WONG CHI FUNG v. SECRETARY FOR JUSTICE

HCAL 198/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 198 OF 2015

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J U D G M E N T

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A.  INTRODUCTION

1. The applicant is now 19 years old.  He says he wants to stand for the election as a member of the Legislative Council (“the LegCo”) for the geographical constituency.  However, he is prevented from doing so since section 37(1)(a) of the Legislative Council Ordinance (Cap 542) (“LCO”) provides that a person may only stand as a candidate at an election for LegCo if he or she is at least 21 years old (“the minimum candidature age requirement”).

2. This is the applicant’s leave application to apply for judicial review, seeking to challenge the constitutionality of section 37(1)(a) of the LCO (the “Impugned Provision”) in imposing the minimum candidature age requirement.[1] He is represented by Mr Anson Wong SC leading Mr Wilson Leung.

3. The Secretary for Justice (“the Secretary”) as the putative respondent opposes the application and is represented by Mr Benjamin Yu SC leading Mr Mike Lui.

B.  THIS LEAVE APPLICATION

B1.  The applicant’s case

4. The court should only grant leave to apply for judicial review if the grounds of the intended judicial review are reasonably arguable with a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paragraphs14 - 17, per Li CJ.

5. In this proposed judicial review, the applicant says the Impugned Provision is unconstitutional as the minimum candidature age requirement in setting the age at 21 years old amounts to an unjustified and disproportionate restriction of the right to stand for election.

6. The applicant seeks the relief of (a) a declaration that the Impugned Provision is unconstitutional; or (b) alternatively, a declaration that, on a remedial interpretation, the minimum candidature age of a candidate under the Impugned Provision should be the same as that of a person eligible to register as an elector under section 29 of the LCO (which is 18 years old) (“the Age Declaration”).

7. The applicant’s arguments as advanced by Mr Wong in support of this leave application run in summary as follows.

8. Article 26 of the Basic Law (“BL”) provides that permanent residents of Hong Kong “shall have the right to vote and the right to stand for election in accordance with the law” (emphasis added).

9. Similarly, Article 21(b) of the Bill of Rights (“BOR”) relevantly provides that “Every permanent resident shall have the right and opportunity… and without unreasonable restrictions (a)… (b) to vote and be elected at genuine periodic elections… (c)…” (emphasis added).

10. Thus, the rights of the permanent residents of Hong Kong to vote and to stand for election are enshrined in and protected by BL26 and BOR21.

11. In relation to the right to vote, section 29(a) of the LCO[2] provides that a person is not eligible to be registered as an elector unless he has reached 18 years of age (“the minimum voting age requirement”).

12. In relation to the right to stand for election, as mentioned above, the Impugned Provision provides for the minimum candidature age to be at 21 years old.[3]

13. It is common ground (as it is well established) that these rights are not absolute and can be subject to restrictions permissible under the laws.  However, a restriction would only be regarded as permissible by the law if it satisfies the proportionality test, in that:

(1)  the restriction is imposed to achieve a legitimate aim;

(2)  the restriction is rationally connected to that legitimate aim; and

(3)  the restriction as a measure is no more than necessary to accomplish that aim.

See: Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs [2015] 5 HKLRD 881 (CA) at paragraphs 19 - 20, per Lam VP (and the authorities cited therein).

14. As the minimum candidature age requirement constitutes a restriction on the exercise of the right to stand for election, the burden is thus on the Government to demonstrate why such restrictions can meet the proportionality test.[4] If the restriction cannot be shown by the Government to meet the proportionality test, it is unconstitutional.

15. In other words, in the present challenge, it is for the Government to demonstrate that the setting of the minimum candidature age requirement at 21 years old (a) is to achieve a legitimate aim; (b) is rationally connected to that legitimate aim; and (c) is no more than necessary to achieve that aim.

16. Moreover, while section 29 of the LCO imposes the minimum voting age requirement at 18 years old, the Impugned Provision imposes a higher age of 21 for the minimum candidature age requirement.  The minimum candidature age requirement therefore represents a greater restriction of the right to stand for election.

17. Mr Wong contends that there is no prima facie reasonable or objective justification to impose the higher age requirement with respect to the right to stand for elections than that of the minimum voting age.  Leading counsel in particular relies on the article of “Do Minimum Age Requirements Violate the Right to Stand for Election under the European Convention on Human Rights?”[5] byA Emilianides (“the Emilianides Article”) to support this proposition.

18. Mr Wong therefore submits that it is also necessary under the proportionality testfor the Government to provide sufficient evidence to show why it is proportionate to impose such a higher age restriction on the right to stand for election.

19. However, since the Government has not provided evidence at this stage to demonstrate and explain why the minimum candidature age requirement of 21 can satisfy the proportionality test, the Impugned Provision is (says Mr Wong) on the face of it unconstitutional, and the applicant’s judicial review must therefore be reasonably arguable.

B2.  Court’s view

20. With respect to Mr Wong, I am unable to agree with him.

21. To consider the applicant’s arguments, it is important to begin by looking at some relevant propositions which are not disputed.

22. First, Mr Wong does not dispute that in principle there should be a minimum age restriction on the right to elect and the right to stand for election.  This must be right as there is not even one example that has been cited before the court to show that there is a jurisdiction which imposes no minimum age restriction on these rights.  In particular, it should be noted that the applicant does not challenge the constitutionality of the minimum voting age requirement.

23. Moreover, it is well accepted in the European jurisprudence that the imposition of a minimum age requirement for the exercise of the right to stand for election does pursue a legitimate aim to ensure the maturity of those participating in the electoral process.[6] As recognised in the Emilianides Article itself at page 675:

“The European Court of Human Rights has already noted that ‘the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process’. Bearing in mind that the contracting states are not limited in specifying a legitimating aim, it should be accepted that imposing a minimum age requirement for the exercise of the right to stand for election pursues a legitimate aim and therefore does not in principle violate article 3 of Protocol No. 1.” (emphasis added)

24. Thus, it is clear that the imposition of a minimum age restriction in general serves the legitimate aim to ensure maturity of those participating in the electoral process.

25. Second, it is now also well established that when the court is dealing with a proportionality challenge relating to an issue which involves political or economic judgment, due margin of appreciation should be accorded to the relevant authority’s decision on that issue in deciding whether the restriction is no more than necessary.[7]  In this respect, Cheung CJHC in Kwok Cheuk Kin, supra, has emphasized that the court in applying the proportionality test should give a broad margin of appreciation to the government or legislature regarding its discretionary judgment on issues relating to political judgment.  The learned CJHC explained at paragraphs 5 - 6 as follows:

“5. It is true that generally speaking, the intensity of scrutiny varies with the nature of the right involved when applying the proportionality test. But this is not the only relevant consideration. The nature of each individual issue encountered on the facts of the case when applying the proportionality test is also highly relevant. And different limbs of the test may throw up different issues of different nature.

6. Generally speaking, the court is neither constitutionally positioned nor institutionally equipped to deal with a political issue, that is, an issue essentially involving political rather than legal judgment, or for that matter, a complicated polycentric socio-economic issue raising sensitive questions of resource allocation. This is so regardless of whether the right sought to be restricted is a fundamental right, and also whether the issue is encountered at the first limb or the third limb of the proportionality test. For good reasons, the court should, generally speaking, accord the government/legislature a broad margin of appreciation regarding their discretionary judgment on such an issue.” (emphasisadded)

26. The question concerning what age should be imposed under the minimum age requirement on the right to stand for election is precisely such an issue involving discretionary political judgment.  Again, Mr Wong fairly and rightly does not dispute this.

27. When considered against the above unchallengeable premises, in my view the Secretary has demonstrated in the present application that the minimum candidature age requirement unarguably has met the proportionality test.  I will explain why.

28. First, as said above, the imposition of the minimum candidature age requirement is obviously to achieve the legitimate aim of ensuring a degree of maturity for the person to carry out the functions and duties of a legislator.  There is nothing objectively to show that that cannot be the aim.  See also paragraphs 30 to 31 below.

29. Second, that measure (ie, to impose a minimum age requirement) is also obviously rationally connected to the aim of ensuring a degree of maturity of the candidate who may be elected.  See paragraphs 23 to 24 above.

30. Third, as the Secretary has shown, there are many other jurisdictions that have set the minimum age of candidature for elections at 21 or even higher.[8]  Moreover, as stated in the “Code of Good Practice in Electoral Matters, Guidelines and Explanatory Report” (adopted by the Venice Commission at its 52^nd Plenary Session on 18 - 19 October 2002) at page 14, paragraph 6a, the age limitation for the right to stand for election should generally be not more than 25 (save where there are specific qualifying ages for certain offices such as senator or head of state).

31. The age of 21 therefore lies clearly within a range of reasonable alternatives that is open to the LegCo to adopt in enacting the Impugned Provision to impose the minimum candidature age requirement.  The choice of that age is predominantly a discretionary political judgment for the elected members of the LegCo to make.  In giving a broad margin of appreciation to the LegCo’s discretionary judgment, the court clearly would not regard the decision to adopt 21 years old as the minimum candidature age as disproportionate.

32. Notwithstanding the above, Mr Wong advances the following arguments to say why it is reasonably arguable that the Impugned Provision cannot meet the proportionality test.

33. Mr Wong first emphasizes to the court that there is a difference between the minimum voting age requirement (18) and the minimum candidature age requirement (21).  He then submits that it is however prima facie illogical to suggest that a person of 18 years old can elect (and thus decide) who could represent him or her as a member of the LegCo but the very same person himself or herself cannot stand for the election as a member of the LegCo.  This illogicality is further supported (says Mr Wong) by the fact that there are also many countries that have adopted the same minimum age limit for both the right to vote and the right to stand for election.[9]

34. As mentioned above, Mr Wong therefore argues that it is difficult to see any reasonable and objective justification for the differentiation of minimum age requirements treatment with respect to voters and candidates.  He draws the court’s attention to the Emilianides Article, where the learned author argues that there is no reasonable or objective justification to impose a higher age requirements with respect to the right to stand for elections, and any such higher age restrictions (compared with a lower age restriction of the right to vote) violate Article 3 of Protocol No 1 of the European Convention on Human Right.[10]

35. Mr Wong thus says in order to show that the minimum candidature age requirement represents a proportional restriction, the Government must also demonstrate by evidence (by contrast to the minimum voting age of 18) what further legitimate aim it is to achieve in imposing the higher age restriction, why the higher age restriction is rationally connected to that aim, and that the higher age restriction is no more than necessary to achieve that aim.[11]

36. In the absence of this evidence, Mr Wong says the applicant’s intended judicial review must at least be reasonably arguable.

37. With respect, I am unable to agree with Mr Wong.

38. Mr Wong’s arguments in substance say the Government has to explain why the minimum candidature age cannot be set as the same as the minimum voting age.  Underpinning these arguments is the fundamental proposition that the right to vote and the right to stand for election are rights of similar nature which justify similar restrictions in the first place.

39. However, this underlying proposition is in my view incorrect.

40. The two rights are obviously different in nature,[12] and there is a fundamental difference between the right to stand for election and the right to vote.  As rightly pointed out by Mr Yu, the voters are not occupying any public office that comes with its responsibilities that need to be discharged in the public interest.  However, a candidate, if elected, does.  The two rights therefore carry important and significantly different public interest responsibilities, which would by themselves justify the imposition of different restrictions in the exercise of the rights.

41. This is echoed by Lam J (as the learned VP then was) in Wong Hin Wai, supra, at paragraph 29, where His Lordship observed that it is justified to impose considerably stricter restrictions on the right to stand for election than that on the right to vote by reason of the notable difference between these two rights:

“29. These last two cases, like Chan Kin Sum v Secretary for Justice, were about the right to vote. But the principle of proportionality is equally applicable to the right to stand for election though stricter requirement can be imposed on eligibility to stand as compared with eligibility to vote. Given the distinction between the role of a voter and the role of candidate for Legco election (who, if elected, would have to perform the duties of a Legco member), the legitimate aims for which reasonable restriction can be imposed can be different. Thus, the criteria for eligibility for the latter could be considerably stricter than those for the former. This is not disputed by Mr Dykes SC. However, the criteria restricting the right to stand for election must still be subject to the proportionality test as demonstrated by Ždanoka v Latvia and R (Barclay) v Lord Chancellor, both of which were cases on the right to stand for election.” (emphasis added)

42. In this regard, the Secretary has also drawn the court’s attention to significant materials and literature on electoral matters which support the views that, given the higher responsibility associated with the right to stand for election, it is reasonable for an electoral regime to impose a minimum age of candidature which is higher than that of voting:

(1)  General Comment 25 on ICCPR Article 25 (adopted by the UN Human Rights Committee at its 1510^th meeting (57^th session) on 12 July 1996) provided in paragraph 4 that “Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria.  For example, it may be reasonable to require a higher age for election or appointment to particular offices than for exercising the right to vote, which should be available to every adult citizen…”.

(2)  In Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2^nd edn, 2005), the learned author, after discussing the right to vote in paragraph 26 (page 577 - 578), commented in paragraph 27 (page 578 - 579) that “With respect to the right to be elected, farther-reaching restrictions are sometimes permissible.  For instance, the minimum age for holding office normally lies somewhat higher than that for voting, and for some organs, such as the senate or a State president, a significantly higher minimum age is often provided for.  As a consequence of the higher responsibility associated with election to a public office, certain grounds for exclusion going beyond those on the right to vote may also be considered reasonable in this regard…”.

(3)  In the “Code of Good Practice, Guidelines and Explanatory Report”, supra, at page 14, paragraph 6a, it was stated that “There must be a minimum age for the right to vote and the right to stand for election; however, attainment of the age of maturity, entailing not only rights but also obligations of a civil nature, must at least confer the right to vote.  A higher age may be laid down for the right to stand for election but, save where there are specific qualifying ages for certain officers (senator, head of state), this should not be more than 25.”

43. In addition, Mr Yu has referred the court to various judgments of the European Court of Human Rights and other authorities, which all support the position that, given the more important responsibilities the right to stand for election entails, it is permissible and justifiable to adopt a higher minimum age requirement to that right than the right to vote.  See: Ždanoka v Latvia at paragraph 106; Melnychenko v Ukraine (2006) 42 EHRR 39 at paragraph 57; Yumak v Turkey (2009) 48 EHRR 4 ECtHR at paragraph 109; Schabas, The European Convention on Human Rights page 1029; Lester Pannick & Herberg, Human Rights Law and Practice, 3^rd edn, paragraph 4.21.11; Clayton and Tomlinson, The Law of Human Rights, 2^nd edn, paragraph 20.36.

44. Considered in the light of the wealth of these materials and the authorities, the applicant’s reliance on the Emilianides Article cannot in my view assist him. As submitted by Mr Yu, Mr Emilianides’[13] view represents a minority and goes against the tide of those materials and authorities.

45. More importantly, it should be noted that even Mr Emilianides himself accepts in his conclusion (at page 683) that “the lack of European consensus on the matter, in conjunction with the fact that the states enjoy a significantly wide margin of appreciation with respect to the rules governing eligibility to stand for election, can only lead to the conclusion that there is, in principle, no violation of proportionality with respect to the minimum age of candidature set by different states” (emphasis added).

46. It is therefore incorrect as a starting premise to say that the degree of the age restriction between the two rights should be in principle the same and thus the Government must provide further justifications of any difference between these two restrictions.

47. Hence, there is no justification or need to compare the minimum candidature age with the minimum voting age under the proportionality test as suggested by the applicant.  The proportionality justification for the minimum candidature age should be considered independently by reference to the nature of and responsibility associated with that right and not by comparison to the restrictions imposed on the right to vote.  This is what the court has done above.

48. Mr Wong then further say that the Government has the burden to show (a) what legitimate aim the minimum candidature age of 21 is imposed to achieve; (b) how they are rationally connected; and (c) why the requirement represents a proportionate response for achieving that aim.  As such, Mr Wong submits that the Government should provide evidence or materials to show and explain at least the following:

(1)  Any political developments that led to the enactment of the Impugned Provision.

(2)  Any public consultation that was conducted prior to the enactment of the Impugned Provision.

(3)  Any ministerial statements that were made in proposing the Impugned Provision to the LegCo.

(4)  Any debate within LegCo during the enactment of the Impugned Provision.

(5)  Any internal discussions within the Government on setting the candidature age at 21 years old and/or maintaining a discrepancy between the candidature age and the voting age.

(6)  Any evidence, empirical data, or research to support setting the candidature age at 21 years old and/or maintaining a discrepancy between the candidature age and the voting age.

49. Mr Wong relies in particular on the observations made by the courts in Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524 (CA) and at paragraphs 21 and 24, per Ma CJHC (as the learned CJ then was) and Chan Kin Sum, supra, at paragraph 146, per A Cheung J (as the learned CJHC then was) to emphasise that it is necessary for the Government to provide the above evidence or materials under the proportionality test.[14]

50. As the Secretary has not yet at this leave stage provided the evidence or materials of the above nature, Mr Wong again submits the applicant’s judicial review must be reasonably arguable.

51. I cannot see how the observations in the above cases could assist Mr Wong.

52. The above observations made in Kwok Hay Kwong and Chan Kin Sum should be understood in the context of the way the arguments were raised relating to the specific issues in those cases.

53. In Kwok Hay Kwong, there was a challenge by the applicant’s medical doctor on the constitutionality of four restrictions in the Professional Code and Conduct for the Guidance of Registered Medical Practitioners against practice promotion in newspapers, magazines or other print media imposed by the Medical Council on doctors.  The Medical Council said these restrictions were necessary as a matter of public interest to avoid the public being exposed to inaccurate or misleading information.  The applicant however argued that these restrictions amounted to unjustified and disproportionate restrictions of the right to freedom of expression, in particular when it was permissible for doctors to provide similar information on signboards, service information notices under the rules.  It is in this particular context of arguments and when dealing with the matters on whether the Medical Council can demonstrate that the restrictions satisfied the proportionality test that Ma CJHC observed these at paragraphs 21 and 24:

“21. The question whether sufficient justification has been shown can be a complicated one. In the determination of the issue of justification, the court will of course have to look at the evidence adduced by the decision-maker. Where a constitutionally guaranteed right has been shown to be relevant, the burden is on the decision-maker to justify any restriction on that right. Here, the courts apply the proportionality test which was formulated in the following terms in the judgment of the Court of Final Appeal in Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, at p.253I (para.36) (a case dealing with the right of peaceful assembly):

36. As the legitimate purposes that may be pursued by any restriction on the right of peaceful assembly have been constitutionally specified in Hong Kong, the proportionality test should be formulated in these terms: (1) the restriction must be rationally connected with one or more of the legitimate purposes; and (2) the means used to impair the right of peaceful assembly must be no more than is necessary to accomplish the legitimate purpose in question.

…

24. It follows from these points that given the burden on the decision-maker, it becomes incumbent on it to provide the court and the applicant with all relevant materials. I dealt with this aspect in the judgment of this Court allowing the respondent to adduce further evidence on appeal, see the reasons for judgment dated 27 September 2007 at para.6 (the need to place ‘all the cards face upwards on the table’). Stock JA in his judgment in the same appeal put the matter, with respect, entirely correctly:

18. Where there is an infringement on the freedom of expression (or, for that matter, on any other fundamental freedom) but it is argued that the infringement is lawful, it is for the body imposing the restriction – in this case, the Council – to show a justifiable societal objective for the restriction, and that the restriction goes no further than is necessary to achieve that objective. It is difficult, if not impossible, to envisage an infringement that could be justified without a clearly explained rationale, even though the depth of the explanation required will vary according to the nature of the restriction and its context. But to state merely that the decision accords with the majority view of a professional body as revealed in a consultation exercise comes nowhere close to an acceptable rationale. And to say that the court should allow the Council a margin of appreciation is fine so far as it goes, but means nothing in a vacuum. One can only accord a degree of appreciation if one is told what it is one is being asked to appreciate.” (emphasis added)

54. In Chan Kin Sum, there was a challenge on the constitutionality of the restriction on the right to vote in disqualifying certain categories of prisoners as eligible voters in the LCO.  Again, it is in the context of the Government’s arguments that the intended effect to be achieved by that restriction was crime prevention that A Cheung J said this at paragraphs 139 and 140:

“139. That depriving a prisoner of the right to vote (or to be registered as an elector) can help the prevention of crime is an indefensible notion. No evidence whatsoever has been produced by the Government, and the burden is certainly on the Government to justify, that a meaningful number of prisoners would have thought twice before committing their crimes if they had known that if caught, convicted and sentenced to imprisonment, they would lose the right to be registered as an elector or to vote. Nor is there any evidence that consideration of that sort ever affected their decisions to commit crimes, if it had ever entered into their minds at all.

140. Likewise, as regards the suggested aim to give an incentive to citizen-like conduct, this is really a matter of evidence. And there is simply no evidence, expert or otherwise, coming from the Government to say that prisoners who have been deprived of the right to vote whilst serving their sentences would, after release, treasure more the right to vote, and that would in turn act as an incentive for them to behave in a citizen-like manner. The same can be said about enhancing civic responsibility and respect for the rule of law.” (emphasis added)

55. These observations certainly cannot be viewed as generally limiting the type or nature of evidence, materials or information that the Government may be able to rely on to show that a challenged restriction is proportional in the relevant context.

56. If Mr Wong is seeking to say that these cases support a general proposition that a putative respondent can only discharge his burden under the proportionality test by way of what can be properly described as evidence, that in my view also cannot be right.  These observations cannot be intended by the courts to lay down a general proposition or principle that in every case where a proportionality challenge is made, the Government can only discharge that burden by the use of evidence.[15]

57. There is no question that, when the Government or decision-maker is met with a proportionality challenge, the burden is on the Government or the decision-maker to justify the challenged decision or restriction on the basis of proportionality.  However, as a matter of general principle, what may amount to sufficient information, materials or evidence to satisfy the court that a proportionality challenge is met must be case specific, depending on the specific issues involved and the way the arguments and submissions are advanced.  The court in appropriate circumstances must also apply a degree of common sense in assessing what amount to sufficient materials or evidence.  There cannot be any hard and fast rules.

58. In the context of the arguments and submissions that have been raised in the present case, I am satisfied that, by way of the above materials, information and authorities the Secretary has referred this court to, the Government has demonstrated that the minimum candidature age requirement does meet the proportionality test as I have explained at paragraphs 22 - 31 and 40 - 47 above.

59. Finally, Mr Wong submits that there are two further reasons as to why it is reasonably arguable that the Government cannot show that the minimum candidature age requirement restriction is proportional.

60. First, Mr Wong says the approach to proportionality is one of “minimal impairment”, which is a very high hurdle.  In the absence of the relevant evidence as the applicant has argued above, the Government simply cannot discharge its burden when viewed under this stringent minimal impairment approach.

61. I do not think the minimum impairment approach argument adds anything.

62. As emphasized recently by Lam VP in Kwok Cheuk Kin, supra, at paragraph 31, there is only one proportionality test.  The learned Vice President also made it clear that whilst the restriction should be “no more than necessary to accomplish the legitimate aim”, one must also recognise that “there must be scope for according due margin of appreciation to the executive or legislative arms of the government in areas of discretionary judgment”.  The “minimum impairment” has always been part of the proportionality test, and as reiterated by Fok PJ and Stock NPJ in Official Receiver v Zhi Charles (2015) 18 HKCFAR 467 at paragraph 53, the concept of “a range of reasonable alternatives” is built into the “minimum impairment” approach.  In relation to this, as I said above, the authorities[16] have repeatedly said that when one is dealing with proportionality on issues involving political judgment (as in the present case), a broad margin of appreciation must be accorded to the government or legislature’s decision on those issues to see if the subject restriction is “no more than necessary”.

63. Second, Mr Wong also argues that since there is no evidence to show that the LegCo has directed its mind to the issue of proportionality in enacting the Impugned Provision, its view should carry less weight.[17] As a result, in assessing whether the Impugned Provision can meet the proportionality test, the court should not accord much “margin of appreciation” to the so-called judgment of the LegCo in “choosing” 21 years of age as the minimum candidature age.  Mr Wong relies on a number of cases to support this contention: R (Gallastegui) v Westminster City Council [2013] 1 WLR 2377, R (MA) v Secretary for Work and Pensions [2014] PTSR 584 and Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420.

64. As rightly pointed out by Mr Yu, these cases cited by Mr Wong are all in wholly different context, and the observations quoted from them only go to the weight to be attached to the view of the legislature in the circumstances of those cases.

65. To what extent the court can or should accord the margin appreciation to the decision maker is obviously a matter dependent on the particular context of and the issues raised in each case.  See Cheung CJHC’s emphasis at paragraph 5 of Kwok Cheuk Kin quoted at paragraph 25 above.  There cannot be a general principle that whenever it cannot be shown that the relevant authority has not specifically directed its mind to the question of proportionality, the challenged decision or piece of legislation which seeks to restrict a protected right must be regarded as incompliant with the proportionality test.

66. In the present case, we are concerned with an area involving a political issue, a matter which has been rightly accepted by Mr Wong to fall within the role of the legislature.  Further, as this court has previously noted in the first instance decision in Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs [2014] 2 HKLRD 283 at paragraph 43(3), democratically elected politicians can be expected to be particularly sensitive to measures necessary to safeguard the integrity of the democratic system (see also the authorities cited therein).  In the premises, and in the context of the arguments raised in the present case and the well established and accepted propositions referred to above, I do not think the mere absence of evidence to show that LegCo had directed its mind to the proportionality question in enacting the Impugned Provision affects the extent of the broad margin of appreciation that I should accord to the LegCo’s discretionary area of judgment under the proportionality test.

67. I therefore also do not think Mr Wong’s above contention can take the applicant’s case any further.

68. For all the above reasons, I do not find the applicant’s proposed challenge of the constitutionality of the Impugned Provision reasonably arguable.  Leave to apply for judicial review should not be granted.

B3.  Further observation on the relief of the Age Declaration

69. Finally, it is also worth mentioning that, even if (which I for the above reasons do not accept) I had found the grounds of challenge reasonably arguable, I would still not have granted leave to seek the relief of the Age Declaration based on a remedial interpretation.  This is so as I accept Mr Yu’s submissions that there is no room in the circumstances of the present case to apply the suggested remedial interpretation of the Impugned Provision to effectively read the reference to “21 years of age” to mean “18 years of age”.  My brief reasons are these.

70. It is correct that the court has the implied power to adopt remedial interpretation for the purpose of making a statutory provision BL or BOR compliant.  Striking down a legislative provision for being not constitutional is appropriate only where a remedial interpretation is impossible.  The rationale is that the court interferes less with the exercise of legislative power than it would if it cannot engage in a remedial interpretation.  See: HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at 611B - D, H - I, per Sir Anthony Mason NPJ; Ghaidan v Godin-Mendoza [2004] 2 AC 557 at paragraph 32, per Lord Nicholls.

71. On the other hand, although it is a matter of judicial duty to adopt a remedial interpretation of an infringing provision, it could only do so as far as it is possible: Lam Kwong Wai at 611B - D, per Sir Anthony Mason NPJ.

72. In this respect, the court should not make decisions for which they are not equipped such as where their choice amongst several ways of making a provision BL or BOR compliant may involve issues that should be deliberated by the legislature: Ghaidan at paragraph 33, per Lord Nicholls.  Further, it is not permissible for the court to reach an interpretation in the name of remedial interpretation the result of which is wholly different from what the parliament has intended.  See also: In re S (Care Order: Implementation of Care Plan) [2002] AC 291 at paragraphs 44 – 45, per Lord Nicholls; R (Anderson) v Home Secretary [2003] 1 AC 837 at paragraph 30, per Lord Bingham.

73. The tool of remedial interpretation therefore has its limits at least to the extent that the court should not make decisions on matters that should be deliberated and determined by the legislature, in particular where, as Lord Nicholls stressed in Ghaidan at paragraph 33, there is a number of ways to make the infringing provision constitutional.

74. I agree with Mr Yu that that is precisely the situation in the present case.  Even if (which again I do not accept for the reasons stated above) the issue of constitutionality of the Impugned Provision is decided in favour of the applicant, the question must still remain at large as to what the minimum age of candidature should be.[18]  It cannot be right that the choice is only either 21 or 18, which is what the applicant has suggested by seeking the Age Declaration.  What should be the proper choice of the minimum age of candidature is obviously a matter of political judgment for the legislature, but not one for the court to make in the name of remedial interpretation. See again the learned CJHC’s observations in Kwok Cheuk Kin, supra, at paragraph 6.

75. The applicant’s reliance on W v Registrar of Marriages (2013) 16 HKCFAR 112 to support the remedial construction as suggested is misplaced.  The circumstances in this case are simply not the same as the facts in W,where the court could readily find an interpretation compliant with the BL or the BOR because the facts in that case did not present a number of ways to achieve constitutionality.  W is therefore distinguishable.

76. For these reasons, the court would not in any event grant the Age Declaration even if it has found the Impugned Provision to be unconstitutional.

C.  CONCLUSION

77. The applicant’s grounds of challenge are not reasonably arguable with a realistic prospect of success.  I therefore refuse to grant him leave to apply for judicial review.

78. I further order on a nisi basis that there be no order as to costs.  Unless any of the parties applies by summons to vary it, this costs order shall become absolute 14 days from today.

79. Lastly, I must thank counsel for their valuable assistance in this matter.