LAU WING HONG v. CHAN YUEN MAN, AMY (RETURNING OFFICER FOR THE NEW TERRITORIES EAST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

HCAL 844/2018

[2019] HKCFI 2287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 844 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  In this Election Petition, the Petitioner seeks to challenge the decision of 1^st Respondent on 31 January 2018 that his nomination as a candidate in the Legislative Council by-election for the New Territories East Geographical Constituency to be held on 11 March 2018 (“the By-election”) was invalid.

BASIC FACTS

2.  The Petitioner (“Mr Lau”) was born in Hong Kong on 8 October 1993, and has been ordinarily resident in Hong Kong for the whole of his life.  He is a Chinese citizen and a permanent resident of Hong Kong.  In or about December 2017, he decided to run in the By-election.  The 1^st Respondent (“the Returning Officer”) was the returning officer for the By-election.

3.  On 25 January 2018, Mr Lau submitted a duly completed and signed nomination form (“the Nomination Form”) dated 24 January 2018 to the Returning Officer in order to run as a candidate in the By-election.  The Nomination Form contained a declaration (“the Declaration”) by Mr Lau as follows –

“I declare that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

4.  In the Nomination Form, Mr Lau stated, in relation to “Political Affiliation”, that he was an “Independent Localist” (獨立本土派).  Accompanying the Nomination Form was a promissory oath (“the Promissory Oath”) signed by Mr Lau on 25 January 2018, in which he stated that –

“if elected as a Member of the Legislative Council in the above by-election, I will not do anything during my term of office that would result in any one of the conditions specified in section 40(1)(b)(iii) of the Legislative Council Ordinance (Cap 542).”

5.  Mr Lau also submitted a duly signed confirmation form (“the Confirmation Form”) dated 24 January 2018 to the Returning Officer, in which he declared and confirmed, inter alia, the following –

“1. In respect of the above by-election, I have, in accordance with section 40(1)(b)(i) of the Legislative Council Ordinance (Cap. 542), already declared in the nomination form that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.

2. I understand that to uphold the Basic Law means to uphold the Basic Law including the following provisions:

Article 1

The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China.

Article 12

The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government.

Article 159(4)

No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong.

3. I understand that in accordance with section 103 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D), a person who, in an election related document, makes a statement which that person knows to be false in a material particular or recklessly makes a statement which is incorrect in a material particular or knowingly omits a material particular from an election related document commits an offence. I also understand that this confirmation form will be made available for public inspection together with the nomination form.

4. I hereby confirm that I understand the content of paragraph 2 above and, in particular, the reference to Article 1, Article 12 and Article 159(4) of the Basic Law, and, on that basis, I have declared in the nomination form that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.”

6.  By a “Notice of Decision as to Validity of Nomination” dated 31 January 2018 (“the Decision”), the Returning Officer informed Mr Lau that his nomination as a candidate in the By-election had been declared by her (the Returning Officer) to be invalid, on the ground that she was not satisfied that Mr Lau genuinely and truly intended to uphold the Basic Law and pledge allegiance to the HKSAR and that he had duly complied with Section 40(1)(b)(i) of the Legislative Council Ordinance, Cap 542 (“the Ordinance”).  Essentially, the Returning Officer came to that conclusion by reason of Mr Lau’s manifest and sustained stance in support of the independence of Hong Kong up to at least November 2016, notwithstanding Mr Lau’s purported public renunciation of that stance since December 2017 in order to qualify as a candidate to run in the By-election.  On the other hand, Mr Lau’s position was that he had a genuine change of heart after he came to realise, as a result of having worked with a Shatin District Councillor since 1 January 2016 and listening and interacting with fellow citizens, that most people in Hong Kong were against Hong Kong independence.  Attached to the Notice of Decision was a document titled “Reasons for Ruling LAU Wing-hong’s Nomination as Invalid” (“Reasons for Decision”), a copy of which is attached to this judgment as “Annex I”.

7.  As a result of the Decision, Mr Lau was precluded from standing as a candidate in the By-election.  The By-election took place on 11 March 2018, with 6 candidates contesting in the By-election. The voter turnout rate was 41.69%, with 412,325 valid votes cast.  On 12 March 2018, the Returning Office published a “Notice of Result of Election” in the Gazette declaring the 2^nd Respondent (Fan Gary Kwok Wai) to be elected for the New Territories East Geographical Constituency.

8.  On 15 May 2018, Mr Lau commenced the proceedings herein to challenge the Decision.  In the Election Petition, Mr Lau sought the court’s determination on, inter alia, whether Mr Fan Gary Kwok Wai declared by the Returning Officer for the New Territories East Geographical Constituency to be elected in the Notice of Result of Election was duly elected.

9.  On behalf of Mr Lau, Mr Jin Pao, SC raises three principal arguments in support of the Election Petition:

(1)  The requirement under Section 40(1)(b)(i) of the Ordinance was satisfied by Mr Lau by signing the required declaration in the Nomination Form that he would uphold the Basic Law and pledge allegiance to the HKSAR.  It was wrong for the Returning Officer to go behind the signed declaration and examine whether Mr Lau, as a matter of fact, held such an intention.

(2)  Mr Lau was unfairly deprived of the opportunity to make representations in response to the alleged concerns of the Returning Officer as to his intention to uphold the Basic Law and pledge allegiance to the HKSAR.  This was in clear breach of the principles of fairness, which is particularly flagrant since Mr Lau was deprived of his right to stand for election.  The Decision was one-sided and based on selective and incomplete information.

(3)  On the basis of the materials before her, the Returning Officer was wrong to conclude that the Petitioner did not have the requisite intention to uphold the Basic Law and pledge allegiance to the HKSAR.  There were no cogent, clear and compelling materials which objectively and plainly showed that Mr Lau did not have that intention at the time of his nomination.  The materials which she relied on in her reasons did not show that.  The Returning Officer did not attribute the proper weight to the signed declaration that it deserved.

By reason of the aforesaid, Mr Pao invites the court to conclude that Mr Lau was wrongly determined by the Returning Officer to be invalidly nominated, and that a material irregularity occurred in relation to the By-election under Section 61(1)(a)(iv) of the Ordinance[1].

DISCUSSION

10.  Shortly before the hearing of the present Election Petition on 4 September 2019, this court handed down its decision in another election petition, namely, Chow Ting v Teng Yu-Yan Anne (the Returning Officer for the Hong Kong Island Constituency) and Another [2019] HKCFI 2135, on 2 September 2019 (“the Chow Ting Decision”).  The issues determined by the court there are materially the same as those raised for determination in this Election Petition.  In that case, as here, the candidate was not given an opportunity to respond to the materials intended to be relied upon by the returning officer for the decision that the candidate’s nomination was invalid.  The court held, inter alia, that:

(1)  The requirement that a person, to be validly nominated as a candidate in a Legislative Council election for a geographical constituency, should genuinely and truly intend to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region was a “substantive”, and not a mere “formal”, requirement.  The mere fact that the candidate had signed a declaration in his/her nomination form to that effect was not conclusive of the matter.

(2)  The returning officer ought to have given a candidate a reasonable opportunity to respond to the materials intended to be relied upon by the returning officer for a decision that the candidate’s nomination was invalid prior to making the decision, and such failure amounted to a material irregularity in the election.

(3)  Having regard to the importance of the principle of natural justice and the circumstances of that case (including the absence of any urgency which made it impracticable for the returning officer to afford the candidate an opportunity to respond to the relevant materials and allegations, as well as the nature of the decision in question, being one which deprived a Hong Kong permanent resident of the right to stand in a Legislative Council election), the court did not consider it appropriate to exercise its discretion to refuse to grant relief to the petitioning candidate even though the returning officer might well have reached the same conclusion had she given the candidate an opportunity to make representations.

11.  Mr Pao (for Mr Lau) and Mr Johnny Mok, SC (for the Returning Officer) have drawn my attention to various features in the present case which were absent in Chow Ting’s case.  In particular:

(1)  Mr Pao contends that the deprivation of Mr Lau’s right to stand in the By-election is more serious than that in Chow Ting’s case because the Returning Officer in the present case did not even consider whether Mr Lau should be given a chance to make representations, whereas in Chow Ting’s case the returning officer did consider that question but eventually decided against it.  I do not consider this difference to be significant in the present context.  The focus of the inquiry is whether there was a material irregularity in the election.  The material irregularity was constituted by the failure to give the candidate an opportunity to respond to the materials intended to be relied upon by the returning officer for the decision that the candidate’s nomination was invalid.  Whether the returning officer did, subjectively, consider the question of whether to give the candidate an opportunity to make representations prior to making the decision does not, it seems to me, affect the nature or seriousness of the “irregularity” in question.  What is important, I consider, is whether there was/were, in fact, good ground(s) for denying the candidate of such opportunity.

(2)  Mr Pao also argues that the present case is a more serious one because the Returning Officer formed the view that Mr Lau was disingenuous when he publicly declared that he no longer supported the independence of Hong Kong, and she ought to have given Mr Lau an opportunity to answer such serious allegation.  While I accept that the Returning Officer ought to have been given Mr Lau an opportunity to answer this serious allegation prior making the Decision, I do not consider that this matter adds anything of significance to Mr Lau’s case here.

(3)  On the other hand, Mr Mok points out that in the present case (but not in Chow Ting’s case), there is confirmation by the Returning Officer that she would have come to same conclusion even if she had given Mr Lau an opportunity to make representations and he had responded by relying on the same materials and explanations being put forwards in these proceedings.  As mentioned in paragraph 39 of the Chow Ting Decision, I am of the view that the principle of natural justice requires that the person affected by an adverse decision ought generally to be given an opportunity to make representations prior to the decision being made against him.  Retrospective consideration of the representations by the decision-maker is generally unsatisfactory, and should not be accepted by the court as being sufficient save in exceptional circumstance, for the reasons mentioned in paragraph 40 of the Chow Ting Decision.

12.  In short, I see no reason to differ from the conclusions that I reached in Chow Ting’s case.  In respect of the three principal arguments raised by Mr Pao mentioned in paragraph 9 above, my views are as follows:

(1)  The requirement under Section 40(1)(b)(i) of the Ordinance was not satisfied by Mr Lau merely by signing the required declaration in the Nomination Form that he would uphold the Basic Law and pledge allegiance to the HKSAR.  The Declaration was only prima facie evidence of Mr Lau’s intention to uphold the Basic Law and pledge allegiance to the HKSAR.  The Returning Officer was entitled, as a matter of law, to to go behind the signed Declaration and examine whether Mr Lau genuinely and truly held such an intention.

(2)  The Returning Officer ought to have given Mr Lau an opportunity to respond to the materials intended to be relied upon by her for the Decision that the Nomination was invalid prior to making the Decision, and her failure to do so amounted to a material irregularity in the By-election.  The court should not exercise its discretion to refuse to grant relief in the present case.

(3)  Having reached these conclusions, it is not necessary for the court to determine whether the Returning Officer was right or wrong to conclude that Mr Lau did not have the requisite intention to uphold the Basic Law and pledge allegiance to the HKSAR.  This is a hypothetical question which does not arise for determination.  As for the suggested requirement of “cogent, clear and compelling materials” before the prima facie evidence of the Declaration may be displaced, I repeat my observations in paragraph 24 of the Chow Ting Decision.

MR LAU’S SUMMONS FOR LEAVE TO ADDUCE FURTHER EVIDENCE

13.  On 30 July 2019, Mr Lau issued a summons seeking leave to file and serve the Affidavit of Chan Chun Tat, the purpose of which was to adduce evidence to show that there was an instance in relation to the 2018 Legislative Council By-election for the Kowloon West Geographical Constituency where the returning officer did ask Mr Yiu Chung-yim about certain statements that he had made and his intention to uphold the Basic Law, and eventually ruled that Mr Yiu Chung-yim’s nomination was valid.  According to Mr Pao, such evidence shows “the value of the right to be heard, how it is practicable for inquiries to be asked before a decision is made, and the completely arbitrary nature of the failure to make inquiries in the present case”.

14.  There are, I understand, cases where the returning officer made relevant inquiries with a candidate prior to ruling on the validity of the candidate’s nomination, and there are cases where no such inquiries were made.  What happened in one case has, I consider, no relevance to the question of whether, as a matter of law, the Returning Officer ought to make relevant inquiries with Mr Lau prior to ruling on the validity of the Nomination.  The proposed evidence is, in my view, irrelevant.  Accordingly, Mr Lau’s summons dated 30 July 2019 is dismissed with costs to the Returning Officer.

DISPOSITION

15.  For the foregoing reasons, I allow the Election Petition, and declare that (i) Mr Fan Gary Kwok Wai was not duly elected as a member of the Legislative Council for the New Territories East Geographical Constituency as stated in the Notice of Result of Election published in the Gazette on 12 March 2018, and (ii) neither the Petitioner nor any of the candidates standing in the By-election was duly elected in his place.

16.  The parties are agreed that the costs order made in Chow Ting’s case would be appropriate to be made in the event that I should come to the same conclusions based on the same reasons, which I do.  Accordingly, I make an order that the 1^st Respondent shall pay two-third of the costs of the Petitioner in these proceedings (save those mentioned in paragraph 14 above and subject to previous costs order(s) made by the court) to be taxed if not agreed, with certificate for two counsel.  The Petitioner's own costs are to be taxed in accordance with Legal Aid Regulations.