郭卓堅 v. 鄭泳舜

HCAL 415/2018

[2018] HKCFI 593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 415 OF 2018

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D E C I S I O N

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1.  This is an application for leave to apply for judicial review seeking a declaration that the Putative Respondent is disqualified from holding office as a member of the Legislative Council, on the ground that he advocates for the independence of Hong Kong from the Peoples’ Republic of China contrary to Article 104 of the Basic Law.

2.  At the 2018 Legislative Council By-election (“the By‑election”) recently held on 11 March 2018, the Putative Respondent was elected as a member of the Legislative Council for the Kowloon West Geographical Constituency.  On 14 March 2018, the Applicant made the present application.

3.  The basis of the application, it appears, is that the Putative Respondent is a member of “民建聯” (DAB).  The full name of “民建聯” is “民主建港協進聯盟” (Democratic Alliance for the Betterment and Progress of Hong Kong).

4.  In his affirmation filed in support of the application for leave, the Applicant alleges that DAB advocates for “香港民主建港和香港民主建國” (the building up of Hong Kong, and the formation of Hong Kong as a state or country, through democracy), which it is said amounts to advocating for (i) the independence of Hong Kong, and (ii) the formation of Hong Kong as a state or country independent from the Peoples’ Republic of China, contrary to the declaration and promissory oath made by the Putative Respondent accompanying his nomination form as a candidate for the By-election for the Kowloon West Geographical Constituency under Section 40 of the Legislative Council Ordinance, Cap 542.

5.  The Applicant also produces a photograph of the Putative Respondent (and other persons), apparently taken during a visit of a delegation of DAB to San Francisco in front of a banner containing the following words “歡迎香港民主建國聯盟代表團訪問舊金山”.  The date of the photograph is not clear from the exhibit produced by the Applicant.

6.  On the evidence before the court, there is, I consider, no proper basis to contend that DAB is a party or organization which advocates for the independence of Hong Kong from the Peoples’ Republic of China.  The words “民主建港” in the full name of DAB in Chinese cannot be taken in isolation to mean that DAB advocates for the formation of Hong Kong as an independent state or country through democracy.  In order to discover the objects, purposes or intentions of a political party, one ought to consider the founding articles and/or manifesto of the party as well as the words and conduct of that party.  The Applicant has singularly failed to adduce any relevant evidence on those matters.  In any event, the words “民主建港”, in their natural and ordinary meaning, mean only the building up or advancement of Hong Kong through democracy.  It also seems to me to be obvious that the banner as shown on the photograph, in so far as it refers to DAB as “民主建國聯盟”, is a mistake.

7.  There is one other matter that I should mention.  The Applicant’s address as stated in the Form 86 is in Cheung Chau Island.  It would appear that he was not an elector entitled to vote at the By-election for the Kowloon West Geographical Constituency.  It is questionable whether he has standing to make the present application.  In the absence of full arguments, I shall leave open the question of whether a person who is neither a candidate (or prospective candidate) nor an elector for the relevant constituency has standing to challenge, by way of judicial review, the qualification of a person to hold office as a member of the Legislative Council for that constituency.  I consider that the present application can be disposed of on the simple basis that the proposed application for judicial review is not reasonably arguable.

8.  Accordingly, the application for leave to apply for judicial review is dismissed, with no order as to costs.