張德榮 v. 黃思文 總選舉事務主任 AND ANOTHER

HCAL89/2017
[2018] HKCFI 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 89 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for judicial review dismissed.

Observations for the Applicant:

   The application for leave to apply for judicial review is dismissed on the ground the application is not reasonably arguable.

  In the Notice of Application for Leave to Apply for Judicial Review dated 21 March 2017 (“Form 86”), the Applicant alleges that the 2^nd Putative Respondent is entitled to the Right of Abode in a foreign country because (i) her husband is a UK citizen, and therefore automatically acquires citizenship of the European Union, (ii) as such, he and his spouse (ie the 2^nd Putative Respondent) are entitled to stay and work in the European Union for 3 months without any formality, (iii) after 3 months, they can continue to stay in the European Union provided that they can prove that they have sufficient income or financial resources to support their living in the European Union, (iv) the 2^nd Putative Respondent (through her husband) has, in this manner, acquired the right of abode in a foreign country, and (v) hence, she does not satisfy the requirement under Article 44 of the Basic Law that the Chief Executive of the HKSAR shall be a person with no right of abode in any foreign country, or the requirement in Section 13 of the Chief Executive Election Ordinance (Cap 569) that a person is eligible to be nominated as a candidate at an election for the office of the Chief Executive if (inter alia) he/she has no right of abode in any foreign country.

  It is clear from a perusal of the relevant Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, in particular Article 3(1) thereof, that the Directive only applies to European Union citizens who “move to or reside in a Member State other than that of which they are a national, and to their family members … who accompany or join them.” There is no allegation, or evidence, that the 2^nd Putative Respondent’s husband has moved to or resided in any Member State of the European Union, or the 2^nd Putative Respondent has accompanied or joined her husband to reside in such Member State. It follows that the EC Directive has simply no application to the 2^nd Putative Respondent’s husband or to her.

  In the Applicant’s affirmations filed herein, he has sought to raise other grounds to question the 2^nd Putative Respondent’s qualification to stand as a candidate at an election for the office of the Chief Executive, or to be appointed as the Chief Executive, including the allegation that she has not ordinarily resided in Hong Kong for a continuous period of not less than 20 years. These grounds are not mentioned in the Form 86 and therefore cannot be relied upon by the Applicant in the present application. In any event, they have plainly no substance.

  The present application is completely without merits. Accordingly, I make an order nisi that the Applicant shall pay the costs of the 1^st and 2^nd Putative Respondents, to be taxed if not agreed. Such order shall become absolute unless an application is made within 14 days to vary the order.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1