HANS RICHARD MAHNCKE v. ELECTORAL AFFAIRS COMMISSION

HCAL 90/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 90 OF 2012

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J U D G M E N T

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1. Leave is refused for the following reasons.

2. First, as pointed out by Mr Mok SC on behalf of the Putative Respondent, the opinion of the Nominations Advisory Committee on 1 June 2012 is not in any way binding.  It is an advice which the Applicant may take or reject.  As such, it is not a decision in respect of which the court will grant leave for judicial review, see Asia Television Ltd v Chief Executive in Council [2012] 3 HKLRD 1.

3. Second, if the Applicant submits his nomination which were rejected by the Returning Officer, that would be part of the election, see Section 61(3) of the Legislative Council Ordinance.  As such, it can only be challenged by election petition on the specified grounds, see Section 61(1).  Section 62(1)(b) provides that an election petition may be lodged by a person claiming to have been a candidate. This is an indication that persons whose nominations have wrongly been rejected can lodge an election petition.

4. The absence of any equivalent of Regulation 9(7) of the Boundary and Election Commission (Election Procedure) (Geographical Constituencies) Regulation in the current statutory regime cannot be a sufficient ground for distinguishing the present case from Lau San Ching v Liu Appollonia [1994] 3 HKC 122 which was primarily a decision on Section 30(2) of the Electoral Provisions Ordinance, the equivalent of Section 61(1).

5. This conclusion is supported by Tang Kai Tak HCAL 120 of 2010, 24 November 2010. 

6. Thus, despite the difference in the statutory regime, the difference is not material and Lau San Ching is applicable.

7. Even assuming for the sake of argument that Section 61(1) does not exclude judicial review challenging the election of a candidate, the points made by Godfrey JA in Lau San Ching with regard to the discretionary considerations are equally applicable in the present case.

8. None of the provisions in the Basic Law, in particular Articles 11, 25, 26 and 67 relied upon by the Applicant, undermines the validity of Lau San Ching.

9. All these mean that the Applicant, if he so wishes, has to submit a nomination and wait until the end of the election and challenge the same by election petition.  If he takes such a course, his argument that section 37 of the Legislative Council Ordinance is inconsistent with Articles 11, 25, 26 and 67 of the Basic Law will be examined in the election petition. His access to the court is not compromised.

10. The court is not minded to make any order as to costs.