[English Translation – 英譯本]HCAL 14 /200 8
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 14 OF 2008
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BETWEEN
SO SIU CHOU 蘇肖疇)Petitioner
and
CHIEF ELECTORAL OFFICER 丁徐慧明) 1st Respondent
HOUSING SOCIETY KAI TAK GARDEN MANAGEMENT OFFICE DISTRICT MANAGER YU YEUNG PUI MAN (余楊佩雯) 2nd Respondent
HOUSING SOCIETY KAI TAK GARDEN MANAGEMENT OFFICE PROPERTY MANAGER TSANG KAM YUK (曾金玉) 3rd Respondent
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Before: Hon Cheung J in Chambers
Date of Hearing: 1 February 2008
Date of Judgment: 1 February 2008
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JUDGMENT
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1. The Petitioner sought directions from the Court on the security for costs of the present petition. Nonetheless, as indicated to the Petitioner by letter from the Court, the Court must first deal with the issue about the Petitioner’s lodging of the election petition out of time.
2. Section 53 of the District Councils Ordinance (Cap. 547 of the Laws of Hong Kong) provides that:
An election petition questioning an election may be lodged only during the period of 2 months following the date on which the Returning Officer has published the result of the election in the Gazette.
3. An Ordinary Election of the District Council was held on 18 November 2007, following which District Council members were elected. The Petitioner was one of the candidates for the Wong Tai Sin District Council. On 24 November 2007, the Returning Officer published the result of the election in the Gazette. The Petitioner was not elected.
4. The Petitioner was dissatisfied with the result of the election, contending that it violated the principle of fair election. He therefore lodged an election petition to challenge the election.
5. However, the Petitioner failed to comply with section 53 of the aforesaid Ordinance by lodging an election petition during the period of 2 months following the date on which the Returning Officer published the result of the election in the Gazette. It was only on 28 January 2008 that his election petition was lodged with the Court.
6. The requirement on the time limit of lodging the election petition under section 53 of the Ordinance is expressed in terms of the words ‘必須於’ in Chinese and ‘may be lodged only’ in English, both of which bear a mandatory meaning.
7. Nor is there any other provision in the Ordinance that empowers the Court to extend the time limit for lodging an election petition.
8. Similarly, there are no provisions in the District Councils (Election Petition) Rules, made pursuant to section 52(3) of the Ordinance, that empower the Court to extend the time limit for lodging an election petition.
9. Rule 2 provides that the practice and procedure of the High Court shall apply to an election petition as nearly as circumstances permit as if it were an ordinary action within the jurisdiction of the High Court. The practice and procedure of the High Court of course encompass the powers of the High Court in relation to extensions of time limits: see Order 3 Rule 5 of the Rules of the High Court (Cap. 4A of the Laws of Hong Kong).
10. This notwithstanding, Rule 2 of the District Councils (Election Petition) Rules expressly provides that the practice and procedure of the High Court shall apply subject to Division 4 of Part V of the District Councils Ordinance.
11. As mentioned above, section 53 expressly provides that an election petition questioning an election may be lodged only during the period of 2 months following the date on which the Returning Officer has published the result of the election in the Gazette, and there are no provisions in the Ordinance which empower the Court to extend the time limit for lodging an election petition.
12. This being the case, the practice and procedure of the High Court regarding the power to extend time limits are not applicable.
13. In light of the need for finality and certainty of election results, and for the sake of the sound operation of the District Council and public interest, the law has laid down strict requirements on the time limit for lodging a petition questioning an election. The legislative intent in this respect is not difficult to appreciate.
14. The election petition in the present case, which was lodged out of time, has failed to comply with the statutory requirement. The petition is of no effect whatsoever at law. The Petitioner has explained to the Court by way of written submission the reasons for lodging his election petition out of time. The Court can understand these reasons, but the fact remains that the Ordinance has not empowered the Court to extend the time limit for lodging an election petition. The Court therefore has no jurisdiction to deal with the Petitioner’s election petition or matters pertaining to the election being questioned. See the judgment of Fuad J in Re District Board Election (1982) , HCMP 744/1982, 6 May 1982.
15. The Court orders that the petition be struck out and this election petition dismissed. The Petitioner is to pay to the Respondents costs of the petition, to be taxed if not agreed.
(Andrew Cheung)
The Petitioner, in person, present.
Ms Leona Cheung, Government Counsel, for the 1st Respondent.
Ms Rosanna Lee of Li, Kwok and Law for the 2nd and 3rd Respondents.
Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.