HCAL 120/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 120 OF 2010

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REASONS FOR DECISION

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Facts

1.  The applicant claims to have been residing at a house erected in Tong Yan San Tsuen since the year 2000.  He says that he is therefore eligible to be registered as an elector to vote in the forthcoming village representative (resident) ordinary election of Tong Yan San Tsuen pursuant to the provisions of the Village Representative Election Ordinance (Cap 576) (the Ordinance).  However, his registration as an elector for the village, an “Existing Village” within the meaning of the Ordinance, has been successfully objected to by an objector who disputes the applicant’s claim of residence in the village at the material times.  In this regard, it should be noted that section 15(4)(a) and (b) of the Ordinance provide that a person is not eligible to be registered as an elector unless he is a resident of the village concerned and has been a resident of the village for the 3 years immediately before the date of application for registration. The objection was upheld by a revising officer on 24 September 2010, and that decision was maintained by the revising officer on review on 4 October 2010, pursuant to provisions in section 19 of the Ordinance and sections 3(2), 4(4) and 7 of the Village Representative Election (Registration of Electors) (Appeals) Regulation (Cap 576A).

2.  The applicant seeks leave to launch judicial review proceedings to challenge the respective decisions of the revising officer, notwithstanding that section 19(2) of the Ordinance provides that the determination of the revising officer is “final”.  The applicant maintains that the challenge is important to him because not only is he deprived by the decisions of the revising officer of his right to vote in the forthcoming village representative election, but they also deny him of the opportunity to be nominated as a candidate in the election.  This is because section 22(1) of the Ordinance, governing eligibility to be nominated as a candidate, lays down various residence requirements.  In particular, section 22(1)(d) provides that only a person who “is registered, and eligible to be registered, as an elector for the Village” is eligible to be nominated as a candidate.

3.  The applicant complains that there has been procedural impropriety at the hearings before the revising officer – the revising officer was biased against him and unfairly placed an “impossible” burden of proof on him to establish residence.  Moreover, the applicant alleges that the decisions were Wednesbury unreasonable.  He asks that the matter be dealt with urgently so that he may be registered as an elector and vote in the election, and that he may be nominated as a candidate in the election.

4.  Time is not on the side of the applicant.

5.  In accordance with the provisions of the Ordinance, a final register of electors for the village has already been published (section 17(1)(b) of the Ordinance requires the compilation and publication of a final register of electors not later than 20 October in each year).  More importantly, in accordance with section 5 of the Electoral Procedure (Village Representative Election) Regulation (Cap 541L), the candidate nomination period has been determined to be from 13 to 26 November 2010.  The actual election is to take place in January next year, in accordance with section 20 of the Ordinance.

6.  Due to the urgency of the matter, the Court heard the applicant on an ex parte basis on 18 November, even though the transcripts of the hearings before the revising officer were not yet available and therefore it was quite impossible to determine whether the applicant had shown a reasonably arguable case on the merits.  The purpose of the hearing was limited to deciding whether the matter should be dealt with urgently or whether some form of interim relief, even before the grant of leave, should be granted, if so warranted, to preserve the applicant’s position.

7.  After the hearing, the Court decided against taking any such course, and these are the reasons.

Finality clause

8.  Part 3 of the Ordinance governs who may vote at an election.  Amongst other things, it requires the publication of a provisional register of electors for a village not later than 27 August in each year, and a final register of electors not later than 20 October in each year, by the electoral registration officer: section 17(1). Section 19(1) goes on to provide that a person who is dissatisfied with a decision of the electoral registration officer may appeal against the decision to a revising officer.  As mentioned, there is a review procedure by the revising officer of his own decision provided under sections 4(4) and 7 of the Village Representative Election (Registration of Electors) (Appeals) Regulation. Section 19(2) of the Ordinance provides that the determination of a revising officer is “final”.

9.  It is well-established law that such a general finality clause does not restrict in any way whatsoever the power of the courts to issue certiorari to quash either for jurisdictional defects or for error of law on the face of the record; nor does it affect their power to award a declaration that a decision or order made by a statutory body is invalid: de Smith’s Judicial Review (6^th ed), para 4-020.

10.  Moreover, article 35 of the Basic Law and article 10 of the Hong Kong Bill of Rights (article 14 of the International Covenant on Civil and Political Rights (ICCPR)) both guarantee the right of access to court.  One must further bear in mind the constitutional right to vote guaranteed under article 26 of the Basic Law and article 21(b) of the Hong Kong Bill of Rights (article 25(b) of the ICCPR).  The right to vote is without doubt the most important political right: Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, para 164.  But cf Mok Charles v Tam Wai Ho [2010] 1 HKLRD 261 (CA), a decision – under appeal – which only turned on article 82 of the Basic Law (concerning the Court of Final Appeal’s power of final adjudication ).

11.  At this leave stage, the Court is quite satisfied that it is reasonably arguable that the finality clause provided in section 19(2) of the Ordinance does not bar an application for judicial review.

Urgency

12.  However, this does not answer the question as to whether the proposed challenge should be dealt with urgently, before the nomination period is to close and/or before election is to take place.

13.  In a non-election year, this question does not arise.  An application for judicial review may simply take its normal course, and if successful, the final register may be rectified, or the mistake in question may be corrected in the provisional register of the following year.  But not so in relation to an election year, which is the situation faced by the Court in the present case.

14.  The position is further complicated by the fact that not only does the applicant wish to be registered as an elector to vote in the election, but he also wishes to be nominated as a candidate in the election and his registration as an elector is a prerequisite for his valid nomination.

15.  Should the Court intervene urgently, if possible, to deal with the matter?

Registration as elector

16.  It must be appreciated that the Ordinance and related legislation set a very tight timetable.  I have already referred to the various provisions governing time.  The provisional register of electors has to be published not later than 27 August of the year: section 17(1)(a) of the Ordinance.  A review of a revising officer’s initial decision must be determined on or before 5 October: section 7(2) of the Village Representative Election (Registration of Electors) (Appeals) Regulation.  The final register of electors must be published not later than 20 October: section 17(1)(a) of the Ordinance.  Furthermore, the election must take place not earlier than 3 months and not later than 1 month before the new term of the office of the village representative concerned is to begin (section 20(5) of the Ordinance) – the new term of office is to begin on 1 April next following the ordinary election: section 7(2)(a) of the Ordinance.

17.  As for nomination of candidates, the nomination period shall not be less than 7 days and shall end not less than 12 days before the polling day: section 5(3) of the Electoral Procedure (Village Representative Election) Regulation.

18.  In those circumstances, as a matter of practicalities, it is highly unlikely if not quite impossible that a challenge against a revising officer’s decision on registration as elector can be finally dealt with before the election, so as to enable the applicant, if successful, to vote in the election.

19.  Moreover, it is highly doubtful whether the legislature had ever intended a court to tamper with, as it were, the “final register” before an election, even if it were able to deal with the application for judicial review in time before election day and the application were successful.  The public has an interest in knowing who has been registered as an elector in an election (and that is why the final register must be published and is open to public inspection).  After all, elections must be publicly held and transparent.  Furthermore, the candidates running in an election also have an interest in knowing, with certainty, who is and who is not an elector, so as to tailor their election campaigns accordingly.

20.  The position is an a fortiori one in relation to interim relief. It is almost self-evident that it is wholly undesirable, save in the most exceptional and rarest of cases, to grant any interim relief directed at the election process, particularly at the holding of election on election day, pending determination of the substantive application for judicial review.  The interest, or potential interest of the applicant, must be balanced against the interest of the public (including of course the interest of the electors and candidates) in having a smoothly-run election, free from any interruptions that are other than absolutely necessary.

21.  So far as the election result is concerned, I accept that an applicant who merely wishes to be registered as an elector and vote in the election may not be qualified to present an election petition to challenge the election result, on the ground that he has been wrongly prevented from registering as an elector and thus there has been a material irregularity in relation to the election as provided in section 39(1)(iv) of the Ordinance.  This is because section 40 provides that an election petition questioning an election may be lodged only by 5 or more electors entitled to vote at the election, or by a person claiming to have been a candidate at the election.

22.  In other words, unless the applicant can get at least 5 electors or a candidate to present an election petition for him, he is in no position to challenge the election result.  In this regard, it should be noted that section 39(2) of the Ordinance provides that an election may be questioned “only by an election petition lodged under section 40”.  In other words, even if the applicant were to be successful in his application for judicial review, the Court, sitting in its judicial review jurisdiction, would still have no power to grant any relief directed at the election result.

23.  However, whilst ultimately everything must depend on the facts of an individual case, it would appear to be most unlikely that the election result could be upset simply because one person had been wrongly refused registration as an elector.

Nomination as candidate

24.  However, in the present case, the applicant does not only wish to be registered as an elector to vote in the election; he wishes to be nominated as a candidate to stand in the election as well.  As mentioned, failing registration as an elector, he is not eligible to be nominated as a candidate under section 22(1) of the Ordinance.  Does this fact make any difference to the analysis above in terms of the Court’s dealing with the application for judicial review urgently or in terms of the Court’s granting interim relief pending the determination of the substantive application?

25.  In my view, the answer must be “no”.  When it comes to nomination as a candidate, the matter is covered entirely by the Court of Appeal’s decision in Lau San Ching v Liu Appollonia [1994] 3 HKC 122.  In that case, the nomination papers of the three applicants as candidates for district board elections to be held on 18 September 1994 were rejected by a returning officer on the ground that they had not ordinarily resided in Hong Kong for the 10 years immediately preceding the date of their nomination and thus they were not qualified for nomination as candidates under section 18(2) of the then Electoral Provisions Ordinance (Cap 367) (not adopted as law after 1997).  They applied for judicial review to challenge the decisions of the returning officer.  The matter was urgently heard by Mayo J (as he then was) who dismissed the applications for judicial review.  The appeals from Mayo J’s decision were heard and decided one week later, less than 10 days before election day. 

26.  By a majority (Litton and Nazareth JJA), the Court of Appeal decided that the process of “election” covered the nomination stage, and therefore the complaints of the applicants came within the wording of section 30(1)(a)(iii) of the Electoral Provisions Ordinance so that what they sought to impeach could only be done by an election petition under section 31 of that Ordinance.  Section 30(1)(a)(iii) of the Ordinance provided for questioning an election by an election petition on the ground that the person declared to have been elected was not duly elected by reason of “any material irregularity relating to that election or poll or count in respect of that election”.  The Court emphasised that section 30(2) of the Ordinance provided that no election might be questioned except by an election petition presented under section 31.  

27.  Dissenting on this point only, Godfrey JA (as he then was) took the view that the provisions in the Ordinance did not absolutely bar applications for judicial review; however, pre-election intervention by the court through judicial review should be refrained from, unless very compelling reasons existed for its doing so.  This was because, after the election, the remedy by way of election petition would always be available to the aggrieved candidate.  His Lordship therefore thought that compelling reasons for pre-election intervention were rarely likely to be found (p 129C/D to E/F).

28.  In my view, the present case is on all fours with Lau San Ching insofar as nomination is concerned.  Whether under the majority view or under Godfrey JA’s dissenting view, the application for judicial review, insofar as it relates to nomination, should not be entertained, for the simple reason that the election result may be challenged, post-election, by an election petition.  In this regard, it should be noted that section 39(3) of the Ordinance specifically includes the nomination proceedings and the decisions of the returning officer within the meaning of the word “election”.

29.  Mr Philip Wong, appearing for the applicant, argued that his client would not be able to take out an election petition because an election petition may, as mentioned, only be presented by 5 or more electors entitled to vote at the election, or by a person claiming to have been a candidate at the election: section 40.

30.  I do not accept this argument.  First, the Court of Appeal in Lau San Ching clearly took the view that the applicants there, whose nominations were rejected by the returning officer, could take out an election petition afterwards to challenge the election result.  Litton JA (as he then was) said at pp 126H to 127A:

“Further support for this view is given by s 31 which deals specifically with the position of persons like the appellants who have been excluded from the list of nominated candidates. Plainly the appellants here would have the right to present an election petition, if they so wished, after polling. The words of s 31 are wide enough to cover their cases. What they complain of in essence is a material irregularity in the election process. Their complaints, in my judgment, come plainly within the wording of s 30(1)(a)(iii). It follows that what they seek to impeach can only be done by an election petition presented under s 31.” (emphasis added)

It should be noted that section 31 of the Electoral Provisions Ordinance, referred to by Litton JA in the extract, provided that:

“An election petition may be presented either by 10 or more electors entitled to vote at the election, or by a person alleging himself to have been a candidate at the election.”

31.  Secondly, it has to be carefully noted that similar to section 31 of the Electoral Provisions Ordinance, section 40(b) of the Ordinance provides that an election petition questioning an election may be presented by a person “claiming to have been a candidate at the election”.  The word “candidate” is defined in section 2(1) of the Ordinance to mean “a candidate who is nominated for election as a village representative”.  However, section 40(b) does not say that a petition has to be presented by a “candidate”; it says it may be presented by somebody “claiming to be” a candidate.  In this regard, the case law has drawn a distinction between a person nominated to be a candidate in an election and a validly nominated candidate, and in my reading of the Ordinance, the same distinction is drawn in the provisions.  Thus, section 27(1) and (2) speak of “whether or not a person is validly nominated as a candidate for an election” and “persons who are validly nominated as candidates for an election”.

32.  The position has been examined in detail in Harford v Linskey [1899] 1 QB 852.  In that case, the relevant statute provided that an election petition might be presented by a person “alleging himself to have been a candidate at the election”.  The statute defined “candidate” to mean a person elected, or having been nominated, or having declared himself a candidate for election.  The petitioner of an election petition was nominated for election; however, his nomination was wrongly rejected.  At issue was whether he was entitled to present the election petition.  Wright J, giving the judgment of the Divisional Court, gave the proper interpretation of the words “a person alleging himself to have been a candidate” in the following terms (at p 859):

“The words “a person alleging himself to have been a candidate” cannot of course mean that a mere allegation without any colour of foundation in fact would suffice.  Such a merely false allegation would be properly dealt with in a summary way.  But the words used seem designed to express something wider than absolutely valid candidature, and they are at any rate consistent with the view that any person who was in fact a candidate may present and maintain a petition, just as persons who voted in fact may do whether or not they had a right to vote.  Nor does there seem to be any sufficient reason why the words should be limited even to persons who have been in fact nominated in due form.  It is quite possible that an intended nomination of a person may have fallen through or have been prevented in such a way that the election of another person may have been invalid – as, for instance, if the town clerk refused to supply a nomination paper, or if, by design or negligence, he, in exercising his important duty under Sched. III.; Part 11., r. 6, filled up a nomination paper so imperfectly as to avoid the nomination, or if, as in Howes v. Turner, he issued a bad notice of election, and in any such case it can hardly have been intended to deprive the aggrieved person of the right to petition.” (emphasis added)

33.  At the end of the judgment, Wright J observed (at p 862):

“Our decision does not involve the proposition that in every case a person whose nomination has been rejected on the ground of disqualification, or want of qualification, can maintain a petition. We do not understand it to be laid down in the Bangor Case that a nomination cannot ever be rejected except for informality in the form or presentation of it. If the nomination paper is, on the face of it, a mere abuse of the right of nomination or an obvious unreality, as, for instance, if it purported to nominate a woman or a deceased sovereign, there can be no doubt that it ought to be rejected, and no petition could be maintained in respect of its rejection.”

34.  In other words, there is really nothing to stop an intending candidate, in the position of the applicant, to submit the necessary nomination papers to the returning officer, with a view to standing in the forthcoming election.  It is a matter for the returning officer to decide whether the intending candidate has been “validly nominated” or not.  In my view, save in a clear case of a mere abuse of the right of nomination or of an obvious unreality (or of any other similarly obvious situations), such an intending candidate, if he is prevented from standing in election, may be entitled to challenge the election result on the ground of material irregularity, by presenting an election petition as a person claiming to have been a candidate at the election pursuant to section 40(b) of the Ordinance.

35.  In any event, the likelihood is that the intending candidate will be able to persuade at least 5 of his supporters to present an election petition to challenge the election result for him.  At the hearing, Mr Wong did not suggest any expected difficulty in finding 5 supporters of his client to do so.

36.  That being the case, so far as the complaints against nomination are concerned, on the authority of Lau San Ching, which is binding on this Court, they cannot be entertained pre-election by way of judicial review.  Redress may only be sought post-election by means of an election petition.

37.  In those circumstances, there is no question of the Court dealing with the matter urgently before the nomination period is to close, or of granting any interim relief which may have the effect of interfering with the nomination period or with the holding of the election on election day.

Outcome

38.  For these reasons, the Court has, at the end of the hearing on 19 November 2010, made the following order/directions:

(1) Insofar as the intended application for judicial review is directed at the applicant’s alleged entitlement to nomination as a candidate in the subject election,

(a) leave to apply for judicial review shall be refused; and

(b) therefore there is no question of dealing with the proceedings on an urgent basis or of granting any interim relief.

(2) Insofar as the intended application for judicial review is directed at the exclusion of the applicant from the subject final register of electors only,

(a) the proceedings shall not be dealt with on an urgent basis and no interim relief shall be granted;

(b) the applicant shall have 14 days from 19 November 2010 to review the relevant transcripts of hearing to be obtained and, if he so wishes, to revise his grounds of application for leave and/or to file further evidence in support thereof; and

(c) the application for leave shall then be dealt with by the court in the normal manner.

(3) Costs be reserved.