LIM HO KWAN v. URBAN COUNCIL

1988 No. MP1540

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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DECISION

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1. Mr Lim Ho Kwan is a solicitor of the Supreme Court and was an elected member of the Urban Council.

2. Mr Kwan accepted an appointment as a Permanent Magistrate from 4th July 1988, initially to the 2nd September of the same year. The Acting Chief Justice revoked his appointment to be a Permanent Magistrate with effect from the 6th August 1988.

3. The Chairman of the Urban Council was advised that by virtue of Mr Kwan's appointment as a Permanent Magistrate, he had become disqualified with effect from the 4th July for holding office as an elected member of the Urban Council. The Chairman of the Urban Council informed Mr Kwan that he was obliged to give notice in the Government Gazette of Mr Kwan's office as having fallen vacant with effect from the same date.

4. Mr Kwan feels aggrieved by the intimation of the Chairman of the Urban Council. He seeks leave to apply for judicial review under 0.53 r.3 of the Rules of Supreme Court. It is claimed that the Chairman of the Urban Council is wrong in law in holding that Mr Kwan continues to be disqualified for holding office as an elected member of the Urban Council after revocation of his appointment as a Permanent Magistrate on the 6th August 1988. In fact, what Mr Forsgate proposes is merely to act, as he is enjoined to do, in accordance with the provisions of S.18(a)(i) of the Urban Council Ordinance. Cap. 101.

5. What is sought to be reviewed, if leave be granted, is the decision of the Chairman of the Urban Council duly conveyed to Mr Kwan by a letter dated the 6th August 1988, to invoke S.18(a)(i) of the Urban Council Ordinance by reason that the Applicant, Mr Kwan, had become disqualified with effect from the 4th July 1988 for holding office as an elected member of the Urban Council under S.19(l)(a) of Provisions Ordinance, Cap. 367. What is further sought to-be questioned is a decision of the Chairman of the Urban Council implied from the absence of a response to Mr Kwan's letter of complaint dated the 8th July 1988, not to vary his aforesaid decision of the 6th August.

6. The relief contemplated comprises an Order of Certiorari to remove these decisions into the High Court for the purposes of quashing them. If leave is granted, Mr Kwan will also pray for an Order of Prohibition directed against the Chairman of` the Urban Council preventing him and his officers frog declaring the office of Mr Kwan vacant.

7. Insofar as it is relevant, S.19(1)(a) of the Electoral Provisions Ordinance reads as follows :

"A person shall be disqualified for ..... holding office as a member if he ..... holds any public office (other than as a member auxillary force)."

8. S.18(a)(i) of the Urban Council Ordinance provides inter alia that :

"When a member who is an elected member becomes disqualified by reason of Section 19 of the Electoral Provisions Ordinance, ..... his office as such member shall become vacant and the Chairman ..... shall give notice thereof in the Gazette."

9. "Public office" is defined in S.3 of the Interpretation and General Clauses Ordinance, Cap. 1, as meaning "any office of an employment the holding or discharging of which by person would constitute that person a public officer." A "public officer" means "any person holding an office of emolument under the Crown in the right of the Government of Hong Kong, whether such office be permanent or temporary. "

10. The position could not be clearer : on the 4th July Mr Kwan held a public office and was disqualified by virtue of S.19(1)(a) of the Electoral Provisions Ordinance for holding office as an elected member of the Urban Council. Being disqualified on the 4th July, under S.18(a)(i) of the urban Council Ordinance Mr Kwan's office as an elected member of the Urban Council became vacant as at that date. The law enjoins the Chairman of the Urban Council to give notice of such vacancy in the Gazette. That is precisely what the Chairman, Mr Forsgate, has been proposing to do.

11. It is recognized that the holding of the office of a Permanent Magistrate, be it a public office, would bring upon Mr Kwan a disqualification. Mr Kwan was decidedly holding, though protempore, a public office which had come to a sooner determination by arrangement. So he was disqualified on the 4th July. Counsel emphasizes the tense in the verb "holds" and suggests that such disqualification as envisaged by S.19(l)(a) of the Electoral Provisions Ordinance could not have been intended by the Legislature to be lasting and that it would cease immediately upon the revocation of Mr Kwan's appointment as a Permanent Magistrate. It would be wrong or arguably wrong, so counsel maintains, of the Chairman of Urban Council to take the view, on legal advice, that Mr Kwan's office as an elected Council member has been rendered permanently vacant.

12. S.19(1)(a) of the Electoral Provisions Ordinance encompasses reversible and irreversible occurrences. Counsel further submits that as S.18(a)(i) of the Urban Council Ordinance does not specifically refer to occurrences which are reversible, the section should be construed strictly so as to relate exclusively to such occurrences as are irreversible. Hence, so counsel urges, there seems to be no warrant for liberally applying this section in the Urban Council Ordinance to every conceivable disqualification, as against Mr Kwan's vital interest, with reference to all the events, transient or permanent, reversible or irreversible.

13. I do not subscribe to these arguments. From each of the events specified in S.19(1)(a) of the Electoral Provisions Ordinance, a disqualification would ensue. Whatever may be the occurrence, by accident or design, temporary or eternal, disqualification is a terminal one. The Section does not call for a mere suspension. Moreover, S.18(a)(i) of the Urban Council Ordinance is a catch-all provision which caters for every disqualification, however caused and whatever its nature. Even if disqualification in S.19(1)(a) of the Electoral Provisions Ordinance were susceptible of different meanings depending on the momentary or enduring nature of its causation, S.18(a)(i) of the Urban Council Ordinance would put an end to an elected member's office at any time when he becomes disqualified. S.18(a)(i) provides plainly that when an elected Council member becomes so disqualified, his office shall become vacant and the Chairman shall cause a notice to be published in the Gazette. Mr Kwan was disqualified with effect from the 4th July 1988 and his office has thus become vacant.

14. Counsel implores this Court not to lose sight of the fact that the proposed proceedings are not only matters of concern to Mr Kwan personally but also involve a point of considerable public importance. It is submitted therefore that leave ought to be granted to the Applicant for these issues to be fully ventilated on his inter partes application for judicial review.

15. In my view, the two sections in these two Ordinances are unobscure. The solution is obvious : once the office is vacant, it cannot be re-occupied without a new election. Section 18(a)(i) of the Urban Council Ordinance categorically states that the office of an elected member shall become vacant once he becomes disqualified by reason of S.19 of the Electoral Provisions Ordinance. Mr Kwan's case falls squarely within this provision. Depsite the sustained effort of Counsel and his detailed analysis, I am not persuaded that this is a matter arguable. In my opinion, the intended application for judicial review is a hopeless cause and can have no chance of success. I am duty bound, despite the importance of the intended application to Mr Kwan in particular, to refuse his ex-parte application for leave. The matter is beyond argument without any need for a substantive inter partes hearing. I order that leave sought on behalf of Mr Kwan be denied.