LAI CHEUK YIN v. MARGARET CHEUNG WAI FONG AND ANOTHER

HCAL 631/2025

[2025] HKCFI 2563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 631 OF 2025

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JUDGMENT

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A.  Introduction

1.  In some disputes, the intensity of feeling is inversely proportional to the value of the issues at stake. This dispute is one of them.

2.  The present judicial review proceedings arise out of the following essential facts:

(1)  The Applicant is a full-time undergraduate student at the Lingnan University (“LU”).

(2)  The Applicant stood as a candidate for election by his peers – the other full-time undergraduate students – to the Court, the Council and the Senate of LU (“Election”).

(3)  The Election was overseen by the 1^st Putative Respondent as Election Officer (“EO”).

(4)  At a face-to-face briefing meeting, the EO explained to the Applicant and his fellow candidates the regulations relating to the Election.

(5)  The Applicant deliberately chose to act in breach of those regulations as explained, by promoting himself through unapproved or unofficial channels.

(6)  The EO considered that the breach caused irreversible unfairness, such that she should exercise her power to disqualify the Applicant as a candidate for the Election (“EO Decision”).

(7)  The Applicant’s subsequent complaint against the EO was held by the 2^nd Putative Respondent (“Council”) to be not substantiated (“Council Decision”).

3.  By his Form 86 dated 11 March 2025, the Applicant sought leave to apply for judicial review so as to challenge the EO Decision and the Council Decision – and thereby to challenge the Election results. The two elected candidates in the Council’s Election and the Court’s and Senate’s Election respectively were named as putative interested parties.

4.  I gave directions to bring the matter to a rolled-up hearing, fixed for 13 June 2025. At that hearing: the Applicant was represented by Mr Jeffrey Tam, Mr Albert Wan, and Ms Yvonne Leung of Counsel; the EO and the Council were represented by Mr Mike Lui SC, leading Mr Jimmy Ma, Mr Keith Tam, Mr Alexander Burg and Mr Paul Chow of Counsel. With respect, it is difficult to see why the involvement of eight Counsel might ever be thought necessary or appropriate for this case.

5.  Neither putative interested party participated in the hearing, having been excused from attendance, though one of them (“Ray Du”) filed evidence in support of the EO and the Council.

6.  At the end of the hearing, I reserved my decision to be handed down later. This is my Judgment.

B.  The Regulations

7.  LU is governed by the Lingnan University Ordinance Cap 1165 (“Ordinance”) and the Lingnan University Statutes (“Statutes”). Under the Ordinance and the Statutes, there is a Court, a Council and a Senate.

8.  The composition of the Court is stipulated in section 9(1) of the Ordinance, with membership to include – see section 9(1)(h) – one full-time student elected by and from the undergraduate students in accordance with Statutes and appointed by the Council.

9.  The composition of the Council is stipulated in section 12(1) of the Ordinance, with membership to include – see section 12(1)(h) – one full-time student elected by and from the undergraduate students in accordance with Statutes and appointed by the Council.

10.  Section 18(3) of the Ordinance provides that membership and procedures of the Senate shall be in accordance with Statutes. The composition of the Senate is stipulated in paragraph 1 of Statute 2 of the Statutes to include one full-time undergraduate student and one full-time postgraduate student elected by and from the undergraduate and postgraduate students respectively in accordance with Statutes and appointed by the President.

11.  The Election to the Council and the Court is governed by Schedule 3 to Statute 5, headed ‘Regulations Governing the Election of Eligible Students from among themselves for Appointment to the Court or the Council’ (“Regulations”). It may be noted that the Regulations are fairly new, and the Election was the first time they were deployed or used.

12.  The Election to the Senate is governed by the Rules Governing the ‘Election of Eligible Students from among themselves for Appointment to the Senate’ (“Rules”).

13.  Material for present purposes are the following provisions of the Regulations:

4. Election Officer and Returning Officers

4.1 The Registrar shall be the Election Officer for elections to the Court or the Council and may be assisted by the Office of Student Affairs, and, unless otherwise stated, shall be responsible for the interpretation and enforcement of these Regulations and for the proper conduct of the elections in a fair and just manner.

...

5. Timetable

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5.8 The normal polling period shall be 2 days.

5.9 Complaints may be lodged against the whole or part of the election not later than 2 days after the announcement of election results.

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7. General Notification of Election

7.1 On the date of the announcement of election by the Council, the Election Officer shall issue to each elector a copy of the announcement stating:

(a) the reason for the election;

(b) the period of office as determined by the Counsel;

(c) the timetable for specific stages of the election (i.e., nominations, voting, announcement of results, complaints (if any) and confirmation of results); and

(d) the format of the election (i.e., in person, by the electronic voting system, or by hybrid mode of both in person and by the electronic voting system) as determined by the Council.

7.2 The Election Officer shall on the date of the announcement of election by the Council, announced that each nominee may:

(a) submit for publication such autobiographical details as deemed appropriate by the Election Officer; and

(b) where the Council considers appropriate, organise an election forum for the purpose of addressing the electors and answering their questions.

7.3 The Election Officer shall on the date of the announcement of election by the Council, place a copy of the announcement of election, together with a copy of these Regulations, and the University’s guidelines and procedures for electronic voting (if applicable) on the University notice-boards and at the election and announcement section of the University website (the URL/link of which shall be made available on the announcement of election).

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12. Confirmation of Results

12.1 Any complaint concerning the whole or part of the election shall be lodged with the Election Officer within 2 days after the announcement of election in accordance with paragraph 5.9. Except in the case of a complaint against himself/herself, the Election Officer shall investigate the complaint and his/her decision on the matter shall be final.

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12.5 Any complaint against the Election Officer shall be directly lodged with the Council within 2 days after the announcement of election in accordance with paragraph 5.9 which shall appoint two of its members to investigate the matter. The investigation shall be conducted as soon as possible. The Council’s decision on such matters shall be final.

12.6 The following decisions are considered as final on complaints concerning the whole or part of the election concerned:

(a) when it is found that complaints other than those against himself/herself are not substantiated the Election Officer shall rule that the election results already announced as confirmed;

(b) when it is found that complaints are substantiated, the Election Officer or the Council, depending on the circumstances, may choose the following courses of action without an obligation to reveal the reasons for such:

(i) the candidate against whom the complaint has been received and founts of substantiated be disqualified, and the person who has received the next highest number of valid votes be declared elected instead;

(ii) that the polling of the concerned election be declared null and void and that a new polling exercised be arranged as soon as possible;

(iii) that the whole election concerned be declared null and void, and that a new election be conducted as soon as possible; or

(iv) that any other course of action deemed appropriate be undertaken.

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14.  Though I have set out the material provisions in a way which gives them some context, the main focus of the argument on this application has been by reference to the provisions in Regulations 4.1 and 7.2.

15.  Though the undergraduate and postgraduate candidate election processes are materially similar, the Applicant stood as an undergraduate candidate for election, and there is no need to consider the position as regards postgraduate candidates.

C.  Further Background Facts

16.  On 7 October 2024, the EO sent an email to all full-time undergraduate students notifying them that LU was inviting eligible students to be elected to serve on the Court or the Council (i.e. the Election). The email attached a ‘Notification of the Election of Eligible Students from among themselves for Appointment to the Court or the Council’ (“Notification”).

17.  The Notification was issued pursuant to Regulation 7.1. It explained, amongst other things, the period of office of the elected members as determined by the Council would be one year, the timetable in respect of the Election, that the Registrar would be the EO responsible for the interpretation and enforcement of the Regulations and for the proper conduct of the elections in a fair and just manner. Pursuant to Regulation 7.2, paragraph 7 of the Notification stated that:

Each nominee may submit for publication such autobiographical details as deemed appropriate by the Election Officer, and/or may organise an election forum (when the Council considers it appropriate) to address the electors and answer their questions. Upon receiving the autobiographical details on or before Monday, 11 November 2024, we will dispatch these to the electors concerned by posting them on the election website before the polling days.

18.  On 18 October 2024, the Applicant submitted his Nomination and Declaration Forms for the Election. He was subsequently confirmed to be eligible for election.

19.  On 28 October 2024, two separate emails were sent by the EO to full-time undergraduate students declaring that the election polls for the Election relating to the Council and the Court would be conducted on 14 and 15 November 2024 (i.e. the 2 day polling period). There was a link in each of the emails to an Announcement of Polling, and each listed the relevant eligible candidates. Both Announcements contained the following paragraph 3:

Autobiographical details submitted to the Election Officer by 11 November 2024 will be published on the election website (http://www.ln.edu.hk/reg/student-election). Electors should read each candidate’s information before voting on polling days.

20.  On 29 October 2024, the EO sent emails to all eligible undergraduate student candidates in the Election for the Council and the Court – including the Applicant – informing them that (bold in original):

It has been announced that you are eligible to stand for the election to serve in the [Council/Court]. To support your candidacy in the election,

1)  you may submit a passport-style photograph and a concise autobiographical description for publishing on or before 11 November 2024 (Monday) (preferably in a Word document not exceeding two A4 pages) by emailing to registry@LN.edu.hk. Your information, including the photo provided, will be posted on the election website;

2)  an election forum to address the electors and answer their questions may be organised if the Council considers it appropriate.

Please send a request to organise an election forum to registry@LN.edu.hk no later than 5:00 pm on 30 October 2024 (Wednesday). Late requests will not be entertained.

21.  By an email dated 30 October 2024, the Applicant requested an election forum to be held, and he made an inquiry about election promotion. He stated that he was going to set up social media accounts for promotion, so wished to know about the procedures or regulations for promotion, especially on the submission of promotional materials and captions for the posts on social media.

22.  The EO made internal enquiries relating to the organisation of an election forum, and the Applicant’s enquiries about promotion. From the internal emails, it is clear that the Council Chairman was of the view, as was informed to the EO, that there was no mention in the Regulations of any campaigning activities to be conducted apart from the publication of the nominee’s autobiographical details and the organisation of an election forum.

23.  By an email dated 31 October 2024, the student candidates (including the Applicant) were informed by the EO that the Council had approved a student election forum for them to address the electors’ questions, and that it would be held on 11 November 2024. The candidates were invited to a briefing session on 4 November 2024.

24.  The briefing session was duly held on 4 November 2024, attended by all student candidates, the EO and various other members of LU administrative staff. During the briefing session, the EO informed the student candidates about the official platforms through which they would be allowed to promote themselves to the electors, namely by submitting the autobiographical descriptions to be posted on the election website, and by participating in the election forum. Though apparently not so defined or described at the time, those channels for promotion have since been termed the “Authorised Promotion Channels”.

25.  At some point in the briefing session, the Applicant questioned whether the student candidates could use additional means to promote their platforms, such as posters and personal social media accounts, other than or in addition to the Authorised Promotion Channels. The EO says she made it clear that, other than through the Authorised Promotion Channels, student candidates could not promote themselves as candidates in the Election on campus. In response to the Applicant’s question whether he could promote himself on his Instagram account, the EO said that if he posted privately on the Instagram account, she would not be able to police it. But if his promotional materials were made public and any complaint was made by any other student candidate, she would have the obligation to investigate and deal with the complaint in accordance with the Regulations.

26.  At the briefing session, all student candidates were given a copy of the election forum regulations, and they were “walked through” them with an explanation of the important details.

27.  On 5 November 2024, LU received an inquiry from a media platform known as ‘The Voice’, enquiring about “the University banning the Students’ Union conducting any publicities on the election”. The EO sent a reply that there were only two official platforms for student candidates to promote themselves to the electors, and that beside those two official platforms, they could not promote themselves on campus, and if they were to promote themselves outside campus or on platforms other than those two official platforms and when complaints were received, they would be investigated so as to ensure all candidates were treated fairly and equally.

28.  The Voice published an article on 5 November 2024, which amongst other things noted that the Applicant had given an interview, in which he had stated that LU had required the student candidates not to put up posters with their names on campus, not to distribute flyers, and not to create new social media accounts for promotion. The article also stated that the Applicant had suggested that it had not been made clear at the briefing session whether promotion via platforms other than the Authorised Promotion Channels were prohibited or only “recommended” against. But the Applicant also had apparently stated that he felt the lack of opportunities for candidates to engage with voters could impact voter turnout, resulting in lower participation, which would be detrimental to the candidates. On balance, the content of the article shows that the Applicant fully understood what he had been told he could and could not do by way of election promotion (though he had a concern about the consequences).

29.  On 6 November 2024, one of the candidates, being Ray Du (who had left the briefing session early), emailed the EO to ask questions on the requirement about promotion only through the Authorised Promotion Channels. In response by email the following day, the EO explained that there were only two official platforms for promotion by candidates.

30.  On and after 7 November 2024, the Registry received information and complaints that the Applicant had used his social media account (on Instagram) to promote his candidacy in the Election.

31.  On 11 November 2024, the election forum was held as scheduled, with all candidates participating, and without complaint.

32.  On 12 November 2024, the EO was informed that the Applicant had apparently put up various posters on campus promoting his candidacy in the Election. The posters appeared to have been prepared by the Applicant himself, because they were similar in style and content to those posts on his Instagram account.

33.  In the early hours of 13 November 2024, Ray Du sent emails to the EO to make a formal complaint about the Applicant’s promotion of his candidacy other than through the Authorised Promotion Channels. Ray Du stated that he and other student candidates felt aggrieved by the Applicant’s unfair conduct, in putting up posters and the use of the Instagram account to promote the Applicant’s candidacy in the Election.

34.  The EO formed the opinion that it was only appropriate in discharging her duty imposed under Regulation 4.1, and only fair to the other student candidates, to disqualify the Applicant as a candidate in the Election because of the unfair and irreversible advantage which he had obtained over other candidates, in circumstances where the conduct was aggravated by the fact that the Applicant knew what the rules were and simply ignored them without respect for the Election and his fellow candidates. As she subsequently explained her stance to the Council, the EO considered there was nothing objectionable for the Election to be regulated by a fixed set of rules which all candidates should comply with to ensure fairness, and the requirement about promotion of candidacy was simply a manifestation of such elementary rule. When the Applicant breached the Regulations, he knew he would, and as a result did, obtain an unfair advantage over other candidates. The only correct action to take was to disqualify him.

35.  By email timed at 9:22 am on 13 November 2024, the EO requested the Applicant to attend a face-to-face meeting at 11:45 am. The email did not give any indication as to the purpose of the meeting.

36.  The meeting took place between the Applicant and the EO, with two other administrative staff present. The Applicant was informed that he had violated the Regulations by promoting himself on Instagram and putting up posters around campus. The Applicant did not deny doing those things, but simply retorted – the EO says nonchalantly – that he did not mind taking down the posters, and he would just take them down. The EO says that it was clear to her that the Applicant admitted that he had done something which was improper and inappropriate in violation of the Regulations, and did not protest.

37.  It is clear from the evidence that the meeting on 13 November 2024 was not intended by the EO so as to provide the Applicant with an opportunity to make representations as to what decision the EO might make. Rather, the meeting was called by the EO so that she could inform the Applicant of the decision which she had already taken, i.e. the EO Decision. As the EO put it in her representations made to the Investigation Panel (see below), the purpose of the meeting was only to notify the Applicant of the decision to disqualify him, and was not meant to be a hearing or forum requiring him to defend himself.

38.  Following that meeting, the EO sent an email to all undergraduate student electors to inform them (among other things) that she had made the decision that the Applicant was immediately disqualified for promoting himself through unofficial channels, violating the Regulations, and so as to ensure the fairness of the Election.

39.  On 14 November 2024, another student made a complaint about another student candidate, Mr SH Law, alleging that he had promoted his candidacy via means other than the Authorised Promotion Channels. The EO did not think that Mr SH Law had violated the Regulations, because his Instagram account was private and his posts concerning his candidacy in the Election were not openly/publicly accessible.

40.  On 19 November 2024, the Applicant made a formal Complaint to the Council against the EO, pursuant to Regulation 5.9 and Regulation 12.5, in respect of the EO Decision to disqualify his candidacy. The basis of his complaint was three-fold: that the EO had acted ultra vires, unreasonably and in breach of the requirements of procedural fairness.

41.  The Council appointed two of its members to investigate the matter. Representations were made by the Applicant and the EO to the Investigating Panel (and I note that was not on a timetable as tight as the Applicant would have wished) and taken into account. The Investigation Panel provided its Report on 18 February 2025. Amongst other things, the Report made the following points:

(1)  The Applicant did not dispute that the EO had informed all candidates on 4 November 2024 that they may only promote themselves by submitting their autobiographical descriptions for publication on the election website, and participating in the election forum, but not via other means.

(2)  The Applicant suggested that that information was “vague”, although he admitted that the EO did suggest candidates not to use any public platform to promote themselves.

(3)  Regulation 7.2 clearly conferred power on the EO to scrutinise election-related promotional materials, where restrictions on election advertisements are common.

(4)  There is no vagueness in being told “not use any public platform to promote”.

(5)  The EO investigated the complaints that the Applicant had unfairly promoted himself, and decided that the complaints were substantiated, and use the power to disqualify him.

(6)  Further, Regulation 4.1 made the EO responsible for the interpretation and enforcement of the Regulations and for the proper conduct of the elections in a fair and just manner.

(7)  Contrary to the mandate given by the EO, the Applicant promoted himself by other means, thus obtaining an irreversible advantage which was unfair and unjust to candidates who had adhered to the rules.

(8)  The Applicant did not deny his breaches of the mandate, at the meeting on 13 November 2024 (which was not meant to be a hearing or forum). There was no procedural unfairness.

(9)  Disqualifying the Applicant was fair and just.

(10)  The other complaint about Mr SH Law need not be discussed, as he had not been successfully elected and so that case was academic.

(11)  In conclusion, the complaint against the EO was unfounded.

(12)  But, in passing, it could be observed that there was room for improvement in terms of communication between the parties, such as on the issue of the Authorised Promotion Channels.

42.  At its meeting on 24 February 2025, the Council considered the Report and decided that the Applicant’s complaint against the EO was not substantiated, i.e. the Council Decision.

43.  On or shortly after 24 February 2025, the 1^st and 2^nd Putative Respondents were appointed as student members of the Council and Court respectively.

D.  Grounds of Review

44.  In his Form 86, the Applicant advanced six intended Grounds of Review, as follows:

(1)  Ground 1: Procedural Impropriety – violation of right to be heard/insufficient inquiry;

(2)  Ground 2: Illegality – ultra vires;

(3)  Ground 3: Illegality – misinterpretation/misapplication of regulations or policies;

(4)  Ground 4: Illegality – disproportionate restriction of freedom of expression;

(5)  Ground 5: Illegality – failure to take into account relevant considerations;

(6)  Ground 6: Irrationality/Wednesbury unreasonableness.

45.  Notwithstanding these six different intended Grounds of Review, it seems to me that the central question underpinning the intended judicial review challenge turns on the proper interpretation of construction of the Regulations, and in particular Regulations 4.1 and 7.2.

46.  For that reason, it seems to me apt to address Grounds 2 and 3 first (dealing with them together, as did Mr Tam), before addressing the other Grounds.

E.  Timing of Challenge and Amenability

47.  Neither these issues of the timing of the application nor the amenability of the impugned decisions to judicial review are controversial. There was no argument on these points at the oral hearing, and I can deal with both matters briefly.

48.  From the chronology, I accept that the application was made promptly and in any event within three months (in fact two weeks) from the date of the Council’s Decision. I also accept that, in the circumstances, it was appropriate to have pursued a complaint against the EO to the Council, rather than immediately make an application for leave to apply for judicial review against the EO Decision. When a potential applicant for judicial review expeditiously seeks a reasonable way of resolving the issue without litigation, the Court will lean against penalising him for the passage of time and will where appropriate and large time if the alternative expedient fails.

49.  Were any extension of time necessary for the short period of delay (27 days) beyond the three months following the date of the EO Decision necessary, I would in the exercise of my discretion grant it.

50.  The Court, the Council and the Senate are the advisory, executive and academic bodies of LU. The sources of their powers are to be found in the Ordinance and in the Statutes, which are public in nature. The impugned decisions are amenable to judicial review.

F.  Grounds 2 and 3: Illegality – Ultra Vires – Misinterpretation or Misapplication of the Regulations

51.  These Grounds raise the issue as to the proper interpretation or construction of the Regulations. Though I will focus on that question under this heading, I do not lose sight of the fact that questions regarding interpretation must be seen in the proper context, and with a view as to the proper purpose, of the provision under scrutiny. I also keep in mind that any interpretation process is iterative and dynamic.

52.  As indicated above, the core parts of the Regulations relevant to the current case are Regulations 4.1 and 7.2. For convenience, they can be set out again here:

4.1 The Registrar shall be the Election Officer for elections to the Court or the Council and may be assisted by the Office of Student Affairs, and, unless otherwise stated, shall be responsible for the interpretation and enforcement of these Regulations and for the proper conduct of the elections in a fair and just manner.

7.2 The Election Officer shall on the date of the announcement of election by the Council, announced that each nominee may:

(a) submit for publication such autobiographical details as deemed appropriate by the Election Officer; and

(b) where the Council considers appropriate, organise an election forum for the purpose of addressing the electors and answering their questions.

53.  Taking the argument on both Grounds together, Mr Tam submitted that the impugned Decisions are ultra vires, in that the EO and the Council misinterpreted (or amended) the Regulations, to the effect that the Regulations prohibit candidates from promoting themselves through “unofficial channels”. The amendment argument is an alternative to the primary misinterpretation argument.

54.  Before turning to the development of that argument, and Mr Lui’s response to it, it may be appropriate to note that I have had regard to some authorities and principles which (although first advanced in relation to Ground 1) were relied upon by Mr Tam as providing the appropriate context for this case.

55.  As to Grounds 2 and 3 themselves, Mr Tam submitted that:

(1)  No part of the Regulations prohibits a candidate from promoting himself or herself publicly, nor specifically providing “official channels” must be used for promotion purpose.

(2)  Whilst the EO claimed that the Regulations prescribe what has been termed the Authorised Promotion Channels, Regulation 7.2 properly interpreted does not provide that other modes of promotion are prohibited.

(3)  It says what candidates can do, and does not say what they cannot.

(4)  That is consistent with the purpose of having an open election.

(5)  Put shortly, Regulation 7.2 says what each nominee “may” do, and “may” does not mean and is not equal to “may only”.

(6)  It is obvious that Regulation 7.2(a) concerns the content of the autobiographical details, but not the venue or mode of publication or promotion.

(7)  Hence, in this case, where the promotional materials posted by the Applicant on Instagram and on posters put up around campus was substantially similar to the promotional materials posted on the Authorised Promotion Channels, there was no contravention of the Regulations.

(8)  Regulation 4.1 does not empower the EO to interpret the Regulations in a way as would afford them a meaning which they cannot bear.

(9)  The true meaning and effect of the Regulations as a matter for the Court to decide.

56.  Mr Tam recognised that there might be a factual dispute as to what was said at the briefing meeting, but the Court need not resolve any such dispute in determining the real issue, because the EO has no power to make or amend the Regulations by simply informing the candidates in a briefing session. Hence, he submitted, at least public social media and posters must be allowed.

57.  Mr Tam acknowledged that there must be fairness in any electoral process, but he submitted that fairness does not of itself lead to the suggested “may only” construction. On the contrary, he submitted, fairness is promoted by transparency and the greater provision of information to the electorate from or about candidates.

58.  In response, Mr Lui placed reliance on the expression unius principle, as explained in ‘Bennion, Bailey and Norbury on Statutory Interpretation’ 8^th Ed at §23.12 as follows:

(1)  Where a statute mentions one or more things, by implication it excludes other things of the same kind.

(2)  This principle is often expressed in the Latin maxim expressio unius est exclusio alterius (to express one thing is to exclude another).

(3)  It applies in particular where a general formula is accompanied by words of extension or exception meaning only some members of that class. The remaining members of the class are taken to be excluded from these words.

(4)  There is no room for the application of this principle where some other reason other than the intention to exclude certain things exists for mentioning some but not others.

59.  Mr Lui also submitted that:

(1)  Regulations 4.1 and 7.2 should be properly interpreted together as a purposive unit.

(2)  The word “may” in Regulation 7.2 should mean “may only”, because sub-paragraphs (a) and (b) stipulate the exclusive list of promotion channels.

(3)  This is in line with the expressio unius maxim, where there is no reason to mention only some of the possible items unless it is intended that those are the only ones to be dealt with, to the exclusion of others.

(4)  The mentioning of the specific means of providing information is consistent with the requirement for there to be fairness in the conduct of the elections under the Regulations.

(5)  A “non-exclusive” construction of Regulation 7.2 would make it nugatory, where it is obvious from the language that one of the purposes or objectives of Regulation 7.2(a) and (b) is to ensure oversight over the promotional activities by candidates.

(6)  The intention would not be implemented, or would be defeated, if Regulation 7.2 were somehow to be interpreted to mean that the candidates are free to promote their candidacies in any other manner, or with any other content, as they might desire – without knowledge or oversight by the EO or Council.

(7)  Further, a “non-exhaustive” interpretation of Regulation 7.2 would make it impossible for the EO to discharge the duty imposed by Regulation 4.1.

(8)  There is also no credible evidence produced to support any subjective view (as expressed by the Applicant) that the Authorised Promotion Channels were not effective, or could not be effective, in promoting the candidacies to the undergraduate student electorate in LU.

60.  I shall consider what is the proper interpretation of the Regulations by reference to the following broad propositions, relevant to most electoral processes. First, it can be accepted that some interference with a candidate’s exercise of the right to free expression can appropriately be prescribed by law, with the legitimate aim of protecting the rights of others (their democratic rights). Secondly, it is highly desirable that a level playing field of debate and the provision of information should be achieved, so far as practicable. This helps to ensure fairness not just to the candidates but also to the electorate. However, this may not be achieved if individual candidates can, in proportion to their resources, make more use than others of advertising and media promotion. As has been said elsewhere, it is not advantageous to the democratic process for it to become little more than an auction.

61.  I also take into account the specific electoral process involved in this case. With no disrespect to that process and the persons involved in it, the election by and from amongst undergraduate students of one of them to sit on certain advisory or governing bodies of their university is at or close to the other end of the scale from the most important of elections. Again without disrespect, it is not equivalent to any form of election of public official or representative. The election of a student to the Council or Court or Senate is not – and need not be treated like – a political contest (at least not with a capital P). There is simply no need for any complicated or widespread campaigning activities which might require or justify undue levels of administration and supervision or oversight.

62.  It seems to me to be perfectly natural and appropriate for the Regulations to have been drawn up and promulgated on that basis. It is not unfair that, whilst the Regulations endeavour to cater for and foresee various actual or potential aspects of any electoral process, they can do so on a relatively simple approach.

63.  There is plenty of room for thinking that it is perfectly sufficient – at a practical level, and as a matter of fairness – for the body of undergraduate students forming the electorate (a) to know the autobiographical details of candidates (as checked and deemed appropriate by the EO), and (b) to participate in an election forum to hear from and pose questions to the candidates (if the Council considers that appropriate). It is also perfectly sufficient and fair for all concerned for each candidate to be limited to the same means of providing appropriate information to the members of the electorate to allow them to choose between candidates (if they are even interested to vote).

64.  The first part of Regulation 7.2 identifies the obligation placed on the EO to announce what each nominee may do (and to make that announcement at the same time as the announcement of the election). That there is a requirement for a specific announcement, of itself, seems to me to identify that the subsequent matters are intended to place a limit on what the candidate may do. If candidates can do anything they like to promote their own candidacy, the need for a specific announcement as to what each might do seems rather less.

65.  Similarly, Regulation 7.2(a) read in context makes clear that the autobiographical details which will be published are those which will be published on the election website, which is why the candidate is required to submit them to the person who checks them and arranges that publication. It is also why the EO notifies every undergraduate student of the link to the election website. Therefore, I do not accept that Regulation 7.2(a) does not concern the venue or mode of the publication of a candidate’s autobiographical details.

66.  Further, Regulation 7.2(b) identifies the intended further control over what candidates may do. They cannot organise an election forum, unless the Council considers it appropriate. That at least strongly suggests that candidates cannot do things in any other way “for the purpose of addressing the electors”.

67.  In short, Regulation 7.2 permits each candidate to proceed on the basis that he or she, and every other candidate alike, may (a) identify or describe himself or herself with appropriate autobiographical details and (b) where appropriate, address the electors at an electoral forum, where he or she can also answer the electors’ questions. Both are performed with a degree of oversight, again suggesting that promotion without oversight or control is not envisaged.

68.  The contextual and purposive construction I have identified (1) is proportionate to the nature of the election, (2) preserves the integrity of the electoral process, (3) keeps the playing field level between candidates, and (4) provides sufficient information to the electors for them to be able to make an appropriately informed choice as to which candidate (if any) should receive their support.

69.  It is also important to keep firmly in mind that the powers under Regulation 7.2 are to be exercised in accordance with Regulation 4.1 which requires the EO to interpret and enforce the Regulations for the purpose of the proper conduct of the elections in a fair and just manner. It is better to construe the provisions in such a way as would further implementation of, rather than risk defeating, the stated purpose.

70.  In order to identify the proper interpretation of the Regulations, it is unnecessary to engage in any discussion about a distinction between public and private promotion. In part to explain the alleged difference of approach between the Applicant and Mr SH Law, Mr Lui suggested in submission that there is a logical distinction between public promotion and private promotion, and that what is intended by Regulation 7.2 is to draw that distinction. With respect, I disagree, and I think the distinction is potentially unhelpful.

71.  Rather, what I think the EO has explained in her evidence – and what she has described as what she said at the briefing meeting – is that Regulation 7.2 permits of the two forms of provision of information by candidates (namely through the autobiographical details on the election website, and through the presentation and answering questions at any approved election forum). When asked about social media, the EO simply made what might be thought to be the obvious comment that she could not practically give oversight to matters dealt with privately, but if anyone were to bring such matters to her attention and complain about them, she would have to investigate whether there has been any breach. The EO asked candidates not to use social media, but recognised that if it were to occur without her knowledge, there might be little she could do about it.

72.  That seems to me to be analogous to a situation where a candidate might be expected orally to ask friends and acquaintances to vote for him or her, in conversations where the EO would not expect to be present and of which she would not expect to be told. But if she were told about matters which gave rise to a complaint, then she would be in a position to investigate. In days of yore, people (even young people and students) communicated face-to-face in oral conversation. Even if the modern practice is not to do that, but to communicate via social media, the situation is much the same – save that it is much easier to give widespread passing on of information via social media (such that any unfairness might be spread wider and reinforced).

73.  Therefore, the distinction is not really between public and private as such; it is between what the Regulation expressly permits, and everything else – between where the EO could be expected to have knowledge and oversight, and where she could not.

74.  In conclusion, I agree with the EO’s interpretation of the Regulations.

75.  In any event, as noted, the EO is empowered and required under Regulation 4.1 to interpret and enforce the Regulations as a whole. Whilst that does not mean that the EO can reach an interpretation which the wording of the Regulations cannot bear, it does mean that some appropriate deference might be afforded to the EO’s interpretation. The EO’s interpretation is at a minimum a perfectly reasonable and intellectually possible interpretation.

76.  For the avoidance of doubt, obviously I do not think the EO somehow amended the Regulations, or otherwise acted ultra vires.

77.  Lastly, it can be said that if the Applicant felt that he had been given an order or instruction not to do something, where that was improper on the interpretation of the Regulations, he ought to have raised the matter so as to have had it fully resolved prior to taking steps which he knew he had been told not to take. Instead, he simply disobeyed the instructions, apparently on the basis that he either did not like them or felt that they were unnecessary or improper in the electoral process with which he was engaged. That was at least foolish. It is no answer to suggest that the posters and social media promotion contents were substantially similar to the content of the publication on the election website.

78.  Grounds 2 and 3 fail.

G.  Ground 1: Procedural Impropriety – Right to be Heard

79.  Mr Tam sought to place emphasis that this Ground 1, which asserts a procedural impropriety arising from the denial of the Applicant’s right to be heard prior to the EO making the EO Decision, arises in the context of an election.

80.  I think it can be acknowledged that the right to stand for election in accordance with law is an important fundamental right, and the right to be heard is an important procedural right under the rules of natural justice going directly to the question of fairness. Hence, reaching a decision as important as disqualifying a candidate from an election, without affording that candidate an opportunity to be heard at all can be an extremely serious matter. This is because it affects not only that person’s rights, but also the integrity of the election process as a whole, and the appropriate public confidence in it: see Lau Siu Lai v Kwok Wai Fun Franco (Returning Officer) (2020) 23 HKCFAR 338 at §13.

81.  However, at §12 of the same decision, the CFA quoted from §§25-26 of Chow J’s first instance decision in the same case, and approved his approach to the question of the “materiality” of the irregularity. In determining the “materiality” of the irregularity in any case, it is important to bear in mind the nature of the right affected by the impugned decision, and the importance of the principles of natural justice or procedural fairness. In those circumstances, 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. Where unfairness of the situation is obvious, the Court should be slow in sanctioning an unfair practice, and these matters may well override the consideration of whether the impugned decision was, strictly speaking, correct or incorrect.

82.  Chow J emphasised a similar point in Chow Ting v Teng Yu Yan Anne (Returning Officer) [2019] HKCFI 2135 at §42. Similarly in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653, the Court of Appeal held that it would be rare that someone who was denied the opportunity to be heard would be held not to have been treated unfairly.

83.  But it is also trite that there is no universal rule of natural justice, and what is or is not fair depends on the particular circumstances of each case. I also accept Mr Lui’s caveat to the principles relied on by Mr Tam, namely that a procedure adopted can only properly be stigmatised as procedurally improper if there is a real risk of injustice. It is insufficient merely to allege that some other procedure than the one which was adopted might would have been better or more fair. It can also be relevant, when assessing whether there is a real risk of injustice having been caused, to see whether the same decision would have been made even had the alleged impropriety not occurred.

84.  On the facts traversed above, it is clear that the Applicant was not told the purpose or nature of the meeting on 13 November 2024, before it began. Mr Tam says that the Applicant was not informed of the allegations against him, nor provided with the adverse materials that the EO would consider, and as a result the Applicant did not know about those adverse materials or allegations and was unable to make any meaningful and focused representations during the meeting.

85.  I accept (see also above) that the purpose of the meeting called by the EO was simply to notify the Applicant of the decision already made to disqualify him from the Election. As the EO has said, the meeting was not meant to be a hearing or forum requiring the Applicant to defend himself. On the other hand, the Applicant was plainly told of the facts being relied upon by the EO in support of her decision. She relied on the materials which emanated from the Applicant himself, and this is not a case where the Applicant was unaware of materials because they were generated by a third party.

86.  The Applicant was also clearly aware of why he faced disqualification. As he accepted, he was aware of the substance of the complaints, namely that he promoted himself via unofficial channels. He did not challenge the factual matters put to him, no doubt because he knew them to be true. Rather, he in effect admitted the violations and offered to rectify the situation.

87.  The matter can also be tested against what the Applicant says he would have explained, had he been given an opportunity to be heard. That is set out in his Form 86 at §85, which is in summary:

(1)  The Applicant was not aware of nor informed of any amendment of the Regulations.

(2)  To the best of his knowledge, all similar elections in other universities in Hong Kong allow candidates to openly promote themselves.

(3)  Due to the lack of openness of the election, the Applicant only used what he felt were correct methods to promote himself, so that more students could be exposed to information about the Election. If students do not understand the candidates’ profiles and platforms at all, it will be difficult to vote in a way fair to all candidates.

(4)  The Applicant’s impugned promotional materials carried identical or substantially similar content to his official platform, which was not determined as inappropriate.

(5)  The Applicant was interviewed by ‘The Voice’ to comment on LU’s ban on candidates from promotion on campus in the Election. He pointed out that this ban deprived candidates of opportunities to contact voters, or affected voters’ intention to vote, while low turnout is not conducive to candidates. He did not accept the interview for the purpose of publicity, nor did it involve any content to promote himself.

88.  In response to those points, Mr Lui submitted:

(1)  There was no amendment of the Regulations.

(2)  The rules for elections and other universities are not relevant.

(3)  The Applicant’s subjective views on the merits of the restriction are irrelevant – though his views show that he admits the violations in question.

(4)  The content of the Applicant’s promotional materials on the unauthorised channels is irrelevant, as Regulation 7.2 imposes restrictions on the mode of promotion.

(5)  Again, the article demonstrates that the Applicant was aware of the “ban”, but deliberately chose to act contrary to it, because he thought that to be a better course of action.

89.  I accept those submissions. However, the real point seems to me to be that all of these offered explanations essentially lead back to the EO’s interpretation of Regulations 4.1 and 7.2. It is perfectly clear that there was no material factual dispute, and that what the Applicant subjectively thought should have been the rules is irrelevant. It is also perfectly clear that, had the Applicant engaged in an argument seeking to persuade the EO to a different interpretation of the Regulations, the EO would have reached the same conclusion. Indeed, even in the face of the arguments put forward in the Form 86, the EO has maintained the same conclusion in her evidence filed in response to the Form 86.

90.  Put another way, if the interpretation put forward on behalf of the Applicant is correct, it does not matter that there may have been any procedural failure to allow him to put forward that argument at the meeting on 13 November 2024. If, on the other hand, the interpretation put forward on behalf of the Applicant is incorrect, there was no risk of unfairness or injustice from his having been deprived of running that argument at the meeting.

91.  I also accept that there was some degree of urgency in making the EO a decision, though that seems to me to be of rather less importance to the relevant analysis on Ground 1.

92.  Therefore, there was no procedural impropriety or failure, or none which caused any arguable risk of injustice in the particular circumstances of the case.

93.  Ground 1 fails.

H.  Ground 4: Illegality – Disproportionate Restriction of Freedom of Expression

94.  The Applicant argues that the EO Decision and the Council Decision disproportionately restricted his freedom of expression. This was because he was disqualified for promoting himself through unofficial channels, which engages the freedom of expression.

95.  Of course, it must be correct that freedom of expression is intrinsically and instrumentally important. As Mr Tam submits, the free flow of information and ideas informed political debate. There is also a public interest as far as advertising is concerned, which lies in the provision of relevant material to enable informed choices to be made.

96.  On the other hand, I have already accepted above that there no absolute right to freedom of expression, and certain restrictions can lawfully be imposed, not least where that is to protect and respect the rights of others. In this case, it was not just the Applicant’s rights which were engaged. The rights of his fellow candidates were also engaged. The rights of the electors were also engaged. The rights of the advisory and governing bodies of LU were also at least arguably engaged.

97.  Mr Tam’s reliance on the argument that a low election turnout rate is an indicator of the fair and effective working of the electoral system being maintained is, with respect, inapt to this case. First, there is no evidence about the turnout rate, or how it might have been affected one way or the other by the procedure adopted under the Regulations. There is certainly no evidence which could persuasively support an argument that turnout rate would have been much higher, but was lower because of the relatively compact forms of promotion permitted to the candidates (as opposed to, say, general apathy or lethargy or disinterest amongst undergraduate student electors).

98.  I also think that the submission that making more or even the same information more accessible to more members of the undergraduate student electorate would bring an overall improvement to the Election. For example, there is at least room for people to form the view that imposing significant extra administrative or supervisory/oversight time on university staff who have other things to do would not be an overall improvement.

99.  In any event, I accept Mr Lui’s submission that limiting the modes of the candidates’ promotion to the Authorised Promotion Channels was intended to ensure that all candidates would gain equal exposure to the electorate, and would prevent more resourceful candidates from obtaining an unfair advantage from unregulated promotion in terms of mode, intensity and extensive list of personal connections. Those are legitimate aims.

100.  Nor does it seem to matter whether the Court gives a wide or more narrow margin of discretion to this particular electoral regime under the Regulations. At whichever point of the sliding scale is applicable, there was no disproportionality in any restriction of freedom of expression.

101.  Ground 4 fails.

I.  Ground 5: Illegality – Council’s Failure to Consider Relevant Considerations

102.  Ground 5 seeks to impugn the Council Decision, on the argument that the Council did not consider the Applicant’s right to be heard before the EO Decision, the EO’s misinterpretation of the Regulations, as well as the disproportionate interference with the Applicant’s freedom of expression.

103.  As pointed out by Mr Lui, those are essentially the arguments advanced by the Applicant on is Grounds 1, 3 and 4. On the basis that those grounds have no merit, neither does Ground 5.

104.  Of course, it can also be noted that the Applicant ran these points in his complaint to the Council, even if the Investigation Panel and the Council did not expressly reference them in the Report or the Council Decision.

105.  However, Ground 5 fails.

J.  Ground 6: Irrationality/Wednesbury Unreasonableness

106.  Mr Tam argued that the EO Decision and the Council Decision were irrational because:

(1)  For the reasons given in Ground 1, the EO failed to discharge her Tameside duty of sufficient inquiry.

(2)  For the reasons given in Grounds 2 and 3, the EO and Council found the Applicant to have violated the election regulations by promoting himself through unofficial channels, when the Regulations and Rules do not have such restriction.

(3)  The Decisions are illogical and therefore lacking in rationality, because the same information could be conveyed to students by other means, and there is no reason or logic why that information cannot be made available to the students by a wider means of circulation.

(4)  Lastly, there was unjustified inconsistency between how the EO handle complaints against the Applicant and Mr SH Law.

107.  As can be seen, the first two points essentially rely again on Grounds 1, 2 and 3. As there is no merit in those grounds, those two points likewise have no merit.

108.  As to the third point, I agree with Mr Lui that this is ultimately a question of interpretation of the Regulations, in particular Regulation 7.2 read compatibly with and to give effect to Regulation 4.1. I see no arguable irrationality or illogicality.

109.  As to the fourth point, it has no substance. I have read and accept the EO’s explanation for the position taken by her. In essence, she considered the posts made by Mr SH Law were posted privately, of which she would have little control. In any event, the Applicant could not benefit from Mr SH Law also being disqualified (though might benefit if neither of them were disqualified). But, the point is academic where Mr SH Law came last in the election.

110.  Ground 6 is not reasonably arguable and fails.

K.  Result

111.  At the conclusion of a rolled-up hearing, it may not be of any particular interest as to whether leave to apply for judicial review is granted for any individual Ground, if ultimately no ground is successful. Nevertheless, I would accept that Ground 3 was reasonably arguable.

112.  However, in light of the remainder of my conclusions, the Applicant’s application for leave to apply for judicial review is dismissed.

113.  As to costs, I presently see why costs should not follow the event. So I would order the Applicant to pay the EO’s and Council’s costs, to be taxed if not agreed with certificate for (only) two Counsel. There will be no order as to costs as between the Applicant and the Putative Interested Parties. I make these orders on a nisi basis, but they will become absolute if no party makes a variation application within 14 days. Any such application will be dealt with by me on paper, in accordance with a timetable I would leave to the parties to agree.