周國明 v. 民政及青年事務局局長 AND ANOTHER

HCAL 2786/2025

[2026] HKCFI 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2786 OF 2025

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DECISION

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A.  Introduction

1.  This application arises out of the circumstances of two separate – but perhaps linked – electoral processes, one governed by a statutory regime and the other not.

2.  The central question which arises on this interlocutory application is whether there is a proper basis, and whether it is on balance just and convenient, to grant interim interlocutory injunctive relief so as to suspend the coming non-statutory election because of the failure to have conducted the statutory election process, which might ordinarily have been expected to have occurred beforehand.

3.  The application was commenced by the Applicant’s Form 86 dated 17 December 2025. That application named the Secretary for Home and Youth Affairs (“SHYA”) and the District Officer (Islands) (“DO(Is)”) as the 1^st and 2^nd Putative Respondents. Following my earlier directions, on 29 December 2025 they filed an Initial Response to the application, raising arguments including that (1) the application was directed against the wrong ‘target’, and (2) there were in any event insufficient merits for the grant of leave to apply for judicial review.

4.  Therefore, also arising for present determination are the questions as to (1) whether the Applicant should be given permission to amend his application so as to challenge an apparent decision of the Electoral Affairs Commission (“EAC”), and (2) whether there should be the grant of leave to apply for judicial review.

5.  The matter was brought on for urgent oral hearing on 30 December 2025. At that hearing, the Applicant appeared in person and the SHYA and the DO(Is) were represented by Mr Ernest Ng of Counsel. During the hearing, I was provided with further material which has again been referenced in post-hearing correspondence which I have taken into account, together with the further affirmation filed by the Applicant.

6.  At the end of the hearing, I granted a partial ‘interim interim’ injunction, pending the delivery of this reserved Decision on 2 January 2026. This is my Decision.

B.  Background

7.  The Applicant is an indigenous inhabitant of the Yung Shue Ha Village (“YSH Village”) on Lamma Island. He makes the application in the circumstances following the death of Chow Yuk Tong (“Chow”), who passed away on 28 September 2025. Prior to his death, Chow held the positions of: (1) Chairman (“RC Chairman”) of the Lamma Island (South) Rural Committee (“LSRC”); (2) Executive Committee Member (“ExCo Member”) of the LSRC; and (3) Indigenous Inhabitant Representative (“IIR”) of the YSH Village. As a result of Chow’s death, vacancies arose in each of those positions.

8.  As it happens, the Applicant is himself a member of the LSRC. He is a ‘Special Member’, being a ‘Local Community Leader’. He is also an ExCo Member of the LSRC, for its current term which commenced on 1 April 2023 and will end on 31 March 2027. He described himself as representing numerous registered indigenous inhabitant electors, and says the he has sufficient public interest in this case.

9.  The Applicant’s complaint is that the DO(Is) has made arrangements for a by-election to be held on 7 January 2026, to fill the vacancies in the ExCo Member position and the RC Chairman position of the LSRC arising from the death of Chow. Upon filling the vacancy of the ExCo Member, the election of the RC Chairman is scheduled for 7 January 2026.

10.  I am told that there was only one nomination to fill the vacancy for ExCo Member, and that as a result the approval and confirmation of that person being elected to that post would have been given on 31 December 2025. It is that approval and confirmation which I restrained by my order of 30 December 2025, on a temporary basis until the giving of this Decision or further order. I did that on the basis that it was appropriate to ‘hold the ring’ pending this Decision, and because had there been more than one nomination to fill the vacancy for ExCo Member the by-election would have been held on 7 January 2026, and the short delay did not seem to me to create any real prejudice to any relevant party.

11.  The Applicant asserts that there were various public law breaches in failing to hold the by-election for the IIR of YSH Village prior to the by-elections for ExCo Member and RC Chairman. Such a failure would mean that there is no IIR of YSH Village who can participate in the election of ExCo Members and/or the RC Chairman – and, indeed, would mean that no IIR of YSH Village could seek to become an ExCo Member and/or RC Chairman.

12.  In brief, the Applicant asserts that – notwithstanding his numerous letters requesting arrangements for the by-election of the IIR for YSH Village to be made immediately – the failure first to fill the IIR vacancy was a breach of statutory duties owed under sections 12 and 29 of the Rural Representative Election Ordinance Cap 576 (“RREO”), or was an otherwise unlawful omission or abuse of powers by the SHYA and DO(Is).

13.  There is some apparent chronological merit in the Applicant’s assertion, as is evident from the various provisions dealing with the electoral processes. I can deal with the statutory and non-statutory processes each in turn.

C.  Statutory Electoral Process

14.  An IIR is an office holder of the office of the representative, where the relevant rural locale is an indigenous village or composite indigenous village. The election of an IIR is governed by the RREO with various pieces of subsidiary legislation. This is, therefore, the statutory electoral regime I have already mentioned.

15.  The electoral process is overseen and conducted by the EAC, but plainly involves at least assistance from the Home Affairs Department (“HAD”), for whom the SHYA is ultimately responsible. Though the statutory duties thereby arising may be the subject of dispute, I do not think it necessary to seek to resolve them at this juncture.

16.  There are two types of IIR election, being (1) an ordinary election, which occurs every four years, and (2) a by-election, which occurs upon the vacancy of an IIR office during an ongoing term of office.

17.  For present purposes, the main provisions of the RREO are to be found in sections 12 and 21, which are as follows:

12.    Director to declare vacancy in office of rural representative

If a vacancy occurs in the office of rural representative for a Rural Area, the Director shall, by notice published in the Gazette, declare the existence of the vacancy within 21 days after becoming aware of the vacancy.

…

21.    Rural by-election to be held to fill vacancy in office of rural representative

(1) Subject to subsections (2) and (3), the Electoral Affairs Commission shall, in accordance with the EAC Regulations, arrange for a rural by-election for a Rural Area to be held in the following circumstances and not otherwise –

(a) on the making of a declaration under section 12 as to the existence of a vacancy in the office of rural representative for the Rural Area;

(b) on the making of a declaration under section 29(2) that an election for the Rural Area has failed, or has failed to the extent mentioned in section 29(2)(b);

(c) on the making of a declaration under section 30(1) that the proceedings for an election for the Rural Area have been terminated; and

(d) on the making of a declaration under section 30(3) that an election for the Rural Area has failed, or has failed to the extent mentioned in section 30(3)(b).

(2) The Electoral Affairs Commission is not required, on the making of a declaration that an election for a Rural Area has failed as provided in section 29(2)(a), to arrange for a rural by-election for the Rural Area to be held if the election declared to have failed is a rural by-election that was held on the making of another declaration that an election for the Rural Area has failed as provided in section 29(2)(a).

(3) A rural by-election to fill a vacancy in the office of rural representative for a Rural Area is not to be held within the 4 months preceding the end of the current term of office of the Rural Representative concerned.

18.  The Director referenced in section 12 is defined in the RREO as the Director of Home Affairs. Hence, the two sections materially provide that within a short time (21 days) of becoming aware of the vacancy in the office of Rural Representative, the Director shall publish a notice or declaration in the Gazette of that vacancy. Upon the making of that declaration, the EAC shall arrange for a rural by-election to be held.

19.  It is fair to point out that section 21 does not state any time period within which the by-election must be held, though section 21(3) requires that it not be held within the four months preceding the end of the current term of office of the Rural Representative concerned.

20.  Reference can, however, be made to section 6 of the Electoral Procedure (Rural Representative Election) Regulation Cap 541L, which provides that:

6.    Director of Home Affairs to publish rural by-election notice if a rural by-election is to be held

Subject to section 21(2) and (3) of the Election Ordinance, as soon as practicable after a declaration referred to in section 21(1)(a), (b), (c) or (d) of that Ordinance is made, in order to hold a rural by-election for the purposes of section 21(1) of that Ordinance, the Director of Home Affairs shall publish in the Gazette a notice which states –

(a) the name of the Rural Area for which the rural by-election is to be held;

(b) the number of Rural Representatives (specifying whether they are Resident Representatives, Indigenous Inhabitant Representatives or Kaifong Representatives) to be returned for the Rural Area at the rural by-election;

(c) the date for holding the rural by-election;

(d) the nomination period determined under section 5 within which nomination forms for the rural by-election are to be delivered to the Returning Officer;

(e) the address of the office of the Returning Officer at which nomination forms must be delivered;

(f) that nomination forms must be delivered during ordinary business hours;

(g) that a poll will be held on the polling day if the number of validly nominated candidates for the Rural Area exceeds the number of Rural Representatives to be returned for that Rural Area at the rural by-election; and

(h) any other information that the Director of Home Affairs considers appropriate.

21.  This section, which is in a Part of the Regulation providing other powers and placing obligations upon the Director, requires the Director to act “as soon as practicable” after the relevant declaration has been made, so as to hold the by-election for the purposes of section 21(1) of the RREO. Though I acknowledge the clear argument to the contrary, including perhaps by reference to its heading, the section itself does not suggest that the obligation on the Director is triggered only by the EAC asking him to comply with that obligation. Hence, and in any event, it seems to me to be at least reasonably arguable that the provisions together place some onus on the relevant persons to make arrangements to fill the vacancy within relatively short order.

22.  In this case, the Director has not in fact given notice of the by-election, and the EAC has not in fact made arrangements for the by-election.

23.  By virtue of section 6(1)(a) of the Electoral Affairs Commission Ordinance Cap 541 (“EACO”), the EAC has power to issue guidelines setting out its policies for the conduct of IIR elections and by-elections.

24.  The schedule for by-elections by the EAC was adopted and set out in its Report on the 2023 Rural Ordinary Election dated 14 April 2023. The schedule is that in the year of a Rural Ordinary Election (“ROE”) the first round of by-election would be held in November/December of the same year. For the subsequent second and third years, by-elections would be held twice a year in April/May and November/December. In the fourth year after the ROE, and to take account of the statutory requirement that no by-election should be held within the four months preceding the end of the current term of office, there would only be one by-election, to be held in May/June of that year.

25.  I understand that the last by-election was held on 25 April 2025. Therefore, translated to the present term of office, that would mean that the schedule envisaged that there would be a further by-election in November/December 2025, with the next by-election to be held in May/June 2026.

26.  This schedule – as proposed by the HAD – was endorsed by the EAC, so that rural by-elections should be held according to that schedule unless there are special circumstances that warrant a departure from the scheduled time: see §§11.49-11.51 of the Report.

27.  As I have already indicated, Chow died on 28 September 2025. It seems that the relevant section 12 declaration or notice was given on 17 October 2025. Subject perhaps to being triggered by the EAC requiring or making arrangements, the relevant notice of the by-election ought to have been given as soon as practicable thereafter. At first blush, therefore, it might be thought that the by-election could and should have been held in accordance with the anticipated and published schedule, in November/December 2025.

28.  However, from a footnote in the Initial Response – presumably provided on good information – it seems that the EAC decided not to hold the November/December rural by-election, because of resources drained by the 2025 Legislative Council General Election and the need to avoid potential confusion between two elections held in close proximity of time. It is this apparent decision on the part of the EAC which leads to the Applicant wishing to expand his application so as to challenge that decision.

29.  In passing, I would say that I do not know if the decision taken by the EAC, and its reasoning, has been published. But – unless I am mistaken – it seems that it was not known to the Applicant, and it also seems it was not referenced in the correspondence with the Applicant which preceded his launching these proceedings.

D.  Non-Statutory Electoral Process

30.  An elected IIR sits on a rural committee, which is an organisation established under the Societies Ordinance Cap 151. The functions and compositions of each rural committee are governed by its own constitution.

31.  The LSRC’s functions include the governance of local areas, and the promotion of the quality of life of locals, and cooperating with the Government.

32.  The LSRC is made of two general tiers, the General Assembly (“GA”) and the Executive Committee (“ExCo”). An IIR is automatically a member of the GA. The ExCo is elected from the members of the GA. The RC Chairman is elected from members of the ExCo, and each ExCo Member may stand as candidate to become the RC Chairman. But the vote for the RC Chairman is made by each member of the GA.

33.  The full membership of the LSRC – and hence its GA – is 23. This comprises 8 IIRs, 8 Rural Representatives (“RRs”), 2 Fishermen Representatives and 5 Community Leaders. I am informed that only 17 of the 23 GA seats have been filled, and that there are 6 vacancies. As it happens, both the offices of IIR and RR for YSH Village are vacant.

34.  Whilst the constitution of the LSRC provides that the election of the IIR is to be governed by the RREO, the election/by-election to the offices of the ExCo and RC Chairman are governed by the Model Rules for Rural Committee Elections (“Model Rules”). The Model Rules were published by the HAD, with the consensus of the Heung Yee Kuk and 27 rural committees. The Model Rules are not created under, and do not derive authority or legitimacy from, any ordinance.

35.  On their face, the Model Rules are not applicable to rural representative elections which are governed in accordance with the RREO. However, the Model Rules do take precedence over and above any conflicting electoral arrangements provided in RC constitutions.

36.  Under the Model Rules at §§4.1 and 4.2, (1) office holders elected at an ordinary election hold office for the four years beginning on 1 April next following the ordinary election, and vacate office at the end of that period, and (2) persons elected in by-elections – such as the RC Chairman or ExCo Member – hold office from the date on which the result of the by-election is declared, and vacate office on the expiry of that term of office. In other words, persons elected to office through by-elections hold the post for the remaining period of the particular electoral term.

37.  The Model Rules also materially provide at §6 that a vacancy occurs when, amongst other things, a person elected dies, and the date of vacancy takes effect on the date of his death. Under §12.3, in case the office of RC Chairman becomes vacant, the DO concerned “shall arrange for a by-election as soon as practicable to fill the vacancy”, and §12.4 provides that in case the office of Chairman/Vice-Chairman becomes vacant, the election of ExCo Members shall precede the election of Chairman/Vice-Chairman, though nomination and by-election for the vacancies may be conducted at different time slots on the same day.

38.  I also take note that §12.3(c) provides that in case the office of Chairman becomes vacant, the Vice-Chairman shall act as the Chairman to attend to the business of the RC until the vacancy of the office of Chairman is filled.

39.  There is also the requirement in §§12.5 and 12.6 for the office of Vice-Chairman, Executive Committee Member or GA Member becoming vacant to be filled through by-election held within six months after the occurrence of the vacancy, though not within the four months preceding the end of the current term of office of the seat concerned. I accept that part of the reason for the desire to fill the vacancy within that period is as a result of the important public duties to be performed by the relevant persons.

40.  The Model Rules at §20.1 provide that no poll is to be held if the number of validly nominated candidates does not exceed the number of vacant seats. However, approval and confirmation of being elected uncontested shall be obtained from the Returning Officer (“RO”), before a candidate formally fills a vacancy. It is the relevant DO who shall serve as the RO. Indeed, it is for that reason that the Applicant has directed some of his complaint at the DO(Is).

E.  The Two Processes Together

41.  As I have indicated above, the thrust of the complaint made by the Applicant appears to make some chronological sense against the two electoral processes:

(1)  The RC consists of two tiers, being the GA and ExCo.

(2)  An IIR is automatically a member of the GA (as is a ‘Local Community Leader’).

(3)  The ExCo is elected from members of the GA.

(4)  Members of the ExCo may become candidates for the office of RC Chairman.

(5)  Members of the GA may vote for the RC Chairman.

42.  Unless and until the IIR for YSH Village is chosen through a by-election, such a person cannot be present as a member of the GA of the LSRC. Therefore, that person is neither eligible to seek to become an ExCo Member, making him or her eligible to stand as RC Chairman, nor eligible to vote in either of the by-elections to fill the vacancies of ExCo Member and RC Chairman.

43.  To put it another way, the logical flow is that the membership of the GA should first be established through election and any necessary by-election, before the smaller circle elections are held for the other posts drawn from, and voted upon by, the GA membership.

44.  On the other hand, I acknowledge the point made both at the hearing and in the subsequent correspondence that there are numerous vacancies for Rural Committees, not just the LSRC – in fact, across 16 Rural Committees. There is also another RC Chairman vacancy that arose from the death of a GA member (in that case the death of an RR rather than an IIR). Hence, it can be acknowledged that the relevant necessary by-election would be for the purpose of filling numerous vacancies on numerous Rural Committees.

45.  As has been pointed out on behalf of the SHYA and DO(Is), if as a matter of principle a RC Chairman by-election is to be withheld – notwithstanding that it should be carried out as soon as practicable – until the IIR vacancy for YSH Village is filled, the same principle would effectively mean that the vacancies of all other GA member seats of the various Rural Committees would have to be filled before the RC Chairman and/or ExCo Member by-elections could be held. Yet these GA member seats may be produced by different elections under different regimes, of which elections of Fishermen Representatives and Community Leaders are governed by the Model Rules, while elections of IIRs and RRs are governed by the RREO.

46.  I accept that this point tends to suggest a real degree of separation – that is, the lack of any direct link – between the two electoral processes.

F.  Whether Leave to Amend

47.  In the above circumstances, it seems to me to be appropriate in the exercise of my discretion to permit the Applicant to amend his Form 86 so as to include an intended challenge to the apparent decision of the EAC not to hold a by-election in accordance with the schedule endorsed by it.

48.  The EAC will be added as 3^rd Putative Respondent, and the Form 86 should be amended by the Applicant briefly to identify the impugned decision of the EAC, and the relevant alleged breach(es) of public law.

G.  Whether Leave to Apply for Judicial Review

49.  Further, the above materials traversed by me seem to me to identify that the Applicant has met the threshold for the grant of leave to apply for judicial review. In my view, he has demonstrated reasonably arguable public law grounds of review with realistic prospect of success, as warrants the grant of leave to challenge the impugned decisions or acts or omissions of the EAC, SHYA and DO(Is) – each of whom thereby becomes a respondent to the substantive application for review.

50.  For the avoidance of doubt, I would state that I am satisfied to the necessary standard for the grant of leave to apply for judicial review that the Applicant has demonstrated sufficient standing.

51.  I leave it to the parties to liaise, with a view to proposing for my consideration the appropriate directions to bring the matter to a substantive hearing on an early date. Reference should be had to Practice Direction 26.1.

H.  Whether Interim Relief

52.  The principles applicable as to the grant or refusal of interim injunctions in the public law context are well-settled. Essentially, the ordinary American Cyanamid principles apply, subject to modification to take account of that public law context.

53.  Generally speaking, the applicant will need to establish a strong prima facie case. This is, of course, particularly so where the interim relief sought is or may be tantamount to the grant of final relief. Though the question of adequacy of damages can be considered, the decision to grant or withhold interim injunctive relief in public law cases will usually not be made on the basis of adequacy of damages, but on the balance of convenience test.

54.  Ultimately, the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense of granting an injunction to a party who fails to establish his right at the trial, or alternatively in failing to grant an injunction to a party who succeeds at trial.

55.  However, further in relation to the question of balance of convenience, the Court takes a wider view than just the interests of the immediate parties to the application. The Court must take into account the public interest in the balancing exercise. The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge.

56.  Save in exceptional circumstances, interim relief may only be granted if leave to apply for judicial review has been obtained. Further, the existence of an early hearing date for the substantive application for judicial review may be a good reason for the Court to refuse to grant interim relief.

57.  In the current case and circumstances, I take into account in the weighing exercise the following matters in particular:

(1)  I have granted leave to apply for judicial review.

(2)  The merits of the application are certainly sufficient to justify the grant of leave to apply for judicial review, and may have merits stronger than that (at least in some regards).

(3)  There is an obvious logic in seeking first to fill the GA membership – including through any necessary IIR by-election – prior to the holding of the smaller circle (ExCo Member and RC Chairman) by-elections.

(4)  On the other hand, as a general rule, it may not be practical – and it may not even be possible – to fill every GA vacancy before any by-election for a RC Chairman or ExCo Member is held.

(5)  The factual circumstances of the particular present case appear to be somewhat rare.

(6)  As regards the LSRC in particular, it is responsible for organising the Tin Hau Festival, next scheduled for June 2026, which requires the LSRC to be properly functional in the coming period.

(7)  If the interim relief is granted, the duties of the RC Chairman can nevertheless be performed by the Vice-Chairman in the interim period, so that the LSRC can probably remain appropriately functional.

(8)  But to grant the interim relief would risk preventing the replacement of the RC Chairman as soon as practicable and filling the vacant ExCo Member position within the six-month period provided for under the Model Rules.

(9)  Part of the reason for those time frames includes the recognition that the overall and varied functions of an RC Chairman are important, not least in reflecting the views in public opinion of indigenous villagers.

(10)  The questions arising in these proceedings have far wider potential impact than merely on the Applicant, the IIR for YSH Village, and/or the LSRC.

(11)  The potential impact is on a far greater range of individuals, representatives, villages and Rural Committees.

(12)  There is a scheduled by-election, due to take place in May/June 2026 (some 5 to 6 months hence).

(13)  The remaining electoral period is about 15 months, expiring on 31 March 2027.

(14)  Part of the Applicant’s avowed purpose for bringing these proceedings is to seek to ensure the entire rural by-election process is conducted lawfully, fairly, reasonably and properly – for reasons which include preventing the recurrence of the current situation regarding the YSH Village IIR.

(15)  With appropriate directions, it should be possible to have a relatively early hearing date of the substantive application for judicial review.

58.  After having carefully considered matters in the exercise of my discretion, I have come to the view that the balance of convenience ultimately points against the grant of the interim injunctive relief sought. Therefore, I decline to grant it.

59.  As a consequence, I also lift the previous ‘interim interim’ injunction granted by me to hold up the ExCo Member election.

I.  Costs

60.  I propose to reserve all questions of costs to the substantive hearing.