CHAN HOI YAN v. LAU SIU LAI AND ANOTHER

FAMV Nos 92 and 94 of 2020

[2020] HKCFA 31

FAMV No 92 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 92 OF 2020 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCAL NO 245 OF 2019)

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FAMV No 94 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 94 OF 2020 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCAL NO 245 OF 2019)

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(HEARD TOGETHER)

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REASONS FOR DETERMINATION

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Mr Justice Cheung PJ:

1.  At the conclusion of the hearing, we dismissed these applications for leave to appeal with reasons to be given later.  These are our reasons. 

2.  Ms Lau Siu Lai was an intending candidate in the Legislative Council By-election for the Kowloon West Geographical Constituency held on 25 November 2018.  On 2 October 2018, she submitted a completed and signed nomination form to the Returning Officer for the By-election to run as a candidate.  The nomination form contained a declaration that she would uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.[1]  By a notice dated 12 October 2018, the Returning Officer informed Ms Lau that he had declared her nomination as a candidate to be invalid,[2] as he was not satisfied that she had duly complied with section 40(1)(b)(i)[3] of the Legislative Council Ordinance.[4] Essentially, the Returning Officer took into account Ms Lau’s previous public statements, declarations and conduct and considered that there were “cogent, clear and compelling materials” to show that Ms Lau did not genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR.  Accordingly, she did not make a genuine declaration as required under section 40(1)(b)(i) of the Ordinance.  Crucially, before coming to his conclusion, the Returning Officer did not give Ms Lau an opportunity to be heard.

3.  The By-election held on 25 November 2018 was won by Ms Chan Hoi Yan. 

4.  On 25 January 2019, Ms Lau lodged an election petition[5] to challenge the election result on the specific ground under section 61(1)(a)(iv) of the Ordinance, namely “material irregularity occurred in relation to the election”.  Amongst other things, she argued that the Returning Officer ought to have given her a reasonable opportunity to respond to any materials which he considered to be showing that she did not have the intention to carry out the obligations under the declaration.  There was therefore a procedural irregularity and an infringement of her right to be heard, vitiating the Returning Officer’s disqualification decision.

5.  She also put in evidence on what her response would have been had she been given an opportunity to be heard, which she said would show that she genuinely and truly intended to uphold the Basic Law and pledge allegiance to the HKSAR.

6.  Ms Lau’s argument found favour with Chow J who, in his judgment dated 21 May 2020,[6] found that there was a material irregularity in relation to the By-election by reason of the Returning Officer’s failure or refusal to give Ms Lau a proper opportunity to respond to the materials intended to be relied upon by him prior to making the disqualification decision, regardless of whether the decision was, strictly speaking, correct or incorrect.[7]  He therefore found that Ms Chan was not duly elected (nor was any of the other candidates).[8]

7.  Both Ms Chan and the Returning Officer sought leave to appeal from the judge’s judgment.[9] Ms Chan relied on one question of great general or public importance, whereas the Returning Officer relied on three (a fourth question has been abandoned).  Although framed in different ways, all four questions essentially raised one real issue, namely whether the judge could decide the question of whether there was a “material irregularity” in relation to the By-election, without first determining whether the Returning Officer’s conclusion that Ms Lau did not genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR was correct – taking into account what Ms Lau now said in the proceedings would have been her response had she been given a proper opportunity to be heard.

8.  In essence, it was contended that the judge was right to regard whether the Returning Officer’s conclusion that Ms Lau lacked the requisite intention to uphold the Basic Law and pledge allegiance to the HKSAR was correct despite the procedural irregularity was a relevant consideration in deciding whether a “material” irregularity had occurred.[10]  However, he erred in considering that it was not necessary to determine the point when deciding whether there was a material irregularity, because the important right of Ms Lau to stand for election protected under article 26 of the Basic Law and article 21(b) of the Hong Kong Bill of Rights, and the rules of natural justice had been breached in this case.[11]  

9.  Mr Johnny Mok SC[12] for the Returning Officer took the further point that it was the “constitutional duty” of the judge to come to a substantive determination of the question whether Ms Lau genuinely intended to uphold the Basic Law and pledge allegiance to the HKSAR, this being a substantive constitutional requirement under article 104 of the Basic Law as interpreted by the Standing Committee of the National People’s Congress on 7 November 2016.

10.  Whether an irregularity is “material” in relation to an election must be determined against the context that elections must be open, free and fair.  Material irregularity as a ground of election petition is to ensure the integrity and credibility of the electoral process and election result.  Materiality is therefore not to be considered by reference to the outcome of the election only.  The nature of the irregularity, its significance and gravity in the context of the decision under challenge, are important considerations,[13] as is the possible impact of the irregularity on the integrity of the electoral process and public confidence in it.  A candidate who is unlikely to win, or is bound to lose, enjoys as much protection of his procedural rights under the election law as a candidate who is a front-runner in the election.

11.  Materiality is a question dependent on the facts of each case.  Whether the non-occurrence of the irregularity in question would have made any difference to the election result is but one possible consideration to be taken into account, and its weight varies depending on the facts.  There can be other overriding considerations.  It follows that depending on the facts, it may or may not be necessary in order to decide the question of materiality to first determine the effect of the irregularity on the election outcome.

12.  In the present case, the gist of Chow J’s reasoning on the question of materiality is contained in these two paragraphs in his judgment:

“25. In the present case, the Returning Officer has not stated, expressly in his affidavit, that had he given Ms Lau an opportunity to make representations and she had given those explanations now advanced by her in these proceedings, he would still have reached the same conclusion that Ms Lau did not genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR at the time of submission of the Nomination Form. The Returning Officer has commented on various aspects of M[s] Lau’s explanations, but has stopped short of making a clear and unequivocal statement that, notwithstanding her explanations, he would still have come to the same conclusion. It does not seem to me that the answer to the question of whether Ms Lau satisfied the Substantive Constitutional Requirement at the time of submission of the Nomination Form, taking into account her explanations, is as clear as suggested by Mr Mok, regardless of whether it is to be determined by a returning officer in the first instance or by the court ultimately. It is not, however, necessary to reach a final conclusion on this matter because (as earlier mentioned), the ‘outcome’ is only one of the relevant considerations in determining whether a material irregularity has occurred.

26. In determining the ‘materiality’ of the irregularity in this case, it is important to bear in mind the nature of the right affected by the Decision, namely, the fundamental right to stand in an election protected by BL 26 and HKBOR 21(b), and the importance of the principles of natural justice or procedural fairness.  There was no urgency that I can see which would make it impracticable for the Returning Officer to give Ms Lau a proper opportunity to respond before making a decision which adversely affected her fundamental right.  The court should be very cautious in accepting an argument that because the same result would have been reached in any event it was not necessary to give the person adversely affected a proper opportunity to be heard.  The unfairness of the situation is obvious, and the court should be slow in sanctioning an unfair practice.  In my view, these matters override the consideration of whether the Decision of the Returning Officer was, strictly speaking, correct or incorrect.”

13.  We take the view that the learned judge has reached a correct conclusion on the question of material irregularity in the present case for the reasons he gave.  The contrary argument is not reasonably arguable.  The right to stand for election in accordance with law is an important fundamental right specifically guaranteed under article 26 of the Basic Law and article 21(b) of the Hong Kong Bill of Rights.  The right to be heard is an important procedural right under the rules of natural justice going directly to the question of fairness.  Reaching a decision as important as the disqualification decision which deprives an intending candidate of her right to stand for an election without affording her an opportunity to be heard at all is an extremely serious matter, affecting not only that person’s basic political and procedural rights, but also the integrity of the electoral process as a whole and public confidence in it.  It cannot be reasonably argued that the irregularity involved in the present case was not a “material” one. 

14.  In this regard, we reject as not reasonably arguable the submission of Mr Mike Lui, for Ms Chan, that materiality was to be determined only by reference to whether there was real and substantial prejudice caused to Ms Lau.  That submission overlooked the importance of procedural fairness in the determination of a person’s substantive rights, which is a major theme underlying our civil as well as criminal justice systems.  Nor did it take into account the larger picture of the integrity and credibility of the electoral process.

15.  We do not find Mr Mok’s further argument that the judge had a “constitutional duty” to decide the question of whether Ms Lau genuinely and truly intended to uphold the Basic Law and pledge allegiance to the HKSAR at the material time reasonably arguable.  With respect, his reliance on Chief Executive of HKSAR v President of the Legislative Council[14] is misplaced.  Of course, if the question of whether a person genuinely and truly intends to uphold the Basic Law and pledge allegiance to the HKSAR becomes an issue in a case and calls for a decision by the court, the court cannot shrink from its responsibility to decide the issue.  However, that begs the question as to whether the issue is one that the court has to decide in the particular case in question.  In the present case, as explained, the judge did not find it necessary to decide Ms Lau’s true intention when deciding whether the irregularity involved was a material one.  We agree with him and find the contrary argument to be not reasonably arguable.  In those circumstances, there is really nothing to Mr Mok’s constitutional duty argument.

16.  We would further add that the Ordinance designates the returning officer as the person who “must” decide the validity of a nomination submitted by an intending candidate.[15] Implicit in this requirement is that the returning officer has to observe all requirements of procedural fairness before deciding that a nomination is invalid.  After such a decision is made, an aggrieved intending candidate may take out an election petition after the election to challenge the returning officer’s decision to invalidate his or her nomination.  Seized of the election petition, the court may have to decide whether the returning officer’s decision is properly open to challenge.  However, where the returning officer has failed to observe the requirements of procedural fairness when deciding against the validity of a nomination, he has simply failed to do what the Ordinance requires him to do.  To ask the court, in an election petition arising from such failure on the part of the returning officer to properly decide the validity of a nomination, to decide the question of validity itself, is simply to ignore what the Ordinance intends.  Such a contention could dangerously amount to an invitation to a returning officer to just ignore the requirements of procedural justice when deciding that a nomination is invalid, in the hope that the court will take the same view on validity if the matter is challenged in court subsequently.  That can hardly be regarded as giving effect to what the Ordinance intends, or as promoting open, free and fair elections.

17.  We also observe that following the series of decisions by the court, of which Ms Lau’s case is one,[16] which all emphasised the importance to observe an intending candidate’s procedural rights when determining the validity of his or her nomination, the likelihood of returning officers making similar mistakes in future is low.

18.  For these reasons, the two applications for leave to appeal were dismissed with costs.