right in determining that they were not duly elected respectively.

25.  As regards the point raised by Mr Au and Mr Fan that judicial review proceedings (post-election) to challenge the decisions of the returning officers only were not available, since neither Ms Chow nor Mr Lau had taken out any such judicial review proceedings to challenge the returning officers’ disqualification decisions, the question as to whether such proceedings could be maintained in the light of section 61(2) of the Ordinance simply did not arise.  There was no question of granting leave on that basis.

26.  The right to institute proceedings under article 35 of the Basic Law was not engaged as both Ms Chow and Mr Lau took out an election petition to ask the court to determine whether Mr Au (or Mr Fan) was duly elected in the by-election, and they never complained that their rights under article 35 were impaired because they were not given an alternative choice to simply challenge the returning officers’ decisions without bringing into question the validity of the elections of Mr Au and Mr Fan.

Disposition

27.  Accordingly, the applications for leave to appeal were dismissed with party-and-party costs to the two returning officers and to Mr Lau – counsel for Ms Chow did not ask for costs.

FAMV 307/2019

FAMV 324/2019