郭卓堅 v. 鄧如欣 (前港島選舉主任) 現任公務員事務局首席助理,政府總部及另一人

HCAL 3814/2019

[2020] HKCFI 242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3814 OF 2019

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D E C I S I O N

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1.  This application for leave to apply for judicial review, made on 23 December 2019, relates to the decisions of the 1^st and 2^nd Putative Respondents, in their capacity as returning officers for the Hong Kong Island Geographical Constituency and the New Territories East Geographical Constituency respectively, that the nominations of two particular candidates in the Legislative Council By-Elections for the two geographical constituencies to be held on 11 March 2018 were invalid. The Applicant complains that their decisions were contrary to the Basic Law and the Hong Kong Bill of Rights, and constituted the offence of misconduct in public office, and asks the court to declare that their conduct was improper and they were guilty of the offence of misconduct in public office.

2.  The basic facts relating to the decisions made by the 1^st and 2^nd Putative Respondents were set out in this court’s previous judgments in HCAL 804/2018 ([2019] HKCFI 2135, 2 September 2019) and HCAL 844/2018 ([2019] HKCFI 2287, 13 September 2019), and will not be repeated here.

3.  The present application is plainly misconceived.

4.  First, the Applicant was neither a candidate nor an elector in the two by-elections, and does not have a sufficient interest in the matters to which the present application relates for the purpose of Order 53, r 3(7) of the Rules of the High Court, Cap 4A.

5.  Second, the relevant decisions were made by the 1^st and 2^nd Putative Respondents on 27 January 2018 and 31 January 2018 respectively.  There has been very substantial delay in the present application for leave to apply for judicial review of the decisions. There is no good explanation for the delay, and no good reason for extending the period for making the present application.

6.  Third, in an application for judicial review, the court cannot determine whether someone is guilty of the offence of misconduct in public office, or any criminal offence.  The proper venue for determining whether a person is guilty of a criminal offence is the criminal court.

7.  Also, in an application for judicial review, the court can only determine whether a public law decision (or a decision which is amenable to judicial review) is unlawful or irrational, or made in a procedurally unfair manner.  The court cannot determine in the abstract whether a public officer is guilty of improper conduct.  In relation the decisions of the 1^st and 2^nd Putative Respondents complained of in this application, this court has already decided in HCAL 804/2018 and HCAL 844/2018 that they gave rise to material irregularities in the relevant by-elections, and the remedies granted by this court have been confirmed as being consistent with the scheme and purpose of election petitions by the Court of Final Appeal in FAMV 307 & 324/2019 ([2019] HKCFA 50, 20 December 2019).

8.  In all, the intended application is not reasonably arguable and has no realistic prospect of success.  Accordingly, the application for leave to apply for judicial review is dismissed.