LEUNG KIT HING, DORIS v. ELECTORAL AFFAIRS COMMISSION

HCAL 1016/2017

[2018] HKCFI 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1016 OF 2017

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D E C I S I O N

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INTRODUCTION

1.  On 6 December 2017, the Applicant made an application for leave to apply for judicial review of the decision (“the Decision”) of the Electoral Affairs Commission (“the EAC”) to arrange for a Legislative Council by-election (“the By-Election”) to be held on 11 March 2018 to fill, inter alia, the vacant seats arising from the disqualification of Mr Leung Chung Hang (“Leung”) and Ms Yau Wai Ching (“Yau”) from assuming office as members of the Legislative Council.

2.  On 22 January 2018, the Applicant made a further application for an interlocutory injunction to restrain the EAC from holding the By‑Election.

Basic facts

3.  The background facts leading to the disqualification of Leung and Yau from assuming office as Legislative Council members are well known and do not have to be repeated here.  On 15 November 2016, Au J handed down his judgment in HCAL 185/2016 and HCMP 2819/2016 declaring, inter alia, that the offices previously occupied by Leung and Yau as Legislative Council members had become vacant.  On 30 November 2016, the Court of Appeal dismissed Leung and Yau’s appeals against the judgment of Au J ([2017] 1 HKLRD 460).

4.  On 5 December 2016, the Clerk to the Legislative Council, by notices published in the Gazette, declared that the respective offices previously held by Leung and Yau as Legislative Council members had become vacant.

5.  On 25 August 2017, the Appeal Committee of the Court of Final Appeal dismissed Leung and Yau’s applications for leave to appeal against the judgment of the Court of Appeal ((2017) 20 HKCFAR 390)) (“the CFA Determination”).

6.  On 14 September 2017, the EAC announced that the By‑Election was planned to be held on 11 March 2018.

7.  On 1 December 2017, the Chief Electoral Officer published a notice in the Gazette announcing that the By-Election would be held on 11 March 2018, and the nomination period for the By-Election would run from 16 to 29 January 2018.

8.  As earlier mentioned, the Applicant commenced the present application for leave to apply for judicial review on 6 December 2017.  As explained by the Applicant at the hearing on 2 February 2018, her ground of the application is that, under Section 36(1)(e)(ii) of the Legislative Council Ordinance, Cap 542 (“the LCO”), the EAC should not arrange for the holding of the By-Election prior to the termination of the following proceedings:

(1) an application made by the Applicant to the Court of Final Appeal on 28 August 2017 to, inter alia, set aside the CFA Determination on the ground of alleged irregularity in the hearing on 25 August 2017; and

(2) her application to the European Court of Human Rights complaining about the disqualification of Leung and Yau from assuming office as Legislative Council members and/or the aforesaid legal proceedings in Hong Kong.

In what follows, unless otherwise expressly indicated, references to sections shall be references to the Legislative Council Ordinance.

DISCUSSION

9.  The following legislative provisions are relevant for the present purpose.  Section 35(1) states as follows:-

“The Clerk to the Legislative Council must, by notice published in the Gazette, declare the existence of a vacancy in the membership of that Council within 21 days after becoming aware of the vacancy.”

10.  Section 36(1), so far as relevant, states as follows:-

“The Electoral Affairs Commission must, in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541), arrange for a by-election to be held in the following circumstances and not otherwise -

(a) on the making of a declaration as to the existence of a vacancy in the membership of the Legislative Council under section 35;

(d) subject to sections 70A and 72(1A), on the Court’s making a determination under section 67 that a person whose election is questioned was not duly elected and that no other person was duly elected instead;

(e) if an appeal against a determination referred to in paragraph (d) is lodged to the Court of Final Appeal –

(i) on the Court of Final Appeal’s making a determination under section 70B that a person whose election is questioned was not duly elected and that no other person was duly elected instead; or

(ii) on the termination of the appeal proceedings in other circumstances.”

11.  Section 67 relates to determinations made by the Court of First Instance in election petitions, and Section 70B relates to appeals to the Court of Final Appeal against determinations made by the Court of First Instance under Section 67.

12.  On 5 December 2016, the Clerk to the Legislative Council, in accordance with Section 35(1), published notices in the Gazette declaring that the respective offices occupied by Leung and Yau as Legislative Council members had become vacant.  It follows that under Section 36(1)(a), the EAC is required to arrange for the By-Election to be held.

13.  The Applicant argues, however, that under Section 36(1)(e)(ii), the EAC should not arrange for the holding of the By-Election until “the termination of the appeal proceedings in other circumstances” which, according to the Applicant, includes the outstanding proceedings mentioned in paragraph 8 above.

14.  In my view, the Applicant’s argument is based on a misunderstanding or misinterpretation of Section 36(1)(e)(ii).  The “appeal proceedings” referred to there is a reference to appeal proceedings in the Court of Final Appeal against determinations made by the Court of First Instance in election petitions under Section 67.  The proceedings commenced by the Applicant mentioned in paragraph 8 above plainly do not come within the words “appeal proceedings” in Section 36(1)(e)(ii).  It follows that the EAC is correct in law to arrange for the holding of the By-Election.

15.  At the hearing on 2 February 2018, the Applicant sought to argue that Leung and Yau should not have been disqualified, and that their counsel failed to properly present their respective cases to the Court of Final Appeal on 25 August 2017.  Quite apart from the lack of substance in those arguments, it must be said that, as far as this court is concerned, the CFA Determination is final and conclusive.

16.  In short, the application for leave to apply for judicial review is not reasonable arguable.

17.  I also consider it to be plain that the Applicant lacks standing in this matter.  Leung and Yau, being the persons directly affected, were represented by highly experienced counsel and they fully participated in the relevant legal proceedings relating to their disqualification at all levels.  That being the position, I am unable to see how the Applicant can be said to have standing to mount another legal challenge on the same cause or matter.

disposition

18.  The Applicant’s application for leave to apply for judicial review, and her application for interim relief, are dismissed.

19.  On the question of costs, I bear in mind the Applicant’s requests that her applications should be disposed of on paper.  I also bear in mind that applications for leave to apply for judicial review are normally disposed of on an ex parte basis, and that even where the court directs an oral hearing and permits the putative respondent to attend the hearing to resist the leave application, the general rule is still that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent unless there are special or unusual circumstances which justify such an award (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, paragraphs 11 to 14 and 17).

20.  This having been said, it must be recognized that underlying the general position that applications for leave to apply for judicial review are disposed of on an ex parte basis is the assumption that the applications are properly formulated and presented, with the proposed grounds of judicial review being clearly, logically and succinctly set out in the Form 86 and properly supported by relevant evidence in the affidavit required to be filed under Order 53, rule 3(2) of the Rules of the High Court.  Increasingly, however, the court is faced with applications for leave to apply for judicial review which are not properly formulated or presented, and where the proposed grounds of judicial review are obscure or unintelligible.  The result is that the court cannot properly deal with the leave applications on an ex parte basis, but has to direct an oral hearing to determine the matter with the assistance of evidence and/or submissions from the putative respondent in order to do justice to both parties.  The present is such a case.

21.  Ultimately, the principle remains that costs lie in the discretion of the court which must retain the flexibility to make or refuse to make an award of costs as the particular circumstances of the case and justice warrant.   In determining the question of costs in this case, I also take into account the following matters:-

(1) the fact that the Applicant applies for interim relief, which normally it would not be just or convenient to grant against a public authority without it being given an opportunity to be heard;

(2) the obvious lack of merits of the applications; and

(3) the lack of standing on the part of the Applicant in this matter.

22.  In all the circumstances, I consider that the Applicant should pay the EAC’s costs of resisting the two applications, to be taxed if not agreed, and I so order.