WONG HIN WAI v. SECRETARY FOR JUSTICE

HCAL 51/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 51 OF 2012

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AND

HCAL 54/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 54 OF 2012

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REASONS FOR DECISION

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1. These two cases were heard together in view of the commonality in the issues being involved. In both cases, challenge is mounted against the disqualification provisions under Section 39(1)(b)(i) and (d) of the Legislative Council Ordinance [“the Impugned Provisions”] regarding their constitutionality. The main relief sought is in the following terms,

“A declaration that sections 39(1)(b)(i) and 39(1)(d) of the LCO are inconsistent with Articles 25, 26, 28 and 39 of the Basic Law of the Hong Kong Special Administrative Region and/or Articles 5(1), 5(4) and 21 of section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 and/or Articles 9(1), 9(4) and 25 of the International Covenant on Civil and Political Rights 1966, and are unconstitutional.”

2. The Applicant in HCAL 51 of 2012, Wong Hin Wai [“Wong”] was convicted in the Eastern Magistracy on 11 January 2012 of behaving in a disorderly manner in a public place, contrary to Section 17B(2) of the Public Order Ordinance Cap 245 in respect of an incident on 10 April 2011.  The magistrate sentenced him to 14 days’ imprisonment.  He lodged an appeal against the conviction and sentence.  He was granted bail pending appeal.  The appeal is unlikely to be heard before the nomination period for the 2012 Legislative Council [“LegCo”] Election.

3. The Legislative Council Election will be held on 9 September 2012.  The nomination period (14 days) is likely to be in the second half of July or early August 2012.

4. Wong intends to stand for election in the LegCo Election.  However, by reason of the Impugned Provisions, he is disqualified from being nominated unless he served his sentence in the meantime despite his appeal.  I will set out Section 39(1) to (4) below,

“(1) A person is disqualified from being nominated as a candidate at an election, and from being elected as a Member, if the person –

(a) is –

(i) a judicial officer; or

(ii) a prescribed public officer; or

(iii) an officer of the Legislative Council or a member of staff of The Legislative Council Commission; or

(b) has, in Hong Kong or any other place, been sentenced to death or imprisonment (by whatever name called) and has not either –

(i) served the sentence or undergone such other punishment as a competent authority may have been substituted for the sentence; or

(ii) received a free pardon; or

(c) has been convicted of treason; or

(d) on the date of nomination, or of the election, is serving a sentence of imprisonment; or

(e) without limiting paragraph (b), where the election is to be held or is held within 5 years after the date of the person’s conviction, is or has been convicted –

(i) in Hong Kong or any other place, of an offence for which the person has been sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine; or

(ii) of having engaged in corrupt or illegal conduct in contravention of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554); or

(iii) of an offence against Part II of the Prevention of Bribery Ordinance (Cap. 201); or

(iv) of any offence prescribed by regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541); or

(f) is –

(i) ineligible to be a candidate, or to be elected as a Member, at the election; or

(ii) disqualified from being a candidate, or from being elected as a Member, at the election,

because of the operation of this or any other law; or

(g) is a representative or salaried functionary of a government of a place outside Hong Kong; or

(h) is a member of any national, regional or municipal legislature, assembly or council of any place outside Hong Kong, other than a people’s congress or people’s consultative body of the People’s Republic of China, whether established at the national or local level; or

(i) is an undischarged bankrupt or, within the previous 5 years, has either obtained a discharge in bankruptcy or has entered into a voluntary arrangement within the meaning of the Bankruptcy Ordinance (Cap. 6) with the person’s creditors, in either case without paying the creditors in full.

(2) A person is also disqualified from being nominated as a candidate at an election if the person has been found under the Mental Health Ordinance (Cap. 136) to be incapable, by reason of mental incapacity, of managing and administering his or her property and affairs, but a person disqualified under this subsection is eligible for nomination as a candidate if, under that Ordinance, it is subsequently found that the person has become capable of managing and administering his or her property and affairs.

(3) A person is also disqualified from being elected as a Member if the person has been found under the Mental Health Ordinance (Cap. 136) to be incapable, by reason of mental incapacity, of managing and administering his or her property and affairs, but a person disqualified under this subsection ceases to be disqualified if, under that Ordinance, it is subsequently found that the person has become capable of managing and administering his or her property and affairs.

(4)  A person is also disqualified from being elected as a Member for a functional constituency (other than the District Council (first) functional constituency and the District Council (second) functional constituency) if, since the close of nominations, the person has ceased to have a substantial connection with the constituency.”

5. The Applicant in HCAL 54 of 2012, Leung Kwok Hung [“Leung”], who is an incumbent LegCo member, faced a similar dilemma.  On 19 March 2012, he was convicted of two charges of criminal damage, one charge of acting in a disorderly manner at a public gathering and one charge of behaving in a noisy or disorderly manner in a public place in the Kowloon City Magistracy.  He was sentenced on 20 March 2012 to 2 months’ imprisonment for the criminal damage charges, 5 weeks’ imprisonment for acting disorderly, 5 weeks’ imprisonment for behaving in a noisy and disorderly manner.  The magistrate also ordered a total of 2 months’ imprisonment to be served concurrently.  Leung lodged an appeal against conviction and sentence and he obtained bail pending appeal.  Again, it is unlikely that the appeal can be heard prior to the nomination period.  Leung also intends to stand for election in the LegCo Election.

6. By reason of his sentence, Leung also faced a motion to relieve him of his duty as LegCo member pursuant to Article 79(6) of the Basic Law, which provides,

“Article 79

The President of the Legislative Council of the Hong Kong Special Administrative Region shall declare that a member of the Council is no longer qualified for the office under any of the following circumstances:

(1) When he or she loses the ability to discharge his or her duties as a result of serious illness or other reasons;

(2) When he or she, with no valid reason, is absent from meetings for three consecutive months without the consent of the President of the Legislative Council;

(3) When he or she loses or renounces his or her status as a permanent resident of the Region;

(4) When he or she accepts a government appointment and becomes a public servant;

(5) When he or she is bankrupt or fails to comply with a court order to repay debts;

(6) When he or she is convicted and sentenced to imprisonment for one month or more for a criminal offence committed within or outside the Region and is relieved of his or her duties by a motion passed by two-thirds of the members of the Legislative Council present; and

(7)  When he or she is censured for misbehaviour or breach of oath by a vote of two-thirds of the members of the Legislative Council present.”

7. The motion was debated on 19 April 2012 in the LegCo.  Out of the 46 members who were present, 19 voted in favour of the motion and 25 voted against it.  One member abstained.  Since the motion did not attain the requisite majority, it was negatived.  Leung continued to serve as an incumbent LegCo member.

8. In his Second Affirmation, Leung set out the history of his previous convictions and sentences and his election results in the previous LegCo elections at paras 11 and 12.  I quote the relevant data,

“11. The following are the occasions when I was sentenced to imprisonment:

(1) On 5 June 1979, I was sentenced to one month’s imprisonment for Unlawful Assembly (contrary to section 18 of the Public Order Ordinance, Cap. 245)

(2) On 11 May 1999, I was sentenced to 14 day imprisonment suspended for 12 months for Contempt of legislative Council (contrary to section 17 of the Legislative Council (Powers and Privileges) Ordinance, Cap. 382).

(3) On 26 May 2000, I was sentenced to 7 day imprisonment for Contempt of Legislative Council (contrary to section 17 of the Legislative Council (Powers and Privileges) Ordinance, Cap. 382). On the same day, I was sentenced to 7 day imprisonment for a Breach of Suspended Sentence (contrary to section 109F the Criminal Procedure Ordinance, Cap. 221). The above sentences were to be served consecutively.

(4) On 27 March 2001, I was sentenced to 7 day imprisonment for Contempt of Legislative Council (contrary to section 17 of the Legislative Council (Powers and Privileges) Ordinance, Cap. 382)

(5) On 23 April 2002, I was sentenced to 2 weeks’ imprisonment for Contempt of Legislative Council (contrary to section 17 of the Legislative Council (Powers and Privileges) Ordinance, Cap. 382).

…

12. The following are my election results in the previous LegCo Elections in which I was nominated as a candidate:

(1) I received 18,235 votes in the 2000 LegCo Election and was not elected as a Legislative Council member in the 2000 LegCo Election. The percentage of votes which I received was 5.9%.

(2) I received 60,925 votes in the 2004 LegCo Election and was being elected as a Legislative Council member in the 2004 LegCo Election. The percentage of votes which I received was 14.1%.

(3) I received 44,763 votes in the 2008 LegCo Election and was being elected as a Legislative Council member in the 2008 LegCo Election. The percentage of votes which I received was 12.4%.

(4)  I received 108,927 votes in the 2010 LegCo By-election and was being elected as a Legislative Council member in the 2010 LegCo By-election.  The percentage of votes which I received was 79.7%.”

The relevant constitutional framework and the provisions relied upon

9. Article 66 of the Basic Law provides that the LegCo shall be the legislature of the Hong Kong Special Administrative Region.  Its composition is governed by Article 67.  At least 80 per cent of its membership shall be composed of Chinese citizens who are permanent residents of Hong Kong with no right of abode in any foreign country.

10. Article 68 is important, and I quote,

“Article 68

The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election.

The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage.

; The specific method for forming the Legislative Council and its procedures for voting on bills and motions are prescribed in Annex II: “Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures”

11. Annex II Part I set out the method for the formation of the LegCo, specifically prescribing the composition for the first three terms.

12. Article 69 provides that (apart from the first term), the term of office of the LegCo shall be four years.

13. Article 73 sets out the powers and functions of the LegCo and Article 74 provides for how bills may be introduced by members.

14. I have already referred to Article 79(6).

15. Therefore the Basic Law envisages that membership to the LegCo, which plays the important role of the legislature for Hong Kong, by election.  Article 26 of the Basic Law confers the rights pertaining to election, including LegCo election, to permanent residents.  It reads,

“Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.”

16. These are rights to be exercised in accordance with law.  The law is to be found in the Hong Kong Bill of Rights [“BoR”], Article 21 of which reads:

“ Right to participate in public life

Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions –

(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c)  to have access, on general terms of equality, to public service in Hong Kong.”

17. Chief Justice Li considered the permissible restrictions that could be imposed on fundamental rights and freedoms under Chapter III of the Basic Law on proper construction of Article 39 in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at paras 26 to 28.  As for rights protected both under the Basic Law and the BoR, His Lordship said at para 26,

“Thus, in the context of rights recognized by the ICCPR as applied to Hong Kong (whether or not such rights are also enshrined in the Basic Law), art 39(2) spells out the two requirements which any purported restriction must satisfy.”

The two requirements are: (1) prescribed by law; and (2) the restrictions shall not contravene the provisions of Article 39(1), viz it must be consistent with the ICCPR as applied to Hong Kong prior to 1 July 1997.

18. The Applicants said the Impugned Provisions are inconsistent with Article 21 of the BoR and Article 26 of the Basic Law.  They also relied on the right to equality under Article 25 of the Basic Law.

19. In addition, they asked the court to strike down the Impugned Provisions by reason of the curtailment of their rights to liberty, in particular their rights to bail pending appeal, with reference to Article 28 of the Basic Law and Article 5(1) and (4) of the BoR.

The proper approach in addressing the challenge based on Article 21 BoR and Article 26 of the Basic Law

20. In Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, A Cheung J (as he then was) had to consider what is the correct approach in determining whether a restriction is reasonable in the context of Article 21 of the BoR.  His Lordship held that the proper approach is to apply the proportionality test.  At para 73, he said,

“… Furthermore, for a right as fundamental as the right to vote, a restriction that is not proportionate to the achievement of the (legitimate) aim that it seeks to achieve and that goes beyond what is necessary to achieve that aim can hardly be said to be a ‘reasonable’ one.”

That was a conclusion reached after a full discussion and review of the relevant local and international authorities.  It was also premised on the proposition that despite the difference in the language between Article 3 of Protocol No 1 of the ECHR and Article 21 of the BoR, the substance of the rights are the same and European jurisprudence can provide guidance on the construction of the latter (see para 102).  His Lordship, in essence, applied the approach of Hirst v United Kingdom (No 2) (2006) 42 EHRR 41 to the local context in rejecting the justifications offered by the Government for the restriction on prisoner’s right to vote, see paras 104 to 108 of Chan Kin Sum.

21. In the present case, Mr Thomas SC (who also appeared for Secretary for Justice in Chan Kin Sum) repeated his contention that the court should not adopt the proportionality test, at least not a proportionality test with the requirement that the restriction is no more than what is necessary to achieve the legitimate aim.  In addition to cases he cited before A Cheung J, counsel referred to Solicitor v Law Society of Hong Kong  (2003) 6 HKCFAR 570 paras 31 to 34 for a proportionality test without any reference to necessity.  At para 31, the Chief Justice said,

“The limitation imposed must pursue a legitimate purpose and there must be reasonable proportionality between the limitation and the purpose sought to be achieved. These dual requirements will be referred to collectively as ‘the proportionality test’.”

22. Mr Thomas also submitted that conceptually the right to vote and the right to stand for election stand on different footings though both rights are protected under art 26 BL and art 21 BoR.  Thus the jurisprudence on the right to vote cannot be carried across for the purpose of resolving cases on the right to stand for election.  In this connection, counsel cited the decision of the Supreme Court of the United Kingdom in R (Barclay) v Lord Chancellor [2010] 1 AC 464 at paras 53 to 64 and the judgment of the Grand Chamber of the European Court of Human Rights in Zdanoka v Latvia (2007) 45 EHRR 17 paras 102 to 115.  Those cases concerned the rights under Article 3 of Protocol No.1 to the European Convention on Human Rights, which is in the following terms,

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

23. In Zdanoka, the Grand Chamber said at para 115(e),

“As regards the right to stand as a candidate for election, i.e. the so-called ‘passive’ aspect of the rights guaranteed by Art 3 of Protocol No 1, the Court has been even more cautious in its assessment of restrictions in that context than when it has been called upon to examine restrictions on the right to vote, i.e. the so-called ‘active’ element of the rights under Art 3 of Protocol No 1. In the Melnychenko judgment cited above, the Court observed that stricter requirements may be imposed on eligibility to stand for election to Parliament than is the case for eligibility to vote. In fact, while the test relating to the ‘active’ aspect of Art 3 of Protocol No 1 has usually included a wider assessment of the proportionality of the statutory provisions disqualifying a person or a certain group of persons from the right to vote, the Court’s test in relation to the ‘passive’ aspect of the above provision has been limited largely to a check on the absence of arbitrariness in the domestic procedures leading to disqualification of an individual candidate.”

24. Para 115(b) and (c) on implied limitations are also relevant for our purposes,

“(b) The concept of ‘implied limitations’ under Art.3 of Protocol No.1 is of major importance for the determination of the relevance of the aims pursued by the restrictions on the rights guaranteed by this provision. Given that Art.3 is not limited by a specific list of ‘legitimate aims’ such as those enumerated in Arts 8 to 11, the contracting states are therefore free to rely on an aim not contained in that list to justify a restriction, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention is proved in the particular circumstances of a case.

(c)  The ‘implied limitations’ concept under Art.3 of Protocol No.1 also means that the Court does not apply the traditional tests of ‘necessity’ or ‘pressing social need’ which are used in the context of Arts 8-11.  In examining compliance with Art.3 of Protocol No.1, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people.  In this connection, the wide margin of appreciation enjoyed by the contracting states has always been underlined.  In addition, the Court has stressed the need to assess any electoral legislation in the light of the political evolution of the country concerned, with the result that features unacceptable in the context of one system may be justified in the context of another.”

25. These passages provide some support for the submission of Mr Thomas on the difference between Art 21 of BoR and the application of the justification test in respect of other articles in the BoR, but only to the limited extent of the non-application of the traditional test of necessity.  The Grand Chamber explicitly referred to proportionality as one of the criteria for assessing compliance with Art 3 of Protocol No 1.

26. In Barclay, Lord Collins summarized the relevant European jurisprudence in several propositions set out at paras 52 to 64 of the judgment.  The relevant test can be found at paras 58 and 59,

“58. Sixth, limitations on the exercise of the right to vote or stand for election must be imposed in pursuit of a legitimate aim, must not be arbitrary or disproportionate, and must not interfere with the free expression of the opinion of the people in the choice of the legislature …

59.  Seventh, such limitations must not curtail the rights under article 3 to such an extent as to impair their very essence, and deprive them of their effectiveness.  They must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. …”

27. In the latest decision of the Grand Chamber on Art 3 of Protocol No 1, Scoppola v Italy (No 3) Application no 126/05, 22 May 2012, the general approach can be found at paras 83 to 84 of the judgment,

“83. Nevertheless, the rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and the Contracting States must be afforded a margin of appreciation in this sphere. The Court has repeatedly affirmed that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (see Hirst (no. 2) [GC], cited above, § 61).

84.  However, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52).  In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage.  Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.  Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see Hirst (no. 2) [GC], cited above, § 62).”

28. Similar statements can be found in the judgment in Frodl v Austria (2011) 52 EHRR 5.  At para 35 of the judgment, the court expressed the principle of proportionality in these terms,

“The principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and the circumstances of the individual concerned.”

29. These last two cases, like Chan Kin Sum, were about the right to vote.  But the principle of proportionality is equally applicable to the right to stand for election though stricter requirement can be imposed on eligibility to stand as compared with eligibility to vote.  Given the distinction between the role of a voter and the role of candidate for Legco election (who, if elected, would have to perform the duties of a Legco member), the legitimate aims for which reasonable restriction can be imposed can be different.  Thus, the criteria for eligibility for the latter could be considerably stricter than those for the former.  This is not disputed by Mr Dykes SC.  However, the criteria restricting the right to stand for election must still subject to the proportionality test as demonstrated by Zdanoka and Barclay, both of which were cases on right to stand for election.

30. The principle of proportionality has also been applied in the context of ICCPR.  In Nowak’s CCPR Commentary, 2^nd Edn para 27 at p 578-579, in the discussion of reasonable restriction in the context of the right to be elected under Article 25 of ICCPR (the equivalent of Article 21 of BoR), it is said that the restriction cannot be excessive or discriminatory and must be adequately justified.  At footnote 70, the learned author commented that the requirement of special justification was inferred by the Committee from the principle of proportionality.  Further at paras 48 to 49 (at p 592-3), the origin of the phrase “without unreasonable restrictions” was traced back to the Yugoslav-French proposal at the drafting stage.  After a review of the cases considered by the Committee, the learned author concluded at para 49,

“… it is difficult to draw general conclusions as to the permissibility of restrictions on democratic participation. Many questions remain controversial, for example: … whether persons convicted of minor criminal offences may be excluded from right to vote … In other words, whether specific restrictions on various political rights are reasonable may only be evaluated on a case-by-case basis by drawing on the principle of proportionality and taking into account the overall political situation of the State concerned.”

31. The proportionality test was adopted by Cheung J (as Cheung JA then was) in the context of right to stand for election under Article 21 of BoR in Lau San Ching v Liu, Apollonia (1995) 5 HKPLR 23.  Mr Thomas submitted that the test was agreed between the parties.  That may be so. However, as evident from the judgment, Cheung J also reviewed the relevant cases on the topic when His Lordship agreed to adopt the same approach.  Lau San Ching was cited by Cheung J in Chan Kin Sum at para 73.

32. In the context of election for the Medical Council, Chu J (as she then was) also applied the proportionality test with reference to Article 21 of BoR in Tse Hung Hing v Medical Council [2010] 1 HKLRD 111.  Though it was a judgment given after parties had agreed on the manner in which the case was to be disposed of, Her Ladyship did give reasons for making the order at the request of the parties.  It is also plain from the judgment that Her Ladyship did not simply endorse the agreed position of the parties (as she was entitled to).  Instead, Her Ladyship did give her independent consideration to the submissions of the parties and explained in her judgment why she held the restriction in question to be unreasonable.  At para 9 of her judgment, Her Ladyship applied the proportionality test.

33. Having considered the authorities and the submissions of the parties, I come to the conclusion that as a matter of Hong Kong law, whether a restriction is unreasonable in the context of Article 21 of BoR should be determined by reference to the following test,

(a)  Whether the restriction is imposed to pursue a legitimate aim;

(b)  Whether there is a rational connection between the aim and the restriction adopted;

(c)  Whether the restriction is proportionate.

34. In view of the European jurisprudence on Article 3 of Protocol No 1 discussed above (where a distinction was drawn with the necessity test under other articles of the ECHR), I refrain from using any criteria based on necessity or the third limb of the justification test laid down by the Chief Justice Li in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at p 349 in the context of right to equal treatment under Article 25 of the Basic Law.  The concept of “no more than necessary” in the context of that test has recently been discussed by Chief Justice Ma in Fok Chun Wa v Hospital Authority FACV 10 of 2011, 2 April 2012, at paras 75 to 77.

35. It does not matter whether the test is called a proportionality test or a reasonable test.  In the context of Article 21 of BoR, the criterion of proportionality (the third limb) is to ensure that the restriction does not curtail the rights in question to such an extent as to impair their very essence or to deprive them of their effectiveness, and there has to be a discernible and sufficient link between the sanction and the conduct and the circumstances of the individual concerned.  In the application of the test, the court must also have regard to the historical and current state of political development in Hong Kong.  This has been emphasized in the European jurisprudence, as summarized in the fourth proposition of Lord Collins in Barclay at para 56,

“Fourth, the content of the obligation under article 3 varies in accordance with the historical and political factors specific to each state; and for the purposes of applying article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features which would be unacceptable in the context of one system may be justified in the context of another …”

The history of the disqualification provision in the Impugned Provisions

36. In the Affidavit of the Secretary for Constitutional and Mainland Affairs, he set out the legislative history in Hong Kong regarding restrictions imposed on the right of a convicted person to stand for election.  He traced the first introduction of a similar provision to Clause 6(b) of the Urban Council Bill 1955, which was passed without any amendment.  The provision was in these terms,

“6. A person shall be disqualified for being elected or being nominated for election or being appointed or holding office as an ordinary member if he –

(a) holds any office of emolument under the Crown other than as a member of the Defence Force and Auxiliary Services or Hong Kong Police Reserve Force or any office of emolument in the gift or disposal of the Council or any committee thereof or having held such office has been dismissed therefrom;

(b) has in any part of Her Majesty’s Dominions or in any territory under Her Majesty’s Protectorate or in any territory in which Her Majesty has from time to time jurisdiction been sentenced by one of Her Majesty’s Courts to death or imprisonment (by whatever name called) for a term exceeding twelve months and has not either suffered the punishment to which he was sentenced or such other punishment as may by competent authority have been substituted therefor or received a free pardon;

(c) has been convicted of treason;

(d) is disqualified for being elected or being nominated for election or being appointed or holding office as an ordinary member under any enactment relating to corrupt and illegal practices;

(e) is a member of Parliament, assembly or council whether central or local of a foreign government or a salaried functionary of such government;

(f)  is an undischarged bankrupt or within five years before has either obtained his discharge in bankruptcy or has entered into a composition with his creditors, in either case, without paying his creditors in full.”

37. A similar provision was found in Clause 10(b) of the Urban Council Bill 1973 which was passed without any amendment.

“10. A person shall be disqualified for being elected or being nominated for election or being appointed or holding office as a mem ber if he –

(a) holds any office of emolument under the Crown (other than as a member of an auxiliary force) or any office of emolument in the gift or disposal of the Councilor any committee thereof or having held such office has been dismissed therefrom;

(b) has in any Commonwealth country been sentenced to death or imprisonment (by whatever name called) for a term exceeding twelve months and has not either suffered the punishment to which he was sentenced or such other punishment as may by competent authority have been substituted therefor or received a free pardon;

(c) has been convicted of treason;

(d) is disqualified from being elected or being nominated for election or being appointed or holding office as a member under any enactment;

(e) is a member of any Parliament. assembly or council. whether central or local, of a foreign country or a salaried functionary of a foreign government;

(f)  is an undischarged bankrupt or, within the previous five years, has either obtained his discharge in bankruptcy or has entered into a composition with his creditors, in either case without paying his creditors in full.”

38. In those days, there were only elections for the Urban Council, which did not play the role of legislature.  The disqualification only applied to those convicted and sentenced to imprisonment for a term of more than 12 months.  It covered conviction and sentence imposed by courts in any Commonwealth country.

39. In the early 1980s, the Government consulted the public with regard to district administration in Hong Kong.  The idea of setting up District Boards with elected membership was discussed.  The Green Paper on “A pattern of District Administration in Hong Kong” published in June 1980 gave a brief account of the development of local administrative institutions up to that point in time.  After consultation, in January 1981, a White Paper was published.  The proposal for the setting up of District Boards was explained as follows at para 14 of the White Paper and the elections to the Boards at para 17,

“14. One of the main proposals of the Green Paper was that the inhabitants of each district should participate to a greater degree than at present through representatives in administration at the district level. With this in mind it was proposed that a District Board should be formed in each district in order to provide a means of obtaining better local advice and participation. These Boards would be developed from the City District Committees in the urban area and from the District Advisory Boards in the New Territories. They would be composed of unofficial members representing the people of the district and the key official members of the District Management Committee in that district. These proposals have been generally well supported and the Government intends to proceed with the establishment of District Boards in all districts.

Elections to District Boards

17.  It was proposed in the Green Paper that an elected element should be added to the District Boards as soon as this was practicable.  The proposal was for this to be done in the urban area by providing seats on the District Boards for the Urban Councillors elected in the constituency concerned in order that they could participate in the work of the Board in each district.  For the New Territories it was proposed that the residents of each district should elect a certain number of the members of the relevant District Boards.  These proposals have been generally supported by the public, but a fair number of comments have been made about the absence of, and a case has been argued for, direct elections to District Boards in the urban area, on the grounds that the same opportunity for participation in district administration should be available in all districts.  On this basis, it has been argued that even though there would be elected Urban Councillors serving on District Boards in the urban area, this was insufficient and the present proposals would not ensure adequate representation; also the size of the Board is such that these Councillors would have less influence than the larger number of directly elected members will have in the Boards in the New Territories.  The Government accepts these arguments and therefore intends to introduce direct elections to seats on the District Boards representing constituencies in each district; for the urban area, these would be in addition to the seats provided for elected Urban Councillors.”

40. Paras 42, 44 and 48 of the White Paper dealt with qualifications for candidates and the disqualifications of some persons to stand for election,

“Qualifications for Candidates

42. As stated, some part of public opinion suggests that candidates should meet certain higher standards of quaIification than those required for a voter. The best interests of the community require that those elected should be the most suitable candidates. The Government takes the view that this should largely be achieved by the electorate in the deliberate exercise of the vote. To prescribe too many qualifications, over and above those required for a voter, might inhibit some good candidates from coming forward. It might also restrict the range of choice of appointed members who will continue to be selected, individually, on their merits. Nevertheless, in view of the strength of the opinion expressed by the public, the Government considers it justified to introduce a longer period of residence for candidates than that for the ordinary voter. Certain categories of persons will be excluded from becoming candidates.

…

44. Linking the qualifications for candidates to the qualifications for registered voters would mean that a person who is disqualified from becoming a registered voter (paragraph 36 in Chapter 4) would not be eligible to stand for election. It would also mean that a person of either sex and of any nationality can stand for election. There will be no educational or language requirement.

…

Exclusion of Certain Persons from becoming a Candidate

48. As stated, a primary qualification for a candidate is that he is a registered voter who has been ordinarily resident in Hong Kong for 10 or more years. Accordingly, any candidate must not fall within the categories set out in paragraph 36 in Chapter 4 and in paragraph 41(b) above. However, as is generally desired, the Government will, in addition, propose that the following categories of persons should not be eligible to stand as a candidate:

(a) persons who have in the past 10 years been convicted of any offence in Hong Kong or elsewhere and have had passed on them a sentence of imprisonment (whether suspended or not) for a period not less than 3 months without the option of a fine;

(b) persons who have been convicted in the past 10 years of an offence under section 3 or 4 of the now repealed Prevention of Corruption Ordinance, any offence under Part II of the Prevention of Bribery Ordinance (Cap. 201), or a corrupt or illegal practice within the meaning of the Corrupt and Illegal Practices Ordinance (Cap. 288); and

(c) employees of the Crown or of the Urban Council, and full-time judicial officers as defined in the Judicial Service Commission Ordinance (Cap. 92).

Consideration has been given to excluding from candidacy a practising pro­fessional person whose name has been struck off the register or roll of his profession for professional misconduct.  Such exclusion is considered desirable but difficult to define.  Further consideration will be given to this issue in the drafting of the necessary legislation.”

41. Para 42 referred to the public opinion that candidates should meet higher standards of qualification than those required for voters.  Para 48 referred back to para 36 of the White Paper regarding the disqualification provision for voters (same as those provided under the then Urban Council Ordinance).  One category listed there was,

“a person who has in any Commonwealth country been sentenced to death or imprisonment for a term exceeding six months and has not either suffered the punishment (or such other punishment as may have been substituted therefor) or received a free pardon”.

42. Thus, there were multiple disqualifications with regard to convictions and those sentenced to a term of imprisonment and they appeared in the Electoral Provisions Ordinance 1981 Section 19(b), (c), (g) and (h),

“19. A person shall be disqualified for being elected or being nominated as a candidate or holding office as a member if he –

(a) holds any public office (other than as a member of an auxiliary force) or any office of emolument in the gift or disposal of the Urban Council or any committee thereof or having held such office has been dismissed therefrom;

(b) has in Hong Kong or any other territory or country been sen­tenced to death or imprisonment (by whatever name called) for a term exceeding 3 months and has not either suffered the punish­ment to which he was sentenced or such other punishment as may by competent authority have been substituted therefor or received a free pardon;

(c) has been convicted of treason;

(d)is disqualified for being elected or being nominated as a candidate or holding office as a member under any enactment;

(e) is a member of any parliament, assembly or council, whether central or local, of a foreign country or a salaried functionary of a foreign government;

(f) is an undischarged bankrupt or, within the previous 5 years, has either obtained his discharge in bankruptcy or has entered into a composition with his creditors, in either case without paying his creditors in full;

(g) where the election is to be held or is held within 10 years from the date of conviction, has been convicted –

(i) of any offence in Hong Kong or any other territory or country and sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine;

(ii) of a corrupt practice or illegal practice within the meaning of the Corrupt and Illegal Practices Ordinance, other than the illegal practice consisting of a contravention of any of the provi­sions of section 19(2) of that Ordinance, or of a corrupt or illegal practice within the meaning of any other enactment for the time being in force providing for the punishment of corrupt or illegal practices;

(iii) of an offence under section 3 or 4 of the repealed Prevention of Corruption Ordinance;

(iv) of any offence under the Prevention of Bribery Ordinance; or

(h)  on the date of nomination or of the election is serving a sentence of imprisonment.”

43. Regarding the disqualification provision under Section 19(b), the relevant period of prison sentence was “exceeding 3 months”, more stringent than the equivalent disqualification for voters which was “exceeding 6 months” under Section 11(1)(a).  Though it was more stringent, according to the White Paper, the correlation between the two could be traced back to the public opinion gathered during the 1980 consultation that candidates should meet higher standards of qualification than voters.

44. Disqualification was provided for those who were serving prison sentence at the time of registration/nomination or at the time of election for voters under Section 11(1)(e) and for candidates under Section 19(h).  There was no discussion about this provision in the White Paper.

45. In 1985, election was first introduced for membership of LegCo for functional constituencies.  Disqualification provisions for voters and candidates which are relevant for our purposes were to be found in Section 15(2)(a), (d) and (e) and Section 21(1)(c), (g) and (h) of the Legislative Council (Electoral Provisions) Ordinance 1985.  I set them out as follows,

“15 (2) A person shall be disqualified from being registered as an elector, or even if registered, from voting at an election, if –

(a) he has in Hong Kong or any other place been sentenced to death or imprisonment (by whatever name called) for a term exceeding 6 months and has not either suffered the punishment to which he was sentenced or such other punishment as may by competent authority have been substituted therefor or received a free pardon;

…

(d) without prejudice to paragraph (a), where the election is to be held or is held within 7 years from the date of his conviction he has been convicted –

(i) of a corrupt practice or of an illegal practice within the meaning of the Corrupt and Illegal Practices Ordinance, other than the illegal practice consisting of a contravention of any of the provisions of section 19(2) of that Ordinance, or of a corrupt or illegal practice within the meaning of any other enactment providing for the punishment of corrupt or illegal practices;

(ii) of any offence under the Prevention of Bribery Ordinance; or

(e) on the date he applies for registration or on the date of the election, he is serving a sentence of imprisonment.

…

21. (1) A person shall be disqualified from being nominated as a candidate in an election or holding office as an elected Member if –

…

(c) he has in Hong Kong or any other place been sentenced to death or imprisonment (by whatever name called) for a term exceeding 3 months and has not either suffered the punishment to which he was sentenced or such other punishment as may by competent authority have been substituted therefor or received a free pardon;

…

(g) without prejudice to paragraph (c), where the election is to be held or is held within 10 years from the date of his conviction he has been convicted –

(i) of any offence in Hong Kong or any other place in respect of which he has been sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine;

(ii) of a corrupt practice or illegal practice within the meaning of the Corrupt and Illegal Practices Ordinance, other than the illegal practice consisting of a contravention of any of the provisions of section 19(2) of that Ordinance, or of a corrupt or illegal practice within the meaning of any other enactment providing for the punishment of corrupt or illegal practices;

(iii) of any offence under the Prevention of Bribery Ordinance; or

  (h)   on the date of his nomination or of the election he is serving a sentence of imprisonment.”

46. The disqualification provisions for candidates were the same as those for the District Boards under the 1981 Ordinance.  The same provisions applied in 1991 when direct election to LegCo was extended to geographical constituencies.

47. In July 1995, a LegCo member, the Hon Andrew Wong, tabled a private member’s Bill to amend these disqualification provisions. The proposals in the Bill included the narrowing of the scope of these disqualification provisions to those committed of offences specified at Section 21(1)(g)(ii) and (iii) only and removing the other restrictions relating to conviction or serving prison sentences.  The Bill was opposed by the Government. The then Secretary for Constitutional Affairs defended the existing provisions at the Second Reading of the Bill on 28 July 1995.

“When introducing his Bill into this Council on 5 July, Mr WONG argued that our electoral laws should not unduly limit the franchise or the pool of candidates. This I entirely agree. Indeed, our electoral system is built precisely on the principle of broad based participation. This is what open and fair elections are all about. But I hardly need to remind this Council that all responsible administrations, and this includes those in the more liberal jurisdictions, have legislated to exclude various categories of persons from the electoral process. And Hong Kong is of no exception. The disqualification provisions are necessary to protect the integrity not only of the elections, but also of the representative institutions to which the candidates are to be returned.

Most of the disqualification provisions which Mr WONG tries to remove have been in the statute book for many years. All were drawn up after extensive public discussion, including a Green Paper consultation exercise in 1981. They are well accepted by the public, and there are no known implementation difficulties. It is, therefore, most astonishing that Mr WONG should seek to introduce fundamental changes over-night. Indeed, to do so would be wrong in public policy terms:

Firstly, it goes against our proven approach to constitutional development: gradual, measured evolution rather than radical, headlong, rush.

Secondly, it goes against the established practice in Hong Kong that any proposal for major changes are preceded by, and subject to, comprehensive public consultation. Are the public ready for the radicalism embodied in the Bill? Has Mr WONG carried out any systematic public sounding? I certainly am not aware of any. If he has, he should share his methodology and results with the Council.

…

All the above does not mean that the existing legislative provisions are sacrosanct.  But the Administration does firmly believe that any fundamental change to the electoral system should be made with extreme care, after detailed study, and thorough consultation.  The appropriate time for a comprehensive review, if the public consider one necessary, should be after the September Legislative Council elections.”

48. The motion was negatived with 22 members voted in favour and 32 members voted against it.

49. The Affidavit of the Secretary did not refer to any public consultation or review after the LegCo election in September 1995.  If there had been any public consultation or review between September 1995 and the resumption of sovereignty, I would expect the Secretary to have produced the same in accordance with the duty of candour expounded by Ma CJHC (as the Chief Justice then was) in Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77 at paras 11 to 14, see also Inglory Ltd v The Director of Food and Environmental Hygiene HCAL 87 of 2011, 24 May 2012 para 52. 

50. I must therefore proceed on the basis that there was neither public consultation nor review of the position during that period. The Secretary has produced a memorandum of July 1997 prepared by the Constitutional Affairs Bureau and the debate in the Provisional LegCo regarding the Legislative Council Ordinance 1997.  I shall come to these materials later.

51. On 23 February 1997, the Standing Committee of the Eighth National People’s Congress adopted the Decision on Treatment of the Law previously in force in Hong Kong in accordance with Article 160 of the Basic Law of Hong Kong.  Paragraph 2 of the Decision reads,

“Such of the ordinances and subordinate legislation previously in force in Hong Kong as set out in Annex 1 to this Decision are in contravention of the Basic Law and are not adopted as the laws of the Hong Kong Special Administrative Region.”

52. The Electoral Provisions Ordinance and the Legislative Council (Electoral Provisions) Ordinance were included in Annex 1. They were therefore not adopted and ceased to be law after the resumption of sovereignty and the establishment of the Hong Kong Special Administrative Region with the coming into force of the Basic Law.

53. It should be noted that there was no suggestion from Mr Thomas that the disqualification provisions in the Legislative Council (Electoral Provisions) Ordinance were in any way in contravention of the Basic Law.

54. It was therefore necessary for the local legislature to enact new legislation to provide for the election for LegCo.  That legislation must comply with the Basic Law, including Articles 26, 39 and 68 of the Basic Law.

55. The task fell upon the Provisional Legislative Council.  In August 1997, the Government introduced the Legislative Council Bill 1997.  The Impugned Provisions were introduced in that Bill.

56. Regarding the change from the pre-existing 3-month threshold under the disqualification provision in the Legislative Council (Electoral Provisions) Ordinance for those not yet served their prison sentences to the absolute ban under the current Section 39(1)(b)(i),  the only explanation is to be found in the memorandum prepared by the then Constitutional Affairs Bureau in July 1997 on Review of the Electoral Provisions Ordinance.

57. In that memorandum, at p 6, the following was said with regard to the disqualification criterion under the old Section 19(1)(b) of the Electoral Provisions Ordinance,

“Under s 19(1)(b) of EPO, escaped convicts who have been sentenced to death or more than 3-month imprisonment and have not served the sentence or any substituted sentence or received a free pardon shall be disqualified. The proposal now is to tighten up the restriction by removing the 3-month ‘threshold’ for disqualification. This is because as a matter of principle, we should not allow any escaped convict to hold a LegCo office, no matter how light or serious his offence (and punishment) is.”

58. In the discussion with regard to disqualification provision for candidates, this observation was adopted, see p 10 of the memorandum at para 12(e).  The same applies to the observation with regard to the disqualification provision for voters, see p 13 para 16(a).

59. With respect, as the facts of the present cases demonstrate, these comments distorted the effect of the old Section 19(1)(b) and the current Section 39(1)(b)(i).  The sub-section catches not only escaped convicts, it also catches people like Mr Leung and Mr Wong who were given bail pending their appeal against criminal convictions and sentences.  It is not correct to describe them as escaped convicts or fugitives.  Though he has put it rather obliquely, this much is acknowledged by the Secretary at para 32 of his Affidavit.

60. To that extent, the memorandum was regrettably misleading.  The Secretary did not state in his Affidavit whether the memorandum had been circulated to members of the Provisional LegCo.  But this is the evidence he produced as being the relevant material leading to the enactment of the Legislative Council Ordinance 1997.  Further, in a House Committee Paper (PLC Paper No CB(2) 329, dealing with proposals to amend the disqualification provisions in the Bill regarding candidates as well as voters, the Administration opposed the proposals on the ground that “the provisions in the Bill are already less stringent than those contained in the previous electoral legislation”.  Such stance could not be sustained if members of the Provisional LegCo appreciated the true impact of Section 39(1)(b)(i).

61. The debate at the Provisional LegCo showed that even the member who proposed the amendments to the Bill was misled as to the effect of this particular provision because he also described the subjects of it as “fugitives”.

62. In so saying, I should not be taken as suggesting that the Administration had deliberately misled members of the Provisional LegCo.  I do not say so.  There is no evidence to suggest that to be the case.  Actually, reading the memorandum as a whole, the Administration was trying to liberalize the restrictions in other respects, eg shortening the disqualifying period under Section 39(1)(e) to 5 years as compared with the previous period of 10 years under Section 21(1)(g) of the Legislative Council (Electoral Provisions) Ordinance on the ground proportionality, see p 7 under para 8(q), and p 11 para 12(k) and similar shortening from 10 years to 3 years with respect to disqualification for voters, see p 13 para 16(d).

63. The Administration set out a principle relevant for our purposes at para 11 of the memorandum,

“As a matter of principle, the disqualification for candidature/election should not be more restrictive than the disqualification from holding office. …”

This would have a bearing in the consideration of the implications flowing from Article 79(6) of the Basic Law.

64. Amendments proposed the Hon Mr Andrew Wong (including an amendment restoring the pre-existing position of confining disqualification under Section 39(1)(b) to sentences for a term exceeding 3 months) was voted down and the Bill in the form as proposed by the Administration was passed.

65. In view of the evidence, I must reject Mr Thomas’ suggestion that the change in 1997 was due to the provision in Article 79(6) of the Basic Law.  Counsel proceeded on the basis that the restriction for candidate should be more stringent than that for the disqualification of member of the LegCo.  The evidence shows that the principle adopted was the other way round.

The nature of the right to stand for election

66. Like the right to vote, the right to stand for election is a fundamental right.  This is expressly recognized under Article 26 of the Basic Law.  These rights are crucial to establishing and maintaining the foundations of an effective and meaningful democracy, see Zdanoka para 103.  But they are not absolute.  This is reflected in the European jurisprudence on implied limitations and the cases on reasonable restrictions under the ICCPR.

67. The European Court of Human Rights has repeatedly emphasized on the latitude given to each State in setting the rules governing eligibility to stand for election and the diversity of possible approaches within the European Union.  In respect of such right, it was stressed at paras 103 and 106 in the judgment of Zdanoka,

“There are numerous ways of organizing and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision.”

“… for the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned …”

To the same effect is the fourth proposition of Lord Collins in Barclay at para 56 of that judgment quoted above.

68. In the present context, the constitutionality of Section 39(1)(b) must be assessed against the legislative history discussed at the preceding section and the overall political development in Hong Kong.  Overseas decisions on similar restriction, gearing towards political and historical developments in those countries, would not be of much assistance in deciding the proper balance to be struck in Hong Kong.

69. But overseas decisions can be useful in shedding light on the nature of restrictions which may be imposed.  In that respect, Nowak’s CCPR Commentary para 27 at p 578-9 provide a good summary,

“With respect to the right to be elected, farther-reaching restrictions are sometimes permissible. For instance, the minimum age for holding office normally lies somewhat higher than that for voting … As a consequence of the higher responsibility associated with election to a public office, certain grounds for exclusion going beyond those on the right to vote may also be considered reasonable in this regard. For instance, one might imagine specific qualification requirements or the exclusion of extremist parties and certain groups of persons, such as priests, civil servants and military persons. In addition, the observance of certain formal requirements for submitting a nomination for election, such as payment of a fee or deposit or presentation of a certain number of declarations of support, could be a permissible restriction, so long as it is not excessive or discriminatory. However, these restrictions must be adequately justified.”

70. Zdanoka was a case concerning the disqualification of a Latvian national from standing for election in the Latvian parliament as persons who actively participated in certain political organizations which, according to the judgment of the Latvian Constitutional Court, “attempted to re-establish the former regime through active participation” and “the overthrow of the existing State regime”.  The aim of the restrictions is to “protect he democratic State order, national security and territorial integrity of Latvia”.  The ECHR found, in the circumstances of Latvia, the restriction to be in accordance with Article 3.

71. In Touroon v Uruguay UN Doc CCPR/C/12/D/32/1978; IHRL 2783 (UNHRC 1981), the Human Rights Committee of the United Nation recognized that legislations in many countries deprived criminal offenders political rights, including the rights to stand for election.  On the facts of the case, the Committee was of the opinion that the deprivation of political rights for 15 years were not justified.

72. In General Comment 25 adopted by the UN Human Rights Committee on 12 July 1996, the following comments were made regarding reasonable restrictions that may be imposed on the right to stand for election. At para15,

“The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person’s candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office.”

Para 16 dealt with nomination procedure and measures to avoid conflicts between elective offices and holders of other specific positions (judges, high-ranking military officers and public servants).

Para 17 continues,

“The right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties. If a candidate is required to have a minimum number of supporters for nomination this requirement should be reasonable and not act as a barrier to candidacy. … political opinion may not be used as a ground to deprive any person of the right to stand for election.”

73. Drawing from these authorities, I can make the following observations which are relevant for present purposes,

(a)  The permissible restrictions can go beyond mere procedural regulations of the nomination process and disqualification criteria based on certain attributes of a candidate may be permissible;

(b)  The restrictions have to be justified. They must be reasonable, not excessive and non-discriminatory in addition to being prescribed by law;

(c)  Justification has to be considered against the historical and political developments of the state or region in question.

Evidence as to objectives of the Impugned Provisions

74. In his Affidavit, the Secretary recognized that the contemporaneous evidence of the legislative process pertaining to the passing of the Legislative Council Ordinance by the Provisional LegCo is limited.  The Secretary then went on to set out what the current Administration perceives as the important social and political objectives served by the Impugned Provisions with regard to persons in similar position to the Applicants, viz convicts sentenced to imprisonment but released on bail pending appeal.

75. Four objectives were identified by the Secretary,

(a)  Maintaining public confidence in the LegCo and ensuring its proper operation;

(b)  Maintaining public confidence in the electoral process;

(c)  Ensuring fitness to serve as a member of the LegCo;

(d)  Respect for the law and enhancing civic responsibility.

76. These objectives were not mentioned in the contemporaneous evidence.  In Lam Wo Lun v Director of Social Welfare HCAL 133 of 2010, 14 May 2012, this Court considered how a court should approach justifications advanced in judicial review proceedings which had not been canvassed in the contemporaneous documents.  At para 49, after considering the relevant authorities, the following view was expressed,

“In principle, the submission of Lord Pannick must be correct. When the court considers whether a policy is justified in the wake of constitutional challenges, the issue is whether the relevant constitutional rights have been violated. A policy may be justified on its merits even though the way in which the policy was explained during its introduction did not quite fit into a structured analysis in terms of the justification test. At the same time, the court will subject the reasons put forward as justification to scrutiny as in the case of George Yao. If the evidence of a witness is at odds with the justification previously put forward in contemporaneous document, the court will weigh the same with caution. But the court will not be pedantic in the reading of the evidence and contemporaneous documents should not be read as if they were statutes.”

77. On the facts of that case, this Court concluded that the reason advanced in the affidavit of the responsible officer had already been canvassed in the contemporaneous documents.  However, the position is different in the present case.  Not only were the stated objectives advanced by the Secretary not being mentioned in the contemporaneous documents in 1997, a very different justification had been put forward in 1997 in respect of the reduction of the threshold period under Section 39(1)(b), viz the lack of justification for giving any escaped convict the benefit of any threshold.

78. In my judgment, this must have a bearing on the weight to be attached to the objectives now put forward in the Affidavit and the standard of scrutiny to be applied by the court.  Mr Thomas submitted that the court should accord a high margin of appreciation to the judgment of the LegCo.  Several observations can be made in response to this submission in the present context.  First, as observed by Sir Anthony Mason NPJ in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at para 45,

“… The weight to be accorded to the legislative judgment by the court will vary from case to case depending upon the nature of the problem, whether the executive and the legislature are better equipped than the courts to understand its ramification and the means of dealing with it. … It is for the Court to exercise its constitutional responsibility by determining the issue, after giving appropriate respect to the legislative judgment. At the end of the day, to repeat the words of Lord Nicholls of Birkenhead in R v Johnstone [2003] 1 WLR 1736 at p.1750 F:

‘The court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual …’ ”

79. These were said in the context of a challenge to a provision relating to onus of proof in a criminal case where the court, as observed by Sir Anthony Mason NPJ, was able to form its own judgment without laboring under a disadvantage vis-à-vis the legislature.  However, I see no reason why the same approach should not be applied in the present context.  What we have here is, regrettably, as shown by the evidence, a situation where the Provisional LegCo was unwittingly misled by the justification put forward by the Administration in voting in favour of the change of threshold period for disqualification under Section 39(1)(b).  In such circumstances, it is plain that the Provisional LegCo failed to give any consideration to the right to stand for election of a person on bail pending appeal and whether, in respect of such person, given it had been acknowledged by the Administration in 1995 that the then disqualification regime had been working without difficulties[1], there was good justification for the removal of the threshold period altogether under that section.

80. Second, in the speech of the then Secretary for Constitutional Affairs at the debate on 5 July 1995, the disqualification provisions were justified as being necessary “to protect the integrity not only of the elections, but also of the representative institutions to which the candidates are to be returned”.  Broadly speaking, these justifications coincide with the first two objectives now put forward by the Secretary in his Affidavit.  I shall proceed on the basis that these objectives had been considered by the legislature.

81. Third, as regards the other two objectives, there is no evidence to indicate that they have been considered as separate or distinct objectives by the legislature.  In his Affidavit, the Secretary only put forward these objectives as the current views of the Administration.  Though these objectives can still be considered, they do not carry the same weight as the considered view of the legislature.

Section 39(1)(b)

82. In my judgment, the assessment of the constitutionality of Section 39(1)(b) should be considered separately from the assessment regarding Section 39(1)(d).  I shall start with the former.  I believe Mr Dykes and Leung accepted (and I agree with them) that disqualification for convicts subject to a lengthy prison sentence can be justified.  The issue is whether Section 39(1)(b) has crossed the line of reasonable restriction.

83. In the application of the test set out at para 33 above, Section 39(1)(b) has to be considered in the light of Section 39 as a whole.  Section 39(1)(e) (the constitutionality of which is not attacked) already contains disqualification for those who have been convicted within the past 5 years for specific types of offences which the legislature considered to have special significance in relation to the fitness of a candidate or for an offence for which sentences of imprisonment exceeding 3 months (including suspended sentence) were imposed.

84. Thus, for convicts subject to prison sentence exceeding 3 months (including suspended sentence) or convicts of the specified offences, they are already disqualified Section 39(1)(e)(i) even if they are given bail pending appeal.

85. I accept the maintenance of public confidence in LegCo and the election process and the ensuring of proper operation of LegCo as legitimate aims.  In the discussion relating to these two objectives in the Affidavit of the Secretary, he referred to the uncertainties that might be engendered and the confusion that might be caused to the electorate if convicts on bail pending appeal were allowed to run as candidates.

86. With respect, given that we are only talking about those subject to a sentence of 3 months or less, not much uncertainty can be caused by allowing such candidates to run.  As submitted by Mr Dykes SC, in the present day Hong Kong situation it is unlikely that a conviction and liability to serve prison sentence of a candidate of LegCo election is not revealed to the voters even if he or she is on bail pending appeal.  There would not be any confusion.  I have no doubt that the voters in Hong Kong are intelligent enough to take into account the potential contingency of imprisonment of such candidate in deciding whether to cast their votes in favour of him or her.

87. Whilst there might be uncertainty in terms of the outcome of the appeal and thus the need to serve the prison sentence, at the highest it would only be 3 months out of a total four-year term[2] of office of the candidate (if elected).  As observed in the course of hearing, there is no certainty in life and legislators, like all of us, are subject to various contingencies in life like illness or other mishaps which might prevent a legislator from performing the duties in the LegCo during part of his or her term of office.

88. Under Article 79 of the Basic Law, the President of the LegCo shall declare a member no longer qualified for the office under certain circumstances.  This article shed light on the criteria to be applied in deciding whether public interest demands a member to be disqualified from office. Some of those criteria relates to the ability of the member in performing the duties as members of the LegCo.  I have referred to Article 79(6) which deals with member convicted and sentenced to imprisonment for one month or more.  There are other provisions.  Article 79(2) deals with a member who, without valid reason, is absent from meetings for 3 consecutive months without the consent of the President.  In other words, for those who absent from meeting for less than 3 consecutive months, the Basic Law does not deem it necessary to disqualify such a member.

89. There is also a provision under Article 79(1) in respect of member who loses the ability to discharge his or her duties as a result of serious illness or other reasons.  I have not heard submissions on the proper interpretation of Article 79(1) and I would not express any concluded view on it.  However, since there are specific provisions in Article 79(2) dealing with absence from meetings and in Article 79(6) dealing with those subject to prison sentences, there is a strong argument that the loss of ability in Article 79(1) refers to the loss of the innate ability of a member to serve as opposed to external contingencies preventing a member from performing the duties of a LegCo member.

90. These are the criteria for members.  As observed in the 1997 memorandum, as a matter of principle, and I would add, in terms of proportionality, the criteria for candidates should be less stringent.  After all, a candidate may not be elected and the voters can make their own assessments as to the suitability of a candidate to serve as legislator in casting their votes.

91. Further, as shown by the legislative history, between 1985 and 1997, the relevant disqualification provision is subject to the three-month threshold period.  The then Secretary for Constitutional Affairs informed LegCo in 1995 that no difficulty had been encountered.

92. In my view, the above analysis rebutted the Secretary’s reliance in his Affidavit on the need for reassignment of duties and the unfairness of allowing a candidate to stand whilst immediate imprisonment during his term of office is a real possibility.

93. The Secretary also referred to the wastage of expenses and resources devoted to election and by-election upon the imprisonment of a candidate or a member.  With respect, in view of the above analysis as to Article 79, it is by no means a foregone conclusion that a by-election has to be held if a member has to serve a short prison sentence for less than three months.  Actually, the power under Article 79(6) would not be triggered by the imposition of a prison sentence of less than one month on a member.

94. As for the case of a candidate on bail during the nomination date and subsequently sent to jail on the election date, whilst this might lead to some need to clarify the validity of the candidacy, given the efficiency of the public media in Hong Kong I do not believe it would cause insurmountable difficulties to the continuation of the election.  In any event, it would be a rare occurrence.

95. On the whole, I do not see the rational connection between the application of Section 39(1)(b) to persons on bail pending appeal and the maintenance of public confidence in the LegCo and the electoral process.  I have not overlooked that Section 39(1)(b) also applies to escaped convicts or fugitives.  However, I do not think the measure can be justified as the drawing of a bright line which catch some hard cases (see R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312).  With respect, it is actually difficult to envisage an escaped convict standing for election, at least not one who is being convicted by a court in Hong Kong or a jurisdiction with which we have extradition arrangement.  Section 39(1)(b) is more likely to catch an intended candidate on bail than an escaped convict.  As it happened, three persons (including the Applicants) who fall into the former category were recently caught by the dilemma occasioned by Section 39(1)(b).  I do not think their predicaments can simply be dismissed as hard cases.

96. It also follows from the above analysis that I do not regard Section 39(1)(b) as proportionate measure to pursue the aims of preserving the public confidence in the LegCo or the electoral process and ensuring the proper operation of LegCo. 

97. As regards the two other objectives mentioned by the Secretary: fitness of a candidate to serve as a member of LegCo and respect for the law, they were not canvassed in 1995 or 1997 when the LegCo and the Provisional LegCo considered the matter.  In regard to the former, back in 1981 at para 42 of the White Paper mentioned above, the then Administration took the view that suitability of a candidate “should largely be achieved by the electorate in the deliberate exercise of the vote” and too much prescription on eligibility would “restrict the range of choice of good candidates from coming forward”.  Thus, the Administration had recognized at that stage that suitability of a candidate should primarily be left to the voters. 

98. Historically, the restriction in Section 39(1)(b) was linked to the less stringent but similar disqualification provision for voters.  With the benefit of public consultation in 1980, the balance was struck in 1981 at disqualification as candidate of those imposed with sentences exceeding 3 months.  That balance seemed to work well up to 1997. In 1997, based on the misguided reason set out in the memorandum produced by the Administration, it became a disqualification for everyone subject to an unserved prison sentence.  That change took place with respect to both candidates and voters.  After Chan Kin Sum, the identical restriction for voters under Section 31(1)(a) has been removed from the statute book in 2009.

99. Given that an invalid reason had led to the change in 1997, I cannot attach weight to “judgment of the legislature” with regard to Section 39(1)(b) in passing the Legislative Council Ordinance 1997.  In the absence of any suggestion that the previous balance struck in 1981 (subsequently introduced into LegCo election since 1985) did not adequately serve the interest of Hong Kong, with the progressive developments of political maturity in Hong Kong since 1985, I do not see how the change in 1997 can be said to be a proportionate measure to address the aim of having suitable candidates.  This is particularly so when one consider this restriction in light of the disqualification provisions for members in Article 79(6) of the Basic Law.

100. I do not agree with the Secretary that the last objective, respect for the law and enhancement of civic responsibility, can on its own be regarded as a legitimate aim for the restriction on the right to stand for election.  Insofar as a criminal conviction with prison sentence may reflect upon the suitability of a candidate (whether in terms of his respect for the law or his sense of civic responsibility), this has been considered in the preceding discussion.  The Secretary’s explanation of this objective was set out at para 53 of his Affidavit,

“53. The Subject Provisions also serve to enhance civic responsibility. Persons committed to serving the public will be informed by the Subject Provisions as to the possibility of being disqualified from candidature in elections for the LegCo if they flout the law. They will be discouraged from doing so. The Subject Provisions also serve to enhance a high level of civic responsibility and respect for the rule of law by those who wish to stand for election for public office. They deter such persons from breaking the law by warning them that the consequences of criminal wrongdoing may result in their disqualification from candidature in elections for the LegCo and such persons will be discouraged from breaking the law. They also reinforce respect by intending candidates for the laws passed by the very body on which they wish to serve on.”

101. In substance the argument is that Section 39(1)(b) can serve as a special deterrent to those aspired in running for LegCo office in addition to the usual sanction under our criminal law.  In my judgment, with respect, this conflated the proper function of electoral restriction under our election law with the function of our criminal law.  LegCo member, like other citizens in Hong Kong, are subject to the same set of laws and the same treatment under our criminal justice system.  Of course, LegCo member would also be politically accountable to the voters.  But political accountability should not be confused with additional restriction in the right to stand for election.

102. Further, Section 39(1)(b) extends to prison sentence imposed in places other than Hong Kong for offences not known here and it can even be applied in respect of a sentence imposed by a jurisdiction which has no extradition arrangement with Hong Kong.  That has little bearing on the respect for our law and civic responsibility as Hong Kong citizen.

103. Though Mr Thomas laid much emphasis on the current stage of political development in Hong Kong with reference to Article 68 of the Basic Law and the need to have suitable candidates in the LegCo election, I do not think these can justify the proportionality and reasonableness of Section 39(1)(b) in light of what I said above.

104. For these reasons, I hold that Section 39(1)(b) is inconsistent with Article 26 and 39 of the Basic Law and Article 21 of the BoR.  I granted a declaration accordingly.

105. In such circumstances, it is not necessary to consider the arguments based on Article 25 of the Basic Law (on equality) and Article 28 of the Basic Law and Article 5 of the BoR (on the right to bail deriving from liberty of person).  I would simply record that regarding Article 25, Mr Thomas argued that the difference in treatment is not discriminatory because it is not a differentiation based on any of the grounds in Article 1(1) of BoR. Counsel relied on R (Clift) v Home Secretary [2007] 1 AC 484 to contend that the attribute of convicts and prisoners do not come within the meaning of “other status” under Article 1(1).  A Cheung J held the contrary position was highly arguable in Chan Kin Sum (see paras 75 and 76).  It is also a moot point whether the right to equal treatment under Article 25 is circumscribed by Article 1(1).  In the social welfare cases (Kong Yun Ming and Fok Chun Wa) the courts did not construe Article 25 with reference to Article 1.  I have not heard submissions in that regard and I shall leave the point open.

106. As regards Article 28 of the Basic Law and Article 5 of the BoR, I do not see how the right to liberty can assist the Applicants in the challenge of Section 39(1)(b).  They have been convicted by a court of law and sentenced to imprisonment.  Whilst they do have the right to appeal, they do not have an absolute right to liberty pending appeal.  They can apply for bail but they could only enjoy their liberty if bail pending appeal is granted.

107. It is up to them to decide whether they would apply for bail and if bail is granted, it is up to them to decide whether, in view of their aspiration to run for election and the restrictions under Section 39, to apply to have the bail revoked and serve the sentences prior to the expiration of the nomination period.  If they decide to serve the prison sentences, they are not deprived of their liberty by Section 39.  Rather, they are deprived of their liberty by the prison sentences imposed by the courts as punishments of the offences committed by them.  That cannot be an infringement of Article 5 and Article 28.  After they have served their sentences, they would not be required to serve again even if they fail in their appeals.

108. It is argued that Section 39(1)(b) leaves them with no choice but to serve their sentences as opposed to enjoying their right of liberty pending appeal.  I do not agree.  They can still choose to enjoy their liberty but they may not run as a candidate if Section 39(1)(b) is a reasonable restriction (in the sense as discussed above) of the right to stand for election.  It is correct that they cannot have both.  But it does not follow that if they choose to serve their sentences, their right to liberty is infringed by Section 39(1)(b).

Section 39(1)(d)

109. This section disqualifies those who are serving prison sentences either at the time of nomination or at the time of election.  Again, by reason of Section 39(1)(e), I can confine to those serving a sentence of less than 3 months.  The complaint is that this section may catch those serving a short prison sentence in between the commencement of nomination period and the date of election and, if allowed to stand as candidate, would be released by the time the new term of office of LegCo membership commences.

110. I can see the force of this challenge.  However, there is one important aspect which in my view should be considered but the parties have not addressed upon.  Unlike the right to vote, the right to stand for election, for most people, cannot be effectively exercised unless the candidate can have meaningful access to run an election campaign.  Thus, it is at least arguable that the right to stand for election carries with it the right to a fair opportunity to conduct a campaign.  Nowak’s CCPR Commentary at p 584 para 36 alluded to “the right of campaigning parties and candidates to unimpaired campaign advertising”.  See also Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 at para 54.

111. Whilst each candidate would have different limitations in terms of resources and manpower to conduct his or her own campaign, a candidate serving a prison sentence would be subject to a greater disadvantage.  Does it mean that such a candidate should be allowed timeout from imprisonment to conduct campaign?  Has this question been considered in other jurisdictions?  How should this be balanced against the public interest in the effectiveness of our criminal justice system in terms of punishment by prison sentence?  How about security issues if such a candidate is allowed to have timeout?  All these questions have to be addressed in the assessment of the overall reasonableness of Section 39(1)(d).

112. Since Leung and Wong have been given bail and are not subject to the restriction of Section 39(1)(d) and they wished this court to give a decision as soon as practicable, I do not think I should delay the matter by inviting further submissions from counsel on Section 39(1)(d).  Following the approach of Hartmann J (as he then was) in Leung Kwok Hung v The President of the Legislative Council [2007] 1 HKLRD 387 paras 43 and 44, I would just leave the constitutionality of Section 39(1)(d) to be considered in the future.  Hopefully, the matter will receive the attention of the Administration and LegCo in a review of the disqualification provisions as a whole and it would not be necessary to litigate over this issue in court again. 

Disposal

113. I have therefore granted the declaration regarding Section 39(1)(b) on 14 June.

114. I shall also make a costs order nisi that the Respondent shall pay the costs of the Applicants, such costs are to be taxed if not agreed.