MOK KA KIT v. PRESIDENT OF THE LEGISLATIVE COUNCIL AND OTHERS

HCAL 189/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 189 OF 2016

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D E C I S I O N

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A. Introduction

1.  This decision concerns the question of whether the applicant has sufficient locus to bring this judicial review.

2.  On 25 October 2016, the applicant applied for leave to judicially review (a) the Clerk’s decision on 12 October 2016 to confirm the validity of the Legislative Council Oath (“the LegCo Oath”) taken by the 3^rd respondent, Ms Lau (“Ms Lau”) on that day; and (b) the President’s decision dated 18 October 2016 allowing Ms Lau to retake the oath afresh at another sitting of the Legislative Council (“the LegCo”).

3.  The applicant’s grounds in support of the judicial review are effectively that Ms Lau as a LegCo Member-elect declined and neglected to take the oath on 12 October 2016 in failing to take it in accordance with the legal requirements, and hence the Clerk’s decision and the President’s decision are wrong in law and should be quashed.  He also sought a declaration that Ms Lau be disqualified from entering the office of the LegCo Member.

4.  On 18 November 2016, this court granted an ex parte leave to the applicant to apply for judicial review.

5.  On 30 November 2016, the Court of Appeal handed down its judgment in Chief Executive of the Hong Kong SAR v The President of the Legislative Council [2017] 1 HKLRD 460 (CA), a case which also relates to a challenge against the validity of the LegCo Oath purported to have been taken by another two LegCo Members-elect.

6.  At paragraph 84 of the judgment, Lam VP highlighted that the court must examine carefully if someone has sufficient locus to effectively challenge a LegCo Member’s qualification by way of judicial review if that person himself is not an elector in the constituency of the member concerned.  Lam VP observed and explained at paragraphs 81 to 84 as follows:

“81. In my view, these statutory jurisdictions have a common origin in the prerogative writ of quo warranto by which the authority of a person holding a public office could be challenged in courts.  In Hong Kong, the prerogative writ has become obsolete and been largely (if not wholly) overtaken by statutory jurisdictions. Section 21J is a general provision, applicable to any public office created by any enactment whilst Section 73 specifically applies to a person acting or claiming to be entitled to act as a member of LegCo.  Proceedings under Section 21J must be brought by way of judicial review, see Section 21K(1) of the High Court Ordinance and they are subject to the rules governing applications for judicial review.  Leave is therefore required and it is subject to the usual time constraint in applications for judicial review.  On the other hand, Section 73 is to be brought by way of some other form of civil proceedings and leave is not required.  However, the time limit is 6 months: section 73(2) must be construed purposively as referring to 6 months from the date on which the person first acted or claimed to be entitled to act whilst disqualified, otherwise the time limit will be meaningless. Further, Section 73 proceedings can only be brought by an elector or the Secretary for Justice, see Section 73(1).  In the case of proceedings by an elector, such proceedings would be stayed pending the payment of security for costs, a sum to be ordered by the court which shall not exceed $20,000 in respect of each member challenged, see Section 73(5) and (6).

82. Section 73(7) provides that proceedings within the scope of that section can only be brought in accordance with that section.  In other words, it would not be open to persons coming within the scope of this section to bring proceedings by other means like an application for judicial review under Section 21J.

83. However, the Court of Final Appeal in Albert Ho v Leung Chun Ying v Ho Chun Yan, Albert (2013) 16 HKCFAR 735 held that election petition is not the only means to challenge an election and judicial review is an available alternative for those who are not eligible to bring proceedings under section 33 of the Chief Executive Election Ordinance.  By the same token, it may be arguable that Section 73(7) does not preclude someone who is not an elector to commence proceedings under Section 21J in respect of a disqualified legislator.  As the Chief Judge observed, the Chief Executive is not a person who is entitled to proceed under Section 73.  He has to proceed under Section 21J to seek the remedy of declaration and injunction against the Interested Parties in HCAL 185/2016.

84. In any event, given that Section 73 was enacted to protect members of the LegCo against unlimited challenges to their offices (by way of security for costs and time limit for application), I believe even in cases where an applicant is outside the scope of that section and an application is brought by way of judicial review, the court must bear such protection in mind in assessing whether leave should be granted.  In particular, given that judicial review should not be permitted when an alternative remedy by way of Section 73 is available, the court should consider whether an applicant who is not an elector in the constituency of the member concerned should be allowed to make the challenge and enquire whether the Secretary for Justice or any elector is willing to bring proceedings under Section 73.  The court must also examine the locus standi of such an applicant carefully if neither the Secretary for Justice nor any elector in that constituency is willing to bring proceedings under Section 73.” (emphasisadded)

7.  In the meantime, on 2 December 2016, the Secretary for Justice (“the SJ”) commenced four sets of proceedings under section 73 of the Legislative Council Ordinance (Cap 542) (“the LCO”) against four LegCo Members-elect, including Ms Lau, seeking declarations that the LegCo Oaths taken by them were invalid and that they had been disqualified from entering the office of a LegCo Member.  The SJ and the Chief Executive (“the CE”) also commenced at the same time four sets of related judicial reviews against the President or the Clerk challenging their respective decisions in effectively confirming the validity of those LegCo Oaths taken by those four LegCo Members-elect (including Ms Lau).

8.  In light of Lam VP’s above observations, on 7 December 2016, the court gave directions to the applicant to attend the court on 15 December 2016 to address the court on whether the applicant had sufficient locus in bringing this judicial review seeking the reliefs against the respondents, specifically drawing the applicant’s attention to Lam VP’s above observations.[1]

9.  On 12 December 2016, the applicant’s solicitors wrote to the court seeking a stay of these proceedings, pending the determination of the abovementioned judicial review in HCAL 225/2016 and section 73 proceedings under HCMP 3381/2016 commenced by the CE and the SJ seeking similar reliefs as against the respondents as in the present case.  The solicitors also asked the court to postpone the address on the question of the applicant’s locus until after a lift of the stay, if granted.

10.  At the same time, Ms Lau’s solicitors wrote to the applicant’s solicitors on 12 December 2016 asking him to withdraw the judicial review application as he no longer had any sufficient interest in the matter given that the CE and the SJ had already commenced similar proceedings against Ms Lau.  Ms Lau’s solicitors also indicated that if the applicant did not withdraw the application by noon on 13 December 2016, she would proceed to instruct counsel to attend the hearing on 15 December 2016 addressing the question, among other, of the applicant’s locus.

11.  On 13 December 2016, the court excused the applicant’s attendance at the directions hearing on 15 December 2016, and directed that the applicant to submit in writing by 19 December 2016 whether he would withdraw the judicial review, and if not, as to why the court should not set aside the ex parte leave previously granted to him for lack of sufficient locus.

12.  On 14 December 2016, on the application of Ms Lau’s solicitors through the letter dated 13 December 2016, the court further directed that the applicant shall serve his submissions on locus on Ms Lau, and that Ms Lau shall file and serve any submissions in response by 21 December 2016.

13.  The parties have respectively filed their written submissions on whether the applicant has sufficient locus to bring this judicial review, and whether the ex parte leave granted to him should be set aside and the application be dismissed.

B.    Does the applicant have sufficient locus to bring this judicial review

14.  In my view, the ex parte leave application should be set aside and the leave application be dismissed for lack of sufficient locus.  My reasons are these.

15.  It is trite that a court will not grant leave to apply for judicial review unless it is satisfied that the applicant has a “sufficient interest in the matter to which the applicant relates”.  See: section 21K(3) of the High Court Ordinance (Cap 4); Order 53, rule 3(7) of the Rules of the High Court (Cap 4A).

16.  The requirement for an applicant in judicial review to have sufficient interest in the matter under challenge before he or she could bring the challenge is in general to vet out an applicant who could be regarded as a “meddlesome busybody”.

17.  In Re Wong Chi Kin (unreported, CACV 80/2014, 26 September 2014, Lam VP, Cheung and Yuen JJA), Lam VP (giving the judgment of the Court of Appeal) summarized at paragraph 11 the relevant principles on locus in public law as follows:

“Though the requirement of standing in public law is a liberal one, an applicant must still have some interest in the matter to warrant leave being granted to him to challenge a public decision. Leave would not be granted to a meddlesome busybody, see R v Monopolies and Mergers Commission, ex p Argyll Group Pic [1986] 1 WLR 763 at p.773. The relevant principles about standing in bringing an application for judicial review were considered by Rose LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386. Standing goes to jurisdiction and it has to be considered in the legal and factual context of the whole case. Merits are important. But there are other factors as well: the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, the nature of the breach of duty against which relief is sought.”[2] (emphasis added)

18.  In this judicial review, the underlying substantive and effective reliefs sought are the declarations that the oath taken by Ms Lau is invalid and void, and that she has since been disqualified from entering the office of a LegCo Member and hence not entitled to so act.  The reliefs sought against the Clerk and the President in seeking to quash their respective decisions are only ancillary to the aforementioned underlying substantive declaratory reliefs sought.

19.  In this respect, section 73 of the LCO provides the proper and principal legal avenue for an elector to take out legal proceedings seeking those substantive declarations against a LegCo Member who has been disqualified but has continued to act or claimed to be entitled to act as a LegCo Member.  A judicial review mounted by an elector seeking similar or related reliefs, even if arguably is permissible, can at best be regarded as ancillary to the section 73 proceedings.  See: CE v The President of LegCo, supra, at paragraphs 81 ‑ 83, per Lam VP.

20.  At the same time, as observed by Lam VP in CE v The President of LegCo, supra, at paragraph 84, section 73 of the LCO was enacted to protect members of LegCo against unlimited challenges to their offices (by way of the provisions thereunder regarding the 6-month time limit for application and the requirement for the plaintiff to give security for costs).  Bearing this in mind, on a proper and purposive construction considered in the context of limiting any unnecessary or repeated challenges against a LegCo Member, the “elector” envisaged under section 73(1) who is entitled to take out the relevant proceedings has to be one who is a registered elector in the constituency to which the purported disqualified LegCo Member belongs.  If otherwise, many and unwarranted challenges could well be brought by any other electors in the entire Hong Kong against any one particular LegCo Member, which cannot be the objective intention of this provision.

21.  When the two abovementioned observations are further considered in the following context, it is clear to me that unless the applicant in a judicial review challenging the qualification of a LegCo Member is also an elector in the constituency of the challenged LegCo Member, that applicant in general should not be regarded to have sufficient interest in bringing the judicial review:

(1) On the question of locus, it is relevant and necessary to consider whether there are better placed challengers than the applicant who could and should bring the challenge.  See: Re Wong Chi Kin, supra, at paragraph 11.

(2) An elector in the challenged LegCo Member’s constituency and the SJ are clearly better placed challengers who could bring a challenge under a section 73 proceedings (and if appropriate an ancillary judicial review).[3] See also: CE v The President of LegCo, supra, paragraph 84.

(3) Further, given that an elected LegCo Member is elected by his or her electorate in the constituency to represent them in the LegCo, a person who is not a registered elector in that constituency in my view has at most only a remote and very indirect interest in whether that LegCo Member has or has not been disqualified.  This could be illustrated by the fact even if that member is disqualified, that very person cannot take part as an elector in any by-election held for that constituency to elect a new member to present them at the LegCo.

(4) Insofar as that person is saying that he has a purported public interest in seeing that only properly qualified LegCo Member should act in such an office, this is in my view insufficient to found him the necessary locus in light of the existence of the SJ and the registered electors in that constituency as challengers who clearly has a much greater and direct interest in bringing a section 73 proceedings and a related judicial review to advance the said public interest.

(5) In the premises, a person who is not a registered elector in the constituency of a LegCo Member whose qualification is sought to be challenged clearly does not have sufficient interest, and thus locus, to bring a judicial review against that LegCo Member.

22.  Applying the above considerations, given that the present applicant is not an elector in Ms Lau’s constituency, he does not have the necessary sufficient interest and hence locus in bringing this judicial review.  The ex parte leave should be set aside and this judicial review application be dismissed.

23.  In any event, as pointed out above, on 2 December 2016, the SJ, who was a better placed challenger, indeed brought a section 73 proceedings and a related judicial review (together with the CE) in relation to Ms Lau, seeking declarations that the oath taken by her was invalid and that she has been disqualified from entering the office of a LegCo Member.  By then, the applicant no doubt has no more sufficient interest and locus in pursuing this judicial review, and the application should have been withdrawn by the applicant, failing which, be dismissed.

C.   Conclusion

24.  For the above reasons, I would set aside the ex parte leave previously granted to the applicant and dismiss his leave application on the basis that the applicant does not have sufficient locus to bring the present judicial review.

25.  There are no reasons why the applicant should not bear the costs of Ms Lau incurred in this judicial review,[4] including her costs (including counsel’s costs) incurred in preparing the hearing on 15 December 2016 and the written submissions dated 20 December 2016 (and filed on 21 December 2016) to oppose the applicant’s locus.  I therefore so order.