WONG TAI HOI v. AU NOK HIN AND ANOTHER

HCAL 409/2018

[2018] HKCFI 703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 409 OF 2018

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D E C I S I O N

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INTRODUCTION

1.  The issue which arises for determination is whether the Applicant should be permitted to challenge the decision of the Returning Officer (the 2^nd Putative Respondent) that Mr Au Nok Hin (the 1^st Putative Respondent) was validly nominated as a candidate at the 2018 Legislative Council By‑election for the Hong Kong Island Geographical Constituency (“the By-election”) by way of judicial review.  For reasons which I shall explain below, the answer is “no”.

BASIC FACTS

2.  The Applicant was a registered elector, and Mr Au a candidate, at the By-election.

3.  On 9 February 2018, the Returning Officer published in the Gazette a notice that the nomination of Mr Au as a candidate at the By‑election was valid (“the Decision”).

4.  The By-election took place on 11 March 2018, and Mr Au was elected as a member of the Legislative Council for the Hong Kong Island Geographical Constituency.

5.  On 13 March 2018, the Applicant made the present application for leave to apply for judicial review to challenge the Decision. 

6.  In order to understand the Applicant’s complaint, it is first necessary to set out the relevant legal regime relating to the qualification of a person to be nominated as a candidate at a Legislative Council election as well as the requirements of a valid nomination.  In what follows, unless otherwise expressly indicated, references to Sections shall be to the provisions of the Legislative Council Ordinance, Cap 542.

7.  Section 37 sets out the basic “eligibility” criteria for a person to be nominated as a candidate at an election.

8.  Section 39 sets out the circumstances in which a person is “disqualified” from being nominated as a candidate and from being elected as a member of the Legislative Council.  Relevant for the present purpose is Section 39(1)(f), which states as follows:-

“A person is disqualified from being nominated as a candidate at an election, and from being elected as a Member of the Legislative Council, if the person –

(f) is –

(i) ineligible to be a candidate, or to be elected as a Member, at the election, or

(ii) disqualified from being a candidate, or from being elected as a Member, at the election,

because of the operation of this or any other law”.

9.  Section 40 set outs the requirements for a valid “nomination” of a person as a candidate for an election for a constituency.  In particular:-

(1) Section 40(1)(b)(i) provides that a person is not validly nominated as a candidate for an election for a constituency unless the nomination form includes or is accompanied by “a declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

(2) Section 40(1)(b)(iii)(E) provides that a person is not validly nominated as a candidate for an election for a constituency unless the nomination form includes or is accompanied by “a promissory oath given by the person to the effect that, if elected, he or she will not do anything during his or her term of office that results in his or her being disqualified from being elected as a Member at an election because of the operation of this or any other law”.

10.  Article 104 of the Basic Law (“BL104”) is also relevant for the purpose of the present discussion.  It states as follows:-

“When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.”

11.  The requirements for a valid nomination under Section 40(1)(b)(i) and (iii)(E) must now be read together with BL104 because, on 7 November 2016, the Standing Committee of the National People’s Congress of the People’s Republic of China issued an interpretation of BL104, paragraph 1 of which states as follows:-

“To uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China’ and to bear ‘allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China’ as stipulated in Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, are not only the legal content which must be included in the oath prescribed by the Article, but also the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article.” [emphasis added]

12.  In the recent decision of Au J in Chan Ho Tin v Lo Ying-ki Alan (Returning Officer for New Territories West Geographic Constituency) and Others, HCAL 162/2016 (13 February 2018), at paragraph 100, the learned Judge held that the declaration required to be included in or accompany the nomination form of a candidate for an election under Section 40(1)(b)(i) is a “substantive” requirement which can only be satisfied if the nominee makes the declaration “genuinely and truthfully, in that at the time of making the Declaration, the nominee objectively has a genuine and truthful intention to uphold the Basic Law and pledge allegiance to the HKSAR”.

13.  In the Form 86, the Applicant makes the following allegations against Mr Au:-

(1) On 2 November 2016, Mr Au took part in a rally organized by the Civil Human Rights Front (民間人權陣線) and burned a copy of the Basic Law in front of the Liaison Office of the Central People’s Government in the HKSAR.

(2) On 7 March 2018, Mr Au participated in the Legco By‑election Forum (“the Forum”) organized by Radio Television Hong Kong, in the course of which (i) he was asked whether he had burned the Basic Law (你有沒有燒過基本法) and he confirmed that he had, and (ii) he was asked whether he would burn the Basic Law again (依家你仲會唔會燒基本法), and he replied that he would not mind doing it again if he should encounter a protest in which it was necessary to do so (如果我哋見到有一的嘅抗爭，我哋係需要黎到去做呢個行為，我唔介意再做一次。)

See paragraphs 4 and 7 of the Form 86.  Pausing here, I should mention that Mr Au has not filed any evidence for the purpose of resisting the present leave application, but maintains that he has a substantive answer on the merits of the Applicant’s complaint, namely, that every act or utterance takes its meaning from its proper context and cannot be considered in isolation.  This is not the appropriate occasion to examine the merits of Mr Au’s substantive answer to the Applicant’s complaint.  For the present purpose, I shall proceed on the assumption that the Applicant’s aforesaid factual allegations can be proved at the substantive hearing of the application if leave to apply for judicial review is granted.

14.  On the basis of the allegations mentioned in paragraph 13 above, the Applicant contends that Mr Au never intends to, and does not and will not, uphold the Basic Law or pledge allegiance to the HKSAR, and that his declaration included in or accompanying his nomination form for the By-election was false and/or not genuinely or truthfully made (see paragraphs 5 and 8 of the Form 86).

15.  Two grounds of judicial review of the Decision are advanced by the Applicant in the Form 86, namely:-

Ground 1: the Returning Officer has no power to make the Decision and to decide that the said nomination of Mr Au is valid for the reason that Mr Au does not fulfil the requirement of Section 40(1)(b)(i) and BL 104 (see paragraph 28 of the Form 86).

Ground 2: the Returning Officer has no power to make the Decision and decide that the said nomination is valid for the reason that Mr Au does not fulfil the requirement of Section 40(1)(B)(iii)(E) (see paragraph 34 of the Form 86).

16.  In relation to Ground 1, Mr Tim Wong, on behalf of the Applicant, argues that Mr Au’s act of burning a copy of the Basic Law is “an important symbolic act of defiance and display of contempt”, and his statement at the Forum reflects “a continuing objective intention to disregard rather than uphold the Basic Law”.  Accordingly, says Mr Wong, it is impossible for Mr Au to “turn around and assert that he will genuinely and truly commit to upholding the Basic Law” (see paragraph 51 of Mr Wong’s Skeleton Submissions dated 26 March 2018).

17.  In relation to Ground 2, Mr Wong argues that Mr Au’s stance of willingness to burn a copy of the Basic Law again is “incompatible with the Purported Promissory Oath not to do anything that results in his being disqualified from being elected as a Member at an election”, and he has acted “in breach of his Purported Promissory Oath to refrain from doing anything that would result in ‘his being disqualified from being elected as a Member at an election’” (see paragraphs 55 and 56 of Mr Wong’s Skeleton Submissions).

18.  On 23 March 2018, the Applicant applied by summons to amend the Form 86 in relation to (i) the relief sought, and (ii) the proper threshold that should be applied by the court when considering whether to grant leave to apply for judicial review.  The grounds of the intended application as well as the decision under challenge have remained unchanged in the draft Amended Form 86.

19.  Both Mr Au and the Returning Office oppose the Applicant’s application for leave to apply for judicial review, on the following grounds:-

(1) Mr Paul Shieh, SC (for Mr Au) submits that there are alternative remedies available to the Applicant (namely, an election petition under Section 61 and/or disqualification proceedings under Section 73), and thus the Applicant is precluded in law from pursuing judicial review; alternatively leave to apply for judicial review should be refused as a matter of discretion.

(2) Mr Johnny Mok, SC (for the Returning Officer) submits the Applicant’s appropriate remedy would be to proceed by way of an election petition under Section 61(1), and the Applicant has no sufficient standing to challenge the Decision by way of judicial review. Accordingly, the present application for leave to apply for judicial review should be dismissed.

20.  Upon the court’s direction, notice of the present application was given to the Secretary for Justice as Putative Interested Party.  By letter dated 27 March 2018, the Secretary for Justice informed the court that she does not propose to make any submissions at the hearing on 28 March 2018 and asked to be excused from attending the hearing.  The Secretary for Justice’s attendance at the hearing was accordingly excused.

Discussion

21.  Section 61 states as follows:-

“(1) An election to return a Member may be questioned only on the following grounds –

(a) the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541) to have been elected as a Member at the election was not duly elected because -

(i) the person was ineligible to be, or was disqualified from being, a candidate at the election; or

(ii) corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election; or

(iii) corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election; or

(iv) material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or

(b) a ground specified in any other enactment that enables an election to be questioned.

(2) An election to return a Member may be questioned only by an election petition lodged under section 62.

(3) In this section –

election includes nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer”.

22.  Section 62 goes on to provide that that an election petition may be lodged, in the case of an election for a constituency - (a) by 10 or more electors entitled to vote at the election; or (b) by a person claiming to have been a candidate in the election.

23.  On the other hand, Section 73 states as follows:-

“(1) An elector, or the Secretary for Justice, may bring proceedings in the Court against any person who is acting, [or] claims to be entitled to act, as a Member on the ground that the person is disqualified from acting as such.

(2) Proceedings under this section may not be brought after 6 months from the date on which the person concerned acted, or claimed to be entitled to act, as a Member.

(3) If, in proceedings brought under this section, it is proved that the defendant acted as a Member while disqualified from acting in that office, the Court may –

(a) make a declaration to that effect; and

(b) grant an injunction restraining the defendant from so acting …

(4) If, in proceedings brought under this section, it is proved that the defendant claimed to be entitled to act as a Member while disqualified from acting in that office, the Court may –

(a) make a declaration to that effect; and

(b) grant an injunction restraining the defendant from so acting.

(5) Proceedings brought under this section by a person other than the Secretary for Justice are to be stayed until the person has given security for all costs that the person may be ordered to pay to any witness giving evidence in the proceedings on that person’s behalf or to a defendant.

(7) Proceedings against a person on the ground that the person has, while disqualified from acting as, or claimed to have been entitled to act, as a Member may be brought only in accordance with this section.

(8) For the purposes of this section, a person is disqualified from acting as a Member if the person –

(a) is not qualified to be, or is disqualified from being, a Member”.

24.  It can be seen immediately that Section 61(2) and Section 73(7) each provides that applications falling within its scope can only be brought under the relevant section.

25.  “Election petition” under Section 61 relates to challenges to an “election” (which is defined to include “nomination proceedings” and “decisions of the Returning Officer”) to return a member.  The possible grounds of challenge under this section include the situation where a person, who has been declared by the Returning Officer to have been elected as a member at an election, was not duly elected because (a) he was ineligible to be, or was disqualified from being, a candidate at the election (sub-paragraph (1)(a)(i)), and (b) material irregularity occurred in relation to the election, or to the polling or counting of votes at the election (sub-paragraph 1(a)(iv)). These grounds are apt to cover cases where the person was not eligible to be nominated as a candidate under Section 37, was disqualified from being nominated as a candidate and from being elected as a member under Section 38, or was not validly nominated as a candidate under Section 40.  The focus of the proceedings would be on the “election”, and the court is required to determine whether the nomination was correct, whether the person declared by the Returning Officer to have been elected in the election was or was not duly elected, and (if the person declared by the Returning Officer to have been elected was not duly elected) whether some other person was duly elected instead (see Section 67(1) and (2)).

26.  On the other hand, “disqualification proceedings” under Section 73 relate to challenges to a person’s qualification to act as a member of the Legislative Council, and provide a means to an applicant to apply to restrain a person from acting as a member of the Legislative Council where he is disqualified from so acting.  That is the only ground on which an application may be made under this section.  The focus of the proceedings would be on the qualification of the person who acts or claims to be entitled to act as a member of the Legislative Council, and the principal relief to be granted by the court, where it is proved that the person is not qualified to act as a member of the Legislative Council, would be a declaration to that effect and an injunction to restrain the person from so acting (see Section 73(3) and (4)).

27.  It may also be noted that the standing requirements under the two types of proceedings are different: under Section 61, an election petition may only be lodged by 10 or more electors entitled to vote at the election or by a person claiming to have been a candidate in the election, whereas under Section 73, a single elector or the Secretary for Justice may bring disqualification proceedings.

28.  In the present case, the Applicant seeks to challenge the Returning Officer’s Decision to accept Mr Au’s nomination as being a valid nomination.  The Applicant’s complaint is that the Returning Officer should not have accepted the validity of Mr Au’s nomination (which the Applicant characterises as a lack of power on the part of the Returning Officer to do so) because, it is said, Mr Au never intends to, and does not and will not, uphold the Basic Law or pledge allegiance to the HKSAR and thus his declaration and promissory oath included in his nomination form was not truthful or complied with.  It seems to me to be clear that such challenge falls within the scope of Section 61(1), and thus the proper procedure to redress the Applicant’s complaint would be by way of an election petition.  As a single elector, the Applicant does not, of course, have sufficient standing to lodge an election petition.  However, the Applicant has made it clear that it has never been his case that he is unable to find 9 other electors to join him in an election petition.  This was stated in paragraph 15 of Mr Wong’s Supplemental Skeleton Submissions dated 27 March 2018, and confirmed by Mr Wong orally at the hearing.  The standing requirement for an election petition under Section 62 is therefore not an obstacle in the present case.

29.  Alternatively, if it is the Applicant’s position that his true complaint lies in Mr Au’s lack of qualification to act as a member of the Legislative Council and his wish is to stop Mr Au from so acting, the proper procedure to redress such complaint would be by way of disqualification proceedings under Section 73.  Either way, there would be an appropriate statutory, alternative, remedy open to the Applicant.

30.  The question of whether an election, or the qualification of an elected person from acting as a member of the Legislative Council, can be challenged by way of judicial review instead of by an election petition or disqualification proceedings has been considered by the Hong Kong courts on a number of occasions.

31.  In Re Lau San Ching [1995] 2 HKLR 95, it was held by the majority of the Court of Appeal (Nazareth and Litton JJA) that any challenge by a candidate (or prospective candidate) to a decision of a returning officer in a District Board election on whether he was qualified for nomination as a candidate could only be made by way of an election petition after the election, and the remedy of judicial review was excluded.  Godfrey JA, the third member of the Court of Appeal, considered that the remedy of judicial review was not absolutely barred, but “very compelling reasons” must exist before the court would consider allowing intervention before the date of the election by way of judicial review.  Although Lau San Ching concerned a challenge to a District Board election, the relevant statutory provisions considered by the Court of Appeal are materially the same as those relevant to a Legislative Council election contained in the Legislative Council Ordinance.

32.  In Re Tang Kai Tak, HCAL 120/2010 (19 November 2010), a case concerning an election of rural representative, Andrew Cheung J (as he then was) held that the effect of Lau San Ching was that the process of “election” covered the nomination stage (paragraph 26), and that an application for judicial review, insofar as nomination was concerned, should not be entertained whether under the majority view or under Godfrey JA’s dissenting view.

33.  In Hans Richard Mahncke v Electoral Affairs Commission, HCAL 90/2012 (26 July 2012), Lam J (as he then was) applied Lau San Ching and held that an applicant who had reason to believe that his nomination as a candidate at a Legislative Council election might be wrongly rejected had to submit a nomination first and wait until the end of the election to challenge the same by election petition, and could not proceed by way of an application of judicial review prior to the election.

34.  In Leung Chun Yung v Ho Chun Yan Albert (2013) 16 HKCFAR 735, the Court of Final Appeal held that an election petition under Section 32 of the Chief Executive Election Ordinance, Cap 569, was not the only means by which an election to return the Chief Executive could be questioned.  However, the Court of Final Appeal also held that where an election was questioned by persons eligible to lodge an election petition under Section 33 upon any of the statutory grounds set out in Section 32(1)(a) or (b), such challenge must be made by way of an election petition but not by way of judicial review (see paragraphs 18 to 29 of the judgment of the Court of Final Appeal).

35.  In Leung Tin Kei Edward v Electoral Affairs Commission, HCAL 133/2016 (27 July 2016), Au J held that any challenge to a Legislative Council election by a candidate or prospective candidate could only be pursued by way of an election petition, and refused to grant leave to apply for judicial review prior to the election.

36.  In Chief Executive v President of the Legislative Council [2016] 6 HKC 541 (30 November 2016), which concerned proceedings brought by the Chief Executive and the Secretary for Justice by way of judicial review as well as under Section 73 against two elected members of the Legislative Council for failing to properly take the Legislative Council oath, Lam VP expressed the following views, at paragraphs 82-84:-

(1) It would not be open to persons coming within the scope of Section 73(7) to bring proceedings by other means like an application for judicial review under Section 21J of the High Court Ordinance, Cap 4.

(2) It is arguable that Section 73(7) does not preclude someone who is not an elector to commence proceedings under Section 21J in respect of a disqualified legislator.

(3) “[G]iven that Section 73 was enacted to protect members of the LegCo against unlimited challenges to their offices (by way of security for costs and time limit for application), I believe even in cases where an applicant is outside the scope of that section and an application is brought by way of judicial review, the court must bear such protection in mind in assessing whether leave should be granted.  In particular, given that judicial review should not be permitted when an alternative remedy by way of Section 73 is available, the court should consider whether an applicant who is not an elector in the constituency of the member concerned should be allowed to make the challenge and enquire whether the Secretary for Justice or any elector is willing to bring proceedings under Section 73.  The court must also examine the locus standi of such an applicant carefully if neither the Secretary for Justice nor any elector in that constituency is willing to bring proceedings under Section 73.”

37.  Pausing here, it may be noted that:-

(1) Section 21J(1)(a) of the High Court Ordinance provides that where a person not entitled to do so acts in any public office or office which has been created by any enactment, the Court of First Instance may grant an injunction restraining him from so acting.

(2) Section 21K(1)(b) of that Ordinance further provides that an application to the Court of First Instance for an injunction under Section 21J shall be made by way of an application for judicial review.

38.  Lastly, in Mok Ka Kit v President of the Legislative Council and Others, HCAL 189/2016 (27 July 2017), which concerned a challenge, by way of an application for judicial review, to the oath or purported oath taken by an elected member of the Legislative Council by an applicant who was not an elector in the relevant constituency, Au J set aside the ex parte leave granted to the applicant to apply for judicial review on the ground of lack of sufficient interest or standing.  In coming to that conclusion, the learned Judge held that:-

(1) Section 73 provides the proper and principal legal avenue for an elector to take out legal proceedings seeking substantive declarations against a Legislative Council member who has been disqualified but has continued to act or claimed to be entitled to act as a Legislative Council member (paragraph 19).

(2) The “elector” envisaged under Section 73(1) who is entitled to take out the relevant proceedings must be a registered elector in the constituency to which the purported Legislative Council member belongs (paragraph 20).

(3) Unless the applicant in a judicial review challenging the qualification of a Legislative Council member is also an elector in the constituency of the challenged Legislative Council member, that applicant in general should not be regarded as having a sufficient interest to bring the judicial review (paragraph 21).

39.  In summary, the following propositions can be derived from the above authorities:-

(1) Where a person is entitled to challenge a Legislative Council election, or the qualification of an elected person from acting as a member of the Legislative Council, by way of a specified statutory procedure on specified grounds, he is generally precluded from seeking to challenge the election or qualification on those grounds by way of judicial review.

(2) On the other hand, where no specified statutory procedure is available to a person seeking to challenge an election or the qualification of an elected person from acting as a member of the Legislative Council, he is not barred from seeking judicial review merely because the same could be challenged by way of some specified statutory procedure(s) by other person(s) with the necessary standing.

(3) Nevertheless, the remedy of judicial review may be refused in the situation referred to in (2) above on the ground of lack of standing or upon the court’s exercise of discretion.

(4) Whether the remedy of judicial review should be refused on the ground of lack of standing or as a matter of discretion would depend on the facts and circumstances of any particular case.

(5) A person who is not an elector in the relevant constituency would generally not be regarded as having a sufficient interest to challenge an election for that constituency or the qualification of an elected person from acting as a member of the Legislative Council for that constituency by way of judicial review.

40.  In the present case, since the Applicant is, in my view, able to ventilate his complaint of the Returning Officer’s Decision by way of an election petition under Section 61 or, alternatively, Mr Au’s qualification to act as a member of the Legislative Council by way of disqualification proceedings under Section 73, I consider that it is not open to the Applicant to proceed by way of judicial review.

41.  On behalf of the Applicant, Mr Wong seeks to justify the application for judicial review on that ground that “s.73 of the [Legislative Council Ordinance] itself will not be able to dispose of the present matter because [it] does not cover the challenge of a declaration and promissory oath under s.40 of the [Legislative Council Ordinance]” and the court “may grant … injunctive relief pursuant to s.21J of the High Court Ordinance Cap.4 under a judicial review” (see paragraph 22 and 24 of Mr Wong’s Skeleton Submissions).  Mr Wong also says that that “an election petition is inadequate given the relief sought and the unique circumstances faced at the time of the initial application” (see paragraph 15 of Mr Wong’s Supplemental Skeleton Submissions).

42.  In respect of the first point mentioned by Mr Wong (namely, disqualification proceedings under Section 73 would not cover the Applicant’s challenge to the declaration and promissory oath made by Mr Au in his nomination form), it seems to me that the Applicant’s challenge to Mr Au’s declaration and promissory oath is not an end in itself, but only a step in the Applicant’s complaints that the Returning Officer has no power to make the Decision or Mr Au is not qualified to act as a member of the Legislative Council.  For reasons stated above, I consider that these complaints can adequately be redressed by way of an election petition or disqualification proceedings under Sections 61 and 73 respectively.

43.  In respect of the second point mentioned by Mr Wong (namely, the question of relief), it is significant that, as a matter of fact, the Applicant did not apply for any interim relief to restrain the Returning Officer from publishing in the Gazette a notice declaring Mr Au to have been duly elected as a member of the Legislative Council for the Hong Kong Island Geographical Constituency, or Mr Au from entering into office as a member of the Legislative Council.  Since no application for interim relief was made, I express no view on the merits of such application, save that I agree with the submissions of Mr Shieh and Mr Mok that the only legal effect of the publication by the Returning Officer of a notice in the Gazette that Mr Au was duly elected as a member of the Legislative Council is to start the period within which an election petition may be lodged under Section 65(1).  What seems to me to be clear is that the Applicant’s professed need for interim relief could not be a good reason for proceeding by way of judicial review.  In any event, I see no reason why, as a matter of jurisdiction, the court would have no power to grant appropriate interim relief in properly constituted proceedings under Section 61 or Section 73 where the circumstances are such as would justify interim relief being granted.  In so far as final relief is concerned, Section 72 expressly provides that if, on the hearing of an election petition, the Court of First Instance determines that the person who was declared as duly elected as a member was not duly elected, subject to provisions relating to appeals from the Court of First Instance’s determination, that person ceases to be a member and that person’s office becomes vacant from the date on which the written judgment of the court is handed down, while Section 73(3) expressly provides that if it is proved that the defendant acted as a member while disqualified from acting in that office the court may grant an injunction restraining him from so acting.  I do not see what further injunctive relief would be required or necessary in the circumstances.  In particular, I do not accept that the relief of a mandatory injunction to compel the Returning Officer to publish a “rectifying” notice in the Gazette (sought by the Applicant by way of amendment in the draft Amended Form 84) is a valid justification for the Applicant to proceed by way of judicial review in this matter.

44.  There are two further reasons why I am not minded to grant to the Applicant leave to apply for judicial review in the present case.  First, I accept Mr Mok’s submission that the Applicant does not have sufficient standing to apply for judicial review in this matter because he could, with 9 other electors of his choice, proceed by way of an election petition.  To hold that he has standing in such circumstances would be to allow him to circumvent the statutory standing requirement for an election petition under Section 62.

45.  Second, as earlier mentioned, both grounds of the Applicant’s application allege that the Returning Officer has “no power” to accept the validity of the nomination of Mr Au as a candidate at the By‑election. While I can see a possible argument that the Returning Officer should not have accepted Mr Au’s nomination as being valid (and in that sense the Decision may be said to have been wrongly made), I am unable to see how it can be argued that the Returning Officer has, as a matter of law, no power to accept the validity of Mr Au’s nomination.  Such contention is, in my view, not reasonably arguable.

46.  For the avoidance of doubt, I should make it clear that I have not reached any conclusion on the questions of whether Mr Au’s nomination is valid, or whether there is any good or sufficient ground to question his qualification to act as a member of the Legislative Council. These questions do not arise for determination for the purpose of disposing of the present application for leave to apply for judicial review.

disposition

47.  For the foregoing reasons, I dismiss the Applicant’s application for leave to apply for judicial review, as well as his summons dated 23 March 2018.

48.  On the question of costs, the applicable principles as set out in the judgment of the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17, are well settled, and do not have to be repeated here. In the present case, I consider that the Applicant ought to bear the costs of Mr Au and the Returning Officer because the present application is thoroughly ill -conceived, the Applicant does not have sufficient standing to pursue the present application for judicial review, and the attendance of Mr Shieh and Mr Mok on behalf of Mr Au and the Returning Officer respectively has been of material benefit to the court in determining the leave application.  I therefore order the Applicant to pay the costs of the 1^st and 2^nd Putative Respondents, to be taxed if not agreed, with certificate for two counsel.  There shall be no order as to costs as between the Secretary for Justice and the other parties to this application.

49.  Lastly, it remains for me to thank counsel for the assistance rendered to the court.