LEUNG KIT HING, DORIS v. ELECTORAL AFFAIRS COMMISSION

HCAL 1016/2017
[2018] HKCFI 359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1016 OF 2017

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D E C I S I O N

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INTRODUCTION

1.  On 9 February 2018, the court handed down a written decision (“the Decision”) and made an order (“the Order”) dismissing the Applicant’s application for leave to apply for judicial review and her application for interim relief.

2.  On 12 February 2018, the Applicant took out an “Urgent Exparte Summons” (“the Summons”) seeking a number of relief, which I shall refer to in a moment.  In the Summons, the Applicant also requests that her application be dealt with on paper, which I consider to be an appropriate course to follow.

3.  The basic facts of this matter are set out in the Decision and will not be repeated here.  The expressions or abbreviations used in the Decision shall be adopted here.

4.  In paragraph 1 of the Summons, the Applicant seeks a variation or discharge of the Order on the ground that “there has been a change of circumstances since the original order was made”, and relies on the fact that the Order has not yet been sealed, or has not been sealed to her knowledge.  The Applicant has not, however, identified the change(s) of circumstances relied upon.  Furthermore, I am unable to see what relevant change(s) of circumstances may have occurred since the date of the Order. There is thus no basis to vary or discharge the Order on the ground of change of circumstances, irrespective of whether the Order has been sealed.

5.  In paragraph 2 of the Summons, the Applicant seeks a “stay” of the application for judicial review pending “clarifications” from the European Court of Human Rights and the Court of Final Appeal.  Since the Applicant’s application for leave to apply for judicial review has already been dismissed, there is nothing to be “stayed”.  In any event, as mentioned in paragraph 15 of the Decision, the CFA Determination dismissing Leung and Yau’s applications for leave to appeal against the judgment of the Court of Appeal, which upheld Au J’s judgment that the offices previously occupied by Leung and Yau as Legislative Council members had become vacant, is final and conclusive. There is thus no proper basis to stay the judicial review proceedings.

6.  In paragraph 3 of the Summons, the Applicants seeks an extension of time to serve a notice of appeal against the Order, and asks for the matter to be “adjourned sine die with liberty to restore on grounds of (1) (2) above”.  For reasons stated above, paragraphs 1 and 2 of the Summons have no merits.  It follows that there is no good reason to grant any extension of time for the Applicant to serve the notice of appeal based on the matters mentioned in paragraphs 1 and 2 of the Summons.

7.  Lastly, in paragraph 4 of the Summons, the Applicant seeks an order that there be no order as to the costs of the proceedings.  The Applicant argues that the court could not deal with the interim relief application prior to the grant of leave to apply for judicial review.  It should be noted that the hearing on 2 February 2018 was a combined hearing of both the application for leave to apply judicial review and the application for interim relief.  It is clear from the Decision itself that the application for interim relief was rejected because the court considered that the application for leave to apply for judicial review was not reasonably arguable and the Applicant lacked standing in the matter.  The reasons for making the costs order were explained in paragraphs 19 to 21 of the Decision.  Nothing has been said which convinces me that the costs order was wrongly made.  I should also mention that the costs order made on 9 February 2018 was not an order nisi. For these reasons, I do not consider that there is any valid ground to vary the costs order previously made.

8.  In all, the Summons is dismissed.  Since the Summons has been disposed of on paper without any participation by the Putative Respondent, I make no order as to costs in respect of the Summons.