TSE HUNG HING v. THE MEDICAL COUNCIL OF HONG KONG AND OTHERS

HCAL84/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 84 OF 2009

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BETWEEN

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REASONS FOR JUDGMENT

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1.  In these proceedings, the applicant seeks to challenge:

(1)  The constitutionality of section 4(2)(b) of the Medical Practitioners (Electoral Provisions) (Procedure) Regulations, Cap. 161B (“the Regulations”), whereby a registered medical practitioner is disqualified from being nominated in an election or holding office as a member of the Medical Council of Hong Kong (“the Council”) under section 3(2)(j) of the Medical Registration Ordinance, Cap.161 (“the MRO”), if he has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment; and

(2)  The validity of the motion passed by the Council at its meeting on 2 July 2009 (“the Motion”), declaring the applicant’s office of membership of the Council to be vacant; the applicant having been convicted on his own plea of an offence of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374, which was an offence punishable with six months’ imprisonment.

2.  Leave to apply for judicial review was granted on 27 July 2009.

3.  On 2 November 2009, the parties made a joint application to dispose of the proceedings on terms as agreed and set out in a draft order. In support of the application, the parties had filed a joint statement (“the Joint Statement”).

4.  Having considered the papers and the Joint Statement, I accept the agreed submissions of the parties as set out in the Joint statement. Accordingly, at the hearing of the judicial review application on 5 November 2009, I made the following orders:

(1)  A declaration that section 4(2)(b) of the Regulations is inconsistent with Article 21 of the Hong Kong Bill of Rights, Cap. 383 and Article 39 of the Basic Law and is unconstitutional, null, void and of no effect.

(2)  A certiorari quashing the Motion.

(3)  A declaration that the applicant was lawfully elected as a member of the Council under section 3(2)(j) of the MRO for a term of three years commencing on 24 January 2009 and expiring on 23 January 2012.

(4)  A declaration that the by-election, which commenced pursuant to the notice given by the Secretary of the Council on 24 July 2009 for filling a vacancy in the office of membership of the Council arising as a result of the Motion, is null, void and of no effect.

(5)  The costs of these proceedings (including costs previously reserved) be to the applicant, to be taxed if not agreed.

5.  At the request of the applicant, I now reduce my reasons into writing.

6.  A copy of the Joint Statement setting out the facts and legal framework relevant to this judicial review application as well as the parties’ submissions is annexed to this Judgment. I will not repeat them.

7.  At the heart of this application is the constitutionality of section 4(2)(b) of the Regulations. The parties are in agreement, and I accept, that the section is a restriction that interferes with the right to take part in the conduct of public affairs directly or through freely chosen representatives. The right is guaranteed under Article 25 of the International Covenant on Civil and Political Rights, as applied to Hong Kong by Article 21 of the Hong Kong Bill of Rights (“HKBOR”), and enshrined in Article 39 of the Basic Law. The Council is a public body and its members are engaged in the conduct of public affairs within the meaning of Article 21(a) of the HKBOR.

8.  I accept the submission that the restriction under section 4(2)(b) is unreasonable having regard to the factors identified in Secretary for Justice & Ors v. Chan Wah & Ors (2000) 3 HKCFAR 459, namely, (i) the nature of the public affairs in question; (ii) the nature of the restriction; and (iii) the reason for the restriction under the section. Members of the Council primarily function as the regulator of the medical profession. Prima facie, the reason for the disqualification in section 4(2)(b) is to ensure that Council members are trustworthy persons of high moral probity. In setting out to achieve this objective, the section imposes a blanket ban on the right to stand for election and to hold office upon conviction of an offence punishable with imprisonment, giving no regard to the nature, gravity and culpability of the offence involved. Thus analysed, the blanket restriction cannot pass the reasonableness requirement. The point is exemplified by the facts of the present case. The conviction involved is a motoring offence of careless driving and a fine of $1000 was imposed. It is common ground that this is a minor conviction. It also has no apparent relevance to the applicant’s suitability to be a Council member. Nonetheless, on an application of the section, the applicant became automatically disqualified from being nominated for election and from holding office as a member of the Council.

9.  I also accept the submission that the question of reasonableness may also be approached by considering the proportionality test: see Chan Kin Sum v. Secretary for Justice [2009] 2 HKLRD 166. Generally speaking, proportionality for a measure requires the consideration of three conditions: (i) the measure must be designed to achieve a legitimate aim; (ii) it must restrict a right or freedom as little as possible consistently with achieving the legitimate aim; and (iii) the effect of the measure on the right of freedom must be proportionate to the achievement of the aim. The disqualification under section 4(2)(b) of the Regulations does not take into account: (i) the nature and gravity of the offence; (ii) the circumstances of the offence and the sentence imposed; and (iii) the time lapse between the conviction and the nomination. The parties are in agreement, and I accept, that the general, automatic and indiscriminate restriction is not one, which can be regarded as no more than necessary for the achievement of the aim that it seeks to achieve and is incompatible with Article 21 of the HKBOR.

10.  It is sufficient to dispose of the judicial review application with the conclusion on the constitutionality and validity of section 4(2)(b) of the Regulations. It is not necessary to deal with the applicant’s argument that the section is ultra vires section 33(4) of the MRO.

11.  Further, it follows from the conclusion on section 4(2)(b) of the Regulations that the Motion is liable to be quashed, given that the respondents’ concession that in passing the Motion, the Council members were substantially influenced by the legal advice that the applicant became disqualified by reason of section 4(2)(b) of the Regulations.

12.  Consequently, the applicant should be reverted back to his position prior to the passing of the Motion and a declaration to this effect is justified. It further follows that the by-election that had commenced on the basis that a vacancy in the office of the membership of the Council had arisen by reason of the applicant’s disqualification and the passing of the Motion is null, void and of no effect, and a declaration to this effect is justified.

13.  The applicant has contended that the Motion is also liable to be quashed on grounds of procedural impropriety. For the purpose of disposing of this judicial review application, it is not necessary to decide on them and I express no views on them.

14.  Applying the normal rule of costs follow event, the applicant, having been successful in obtaining the relief sought, is entitled to have the costs of these proceedings, including the costs of the joint application for an order disposing of the application.

Annex

HCAL 84/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 84 OF 2009

__________________________

BETWEEN

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STATEMENT IN SUPPORT OF AN APPLICATION TO DISPOSE OF
PROCEEDINGS ON AGREED TERMS (PD SL-3, Para 23(1))

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Factual Background

1.  At all material times, the Applicant was (and still is) a registered medical practitioner under Part I of the General Register kept under s.6 of the Medical Registration Ordinance (Cap.161) (“MRO”). Under s.3(2)(j) of the MRO, such a registered medical practitioner, subject to fulfillment of other requirements, is eligible to become a member of the Medical Council of Hong Kong (“the Council”) pursuant to an election held under the Medical Practitioners (Electoral Provisions)(Procedure) Regulations (Cap.161B) (“Election Regulation”).

2.  To the extent relevant to the present proceedings, the relevant provisions of the Election Regulation were made by the Council in 1996 after having had the prior approval of the then Secretary for Health and Welfare (who was later renamed as the Secretary for Food and Health) under s.33(5) of the MRO.

3.  By a notice of election dated 14^th May 2008 and issued under s.6 of the Election Regulation, the Secretary of the Council gave notice of an election for the purpose of returning 3 members of the Council under s.3(2)(j) of the MRO for a term of three years from 24^th January 2009 to 23^rd January 2012 (“the 2008 Medical Council Election”).

4.  By signing a nomination paper dated 8^th August 2008 provided for the purposes of the 2008 Medical Council Election pursuant to the Election Regulation, the Applicant consented to his nomination as a candidate in the 2008 Medical Council Election. The nomination paper contained, among others, a declaration to the effect that to the best of his knowledge and belief he was not disqualified from being nominated or elected by reason of any disqualification contained in s.4(2) of the Election Regulation (“Election Declaration”). Exhibit “THH-7” to the 1^st Affirmation of the Applicant filed herein is a copy of the said nomination paper.

5.  By a notice of result of election dated 17^th December 2008, the Secretary of the Council gave notice that the Applicant, among others, had been declared to be elected as a member of the Council for the aforesaid term of three years commencing on 24^th January 2009. Exhibit “THH-9” to the 1^st Affirmation of the Applicant filed herein is a copy of the said notice of result of election.

6.  Section 4(2)(b) of the Election Regulation provides that a registered medical practitioner is disqualified from being nominated in an election or holding office under s.3(2)(j) of the MRO if “he has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment”. As a matter of fact, the Applicant had been convicted on his own plea of the offence of careless driving, contrary to s.38(1) of the Road Traffic Ordinance (Cap.374), before a magistrate on 28^th July 2008 and was fined $1,000. Careless driving was (and still is) an offence punishable with six months’ imprisonment. In the circumstances, the Applicant’s Election Declaration as contained in his nomination paper was on the face of it inconsistent with s.4(2)(b) of the Election Regulation.

7.  While the Applicant had reported his conviction to the Secretary of the Council by a letter dated 28^th July 2008 (and received by the Council on 30^th July 2008) in the context of Council’s Professional Code and Conduct, the Secretary of the Council, in confirming that the Applicant’s nomination was considered valid by a letter dated 14^th August 2008, had not taken note of the conviction. Exhibits “THH-6” and “THH-8” to the 1^st Affirmation of the Applicant filed herein are copies of the said letters dated 28^th July 2008 and 14^th August 2008 respectively.

8.  In the context of the 2008 Medical Council Election, the Applicant’s conviction was first brought up for discussion by members of the Council in the 298^th policy meeting of the Council on 3^rd June 2009 (“the 1^st Meeting”) under item IX of the corresponding agenda (set out in Council Paper MC/82/09 dated 22^nd May 2009) captioned “The 2008 Medical Council Election” and by way of another Council Paper MC/91/09 of the same title dated 22^nd May 2009, which contained, inter alia, the legal advice given by the Council’s own Legal Adviser on the subject matter.

9.  The Council was advised by its Legal Adviser by way of Council Paper MC/91/09 that, inter alia, the Applicant could not lawfully remain in office as a member under s.3(2)(j) of the MRO for the reasons that “(i) he lacks the qualification to be nominated; (ii) his nomination and subsequent election to office on the basis of his false declaration were void from the beginning; and (iii) he lacks the qualification to hold office as a member under section 3(2)(j) of the MRO.” The Council was also advised that a disqualified candidate who had been unlawfully elected should be terminated in one of several ways, including the Council declaring his office to be vacant under s.3(6A) of the MRO.

10.  In the course of the discussion, the 1^st Meeting became inquorate and the discussion was adjourned.

11.  The discussion resumed in the following Council meeting held on 2^nd July 2009 (“the 2^nd Meeting”) under item II of the agenda of the 2^nd Meeting (set out in Council Paper MC/102/09 dated 22^nd June 2009) captioned “Matter Arising”.

12.  Following the discussion in the 2^nd Meeting, the Council passed a motion by a majority “to declare under section 3(6A)(f) of the Medical Registration Ordinance that Dr. Tse Hung Hing’s office of membership to be vacant, for the reason that in the opinion of the Council he was unfit to perform his duties and exercise his powers as a member of the Council” (“the Motion”). Exhibit “THH-16” to the 1^st Affirmation of the Applicant filed herein is a copy of a Press Release by the Council giving public notice of the whole incident and the Motion passed by the Council on 2^nd July 2009.

13.  Before his office as a member of the Council being declared vacant, the Applicant had been elected as the Chairman of the Ethics Committee of the Council. His chairmanship was premised on him being a member of the Council.

14.  Following from the Council’s declaration of vacancy in the Applicant’s office of membership of the Council by way of the Motion on 2^nd July 2009, the Secretary of the Council issued a notice of by-election and nomination paper on 24^th July 2009, inviting nomination pursuant to s.7 of the Election Regulation in respect of the by-election thus arising (“the By-Election”). Up to the closing date of the nomination for the By-Election on 25^th August 2009, the Secretary had declared only one candidate to be validly nominated.

The Relief sought by the Applicant

15.  By a Notice of Application for Leave to Apply for Judicial Review in Form 86 filed herein on 24^th July 2009, supported by the 1^st Affirmation of the Applicant also filed herein on 24^th July 2009, the Applicant sought, inter alia, the following final relief:-

(1)  Declaration that s.4(2)(b) of the Election Regulation is invalid;

(2)  An Order of Certiorari to remove into the Court of First Instance and to quash the decision of 2^nd July 2009 of the Council;

(3)  Declaration that the Applicant does continue to lawfully hold the office of member of the Council under s.3(2)(j) of the MRO.

The Applicant also sought an interim injunction to restrain the Council from holding an election in respect of the purported vacancy in the office of a member of the Council under s.3(2)(j) of the MRO and from appointing a new Chairman of the Ethics Committee until the conclusion of the present proceedings or further order of the Court.

16.  Leave to apply for judicial review was granted by the Honourable Madam Justice Chu on 27^th July 2009 with the direction that the Applicant fix an inter-partes hearing if he were to proceed with his application for any interim relief. The Applicant filed the Notice of Motion for judicial review herein on 6^th August 2009.

17.  By a Consent Summons dated 25^th August 2009, the Council, the Secretary for Food and Health, the Secretary of the Council and the Applicant made a joint application to the Court in respect of the interim relief sought by the Applicant. By an Order dated 26^th August 2009 made by the Honourable Madam Justice Chu, the Secretary of the Council was joined as the 3^rd Respondent and was restrained from, inter alia, declaring the only validly nominated candidate of the By-Election to be duly elected to fill the vacancy or purported vacancy in the office of the Applicant as a member of the Council under s.3(2)(j) of the MRO pending the hearing and determination of the present judicial review. The Consent Summons was premised on the undertaking of the Chairman of the Council, through the Department of Justice, to the Court not to put the issue of the appointment of a new Chairman to the Ethics Committee of the Council on the agenda of the policy meeting of the Council pending the determination of this judicial review.

Legal Framework

18.  Section 33(4) of the MRO provides, inter alia, that:

“The Council may by regulation provide for-

(a) …

(b) the procedure and other matters in relation to an election or appointment to an office of the Council under section 3(2)(j) including the qualifications of candidates, electors and subscribers for a nomination paper, the particulars of any system of voting and counting, the determination of election results and questioning of the results;

…”

19.  Section 33(5) of the MRO provides that:

“Any regulation under subsection (4) shall not be made unless the prior approval of the Secretary for Food and Health has been obtained.”

20.  Section 4 of the Election Regulation provides:-

“(1) …

(2) A registered medical practitioner is disqualified from being nominated in an election or holding office under section 3(2)(j) of the Ordinance if

(a) …

(b) he has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment;

…”

21.  Article 26 of the Basic Law of the Hong Kong Special Administrative Region provides:

“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.”

22.  Article 39 of the Basic Law provides:

“The provisions of the International Covenant on Civil and Political Rights (“ICCPR”)… as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

23.  Article 25 of the ICCPR was applied to Hong Kong by way of Article 21 of the Hong Kong Bill of Rights, which provides, inter alia, that:

“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;

…”

The Joint Submissions

(A) Constitutionality of s.4(2)(b)

24.  The parties are agreed in their submissions that the disqualification provision under s.4(2)(b) of the Election Regulation is a restriction that engages the right of a permanent resident of the HKSAR to take part in the conduct of public affairs directly or through freely chosen representatives as guaranteed under Article 25 of the ICCPR (as applied to Hong Kong by way of Article 21 of the HKBOR) and enshrined under Article 39 of the Basic Law.

25.  For the reasons submitted below, the parties are agreed in their submissions that the restriction under s.4(2)(b) of the Election Regulation, in this day and age, is unreasonable and/or not proportionate to the achievement of the aim that it seeks to achieve. The parties pray that a declaration be granted declaring that s.4(2)(b) of the Election Regulation is inconsistent with Article 21 of the HKBOR and Article 39 of the Basic Law and is unconstitutional, null, void and of no effect. This is the 1^st Declaration sought in the draft Consent Order.

Article 26 of the Basic Law and Article 21 of the HKBOR

26.  Article 26 of the Basic Law gives permanent residents of HKSAR “the right to vote and the right to stand for election in accordance with the law”. The Applicant’s case is that Article 26 is engaged in the present case.

27.  The Respondents submit that primarily, Article 26 is evidently directed at the right to participate as voter or elector in a participatory democracy and it may be inapt in the context of a right to vote for or stand for election to the Council. In any event, this may not really be an issue since, although Article 26 is couched in absolute terms, the right conferred is that to vote and to stand for election “in accordance with law”. This is a requirement for “certain and accessible” electoral laws: Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166 at [51] – [54]. In the present context it is not suggested that the Election Regulation is not certain and accessible. Moreover, Chan Kin Sum is authority for the proposition that Article 26 of the Basic Law has to be read with Article 21 of the HKBOR. (See paras. 55, 56 and 59-62.) Thus, for the present purposes, even if Article 26 were applicable, the position under that Article would be no different from that under Article 39 of the Basic Law and the implementing Article 21 of the HKBOR.

28.  The leading authority on Article 21 of the HKBOR is the decision of the Court of Final Appeal in Secretary for Justice & Ors. v. Chan Wah & Ors (2000) 3 HKLRD 641. That case concerned an electoral practice which precluded from standing as village representative non-indigenous villagers, i.e. those not of patrilineal descent from a resident of the village in 1898. The practice was held incompatible with Article 21 of the HKBOR. Importantly, Li CJ stated at page 652E of his judgment:

“The crucial issues are: First, is the village representative, upon election and approval by the Secretary, engaged in the conduct of public affairs? Secondly, are there unreasonable restrictions on the right and opportunity to take part?”

Public Affairs

29.  The Court of Final Appeal in Chan Wah considered that “public affairs” in Article 21(a) of the HKBOR covered all aspects of public administration including at the village level and the village representatives’ functions at the village level were matters of public administration. Having analysed this role of village representatives and noted that the role, played directly or indirectly, extended to various bodies in the public arena, the Court of Final Appeal came to the view that a village representative was engaged in the conduct of public affairs within the meaning of Article 21(a) of the HKBOR.

30.  In the present case, the Council is a creature of statute and performs the function of regulating the medical profession in the public interest. The public nature of the Council is evident from the broad spread of its composition and the multifarious functions and duties it has under the MRO, one obvious example of which being the holding of disciplinary proceedings against medical practitioners for misconduct in any professional respect under s.21 of the MRO.

31.  The nature of a professional body, charged with regulating a profession, has been considered by the European Court of Human Rights to be carrying out a public function. In Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 E.H.R.R. 1, being a case concerning the professional regulatory body for doctors in Belgium, the European Court of Human Rights observed in paragraph 64 that:

“The Ordre des medicines was founded not by individuals, but by the legislature; … It pursues an aim which is in the general interest, namely the protection of health, by exercising under the relevant legislation a form of public control over practice of medicine. … For the performance of the tasks conferred on it by the Belgian state, it is legally invested with administrative as well as rule-making and disciplinary prerogatives out of the orbit of the ordinary law and, in this capacity, employs processes of a public authority. …”

32.  The parties are agreed in their submissions that the Council is a public body and that those who participate in its proceedings as Council members are engaged in the conduct of public affairs within the meaning of Article 21(a) of the MRO.

Reasonableness of the Restriction

33.  In Chan Wah, at page 654I, Li CJ (to whose judgment the other judges in the case all concurred) stated that “[t]he question whether restrictions are reasonable or unreasonable has to be considered objectively. One must have regard to the nature of the public affairs the conduct of which is involved and the nature of the restrictions on the right and the opportunity to participate and any reason for such restrictions.” While Li CJ did not specifically analyse the issue of reasonableness in terms of proportionality, the factors to which his Lordship pointed are ones which would also arise on an examination of proportionality.

34.  In Chan Kin Sum, a case concerning a prisoner’s right to vote in respect of Legislative Council elections, Andrew Cheung J, at para. [73], held in the context of Article 21(b) of the HKBOR that “in determining whether a restriction is an unreasonable one or not, it is appropriate to apply the proportionality test or something similar.” At paras. [74] – [76], the learned judge further held that if being a prisoner was a “status” within the meaning of Article 1(1) of the HKBOR, any restriction involving drawing a distinction of status and therefore inequality of treatment would have to be justified and the proportionality test or “justification test” would be the right test to apply, i.e. the restriction is rational and no more than is necessary for the achievement of a legitimate aim. (See also Secretary for Justice v. Yau Yuk Lung and another (2007) 10 HKCFAR 335.)

35.  Taking the factors identified in Chan Wah, the parties are agreed in their submissions that it is necessary to consider the following. First, it is the nature of the public affairs in question. Here, this is the participation in the Council in its role as regulator of the medical profession. Secondly, in respect of the nature of the restriction on the right to stand for election, it is a blanket ban in the case of a medical practitioner who has been convicted of an offence punishable with imprisonment regardless of culpability or the gravity of the offence actually committed. Thirdly, it is necessary to consider the reason for the restriction. The obvious reason for the restriction is to ensure that members of the Council are trustworthy persons of high moral probity as the general body of medical practitioners would be entitled to expect as much from those who represent and regulate them.

36.  While a ban on those serving a sentence of imprisonment, such as is to be found in s.3(7)(b)(i) of the MRO, would be readily explicable, the reason for a ban applicable to someone convicted of a minor motoring offence is hard to see. A conviction for careless driving could hardly be said to reflect adversely on a person’s moral probity. It is also hard to justify why a conviction for careless driving should render a person unsuitable to be a member of the Council which regulates the profession of medicine. The parties are agreed in their submissions that the present restriction under s.4(2)(b) of the Election Regulation would not pass the reasonableness requirement in the light of the factors identified by Li CJ in Chan Wah.

37.  It is also instructive to consider reasonableness from the perspective of proportionality as did Andrew Cheung J in Chan Kin Sum. The European Court of Human Rights has also analysed restrictions on the right to vote from that standpoint: see Hirst v. United Kingdom (No 2) [2006] 42 EHRR 41 and more recently, Zdanoka v.Latvia [2007] 45 EHRR 17. Proportionality for a measure generally requires the fulfillment of three conditions, namely: (1) the measure must be designed to achieve a legitimate aim; (2) it must restrict a right or freedom as little as possible consistently with achieving the legitimate aim; and (3) the effect of the measure on the right or freedom must be proportionate to the achievement of the aim.

38.  The disqualification of a registered medical practitioner from being nominated in an election or holding office as a member of the Council under s.(4)(2)(b) of the Election Regulation, on the basis of his having been convicted of any offence punishable with imprisonment, in Hong Kong or elsewhere, at some point of time in the past, does not take into account (1) the nature and gravity of the offence; (2) the actual sentence imposed; and (3) the time lapse between the conviction and the nomination. Accordingly, a medical practitioner convicted of any trivial offence (so long as it is punishable by imprisonment) anywhere in the world which is totally unrelated to the trust and the expectation that the public may have in the integrity, probity and professionalism of the medical profession, would be subject to a lifelong and absolute restriction from being elected as a member of the Council. Whatever the legitimate aim may be for the restriction under s.4(2)(b) of the Election Regulation, including that the persons elected as members to the Council under s.3(2)(j) of the MRO should be trustworthy persons of high moral probity, the parties are agreed in their submissions that the general, automatic and indiscriminate restriction under s.(4)(2)(b) is not one which can be regarded as no more than is necessary for the achievement of a legitimate aim so as to be compatible with the guarantee under Article 21 of the HKBOR.

39.  The Applicant also contends in Form 86 that s.4(2)(b) is ultra vires s.33(4) of the MRO. In the light of the above, it is not necessary for the Court to decide the issue.

(B)  Quashing of the Council’s 2^nd July 2009 decision

40.  For the reasons given below, the parties are agreed in their submissions that the Council’s decision of 2^nd July 2009 (i.e. the Motion) should be quashed. This is the 2^nd Declaration sought in the draft Consent Order.

41.  The Applicant attacked the legality of the 2^nd July 2009 Motion on a number of substantive grounds as well as procedural impropriety. In particular, the Applicant observed that the Council had followed closely the reasoning of its Legal Adviser as set out in paragraph 9 hereinabove, which was premised partly on the validity of s.4(2)(b) of the Election Regulation, and partly on the false declaration of the Applicant.

42.  For the present purposes, suffice it to say that the Respondents accept that, in passing the 2^nd July 2009 Motion, the Council members were substantially influenced by the advice of the Legal Adviser that by reason of s.4(2)(b) of the Election Regulation the Applicant should have been disqualified from being nominated for election in the first place and from holding the office as a member of the Council, and that it was open to the Council to declare his office to be vacant pursuant to s.3(6A)(f) of the MRO despite that he had been unlawfully elected.

43.  The parties are agreed in their submissions that upon the declaration of s.4(2)(b) of the Election Regulation to be unconstitutional, null, void and of no effect, the Applicant would not have been disqualified from being nominated for the election or from holding the office as a member of the Council by reason of s.4(2)(b).

44.  As submitted above, the Council’s 2^nd July 2009 Motion declaring the Applicant’s office of membership of the Council to be vacant was substantially influenced by the purported disqualification under s.4(2)(b) of the Election Regulation. In Capital Rich Development Ltd. & anor. v. Town Planning Board & anor. [2007] 2 HKLRD 155, the Court of Appeal applied the principle (established in a series of English authorities) that where there are two reasons for a decision, which cannot be disentangled and one of them is bad or where, even though the reasons can be disentangled, the bad reason demonstrably exerted a substantial influence on the relevant decision, the court can interfere to quash the decision. In the light of that, the Respondents accept and respectfully submit that the 2^nd July 2009 Motion could not stand and should be quashed if and when s.4(2)(b) of the Election Regulation should be declared as unconstitutional, null, void and of no effect.

45.  In the light of the above, it is unnecessary for this Honourable Court to decide whether the Motion should be quashed on any other grounds as contended by the Applicant.

(C)  Applicant Lawfully Elected to the Office

46.  The parties are agreed in their submissions that upon the declaration of unconstitutionality of s.4(2)(b) of the Election Regulation and the quashing of the 2^nd July 2009 Motion, the Applicant would revert to his position prior to the passing of the 2^nd July 2009 Motion as having been lawfully elected as a member of the Council.

47.  In the circumstances, the parties are agreed in their submissions that a declaration be granted declaring that the Applicant was lawfully elected as a member of the Council under s.3(2)(j) of the MRO for a term of three years commencing on 24^th January 2009 and expiring on 23^rd January 2012. This is the 3^rd Declaration sought in the Consent Order.

(D)  By-Election

48.  There is currently in force an interim injunction against the Secretary of the Council in respect of the conduct of the By-Election under the Order dated 26^th August 2009 of this Honourable Court.

49.  The parties are agreed in their submissions that upon the making of the 1^st, 2^nd and 3^rd Declarations as sought in the draft Consent Order, no purported vacancy had ever arisen in relation to the Applicant’s office of membership of the Council and the By-Election purported to fill the vacancy should not have been triggered. In the circumstances, the parties are agreed in their submissions that a declaration be granted declaring the By-Election which commenced pursuant to a notice given by the Secretary on 24 July 2009 for filling the purported vacancy in the office of membership of the Council arising as a result of the 2^nd July 2009 Motion to be null, void and of no effect. This is the 4^th Declaration sought in the draft Consent Order.

50.  Subject to the approval of this Honourable Court, the parties agree to dispose of the present application for judicial review in terms of the draft Consent Order attached hereto.

Dated the 2^nd day of November 2009

(Ref : DKFK/271376.02191) (Ref : HCAL 84/09)