LEUNG TIN KEI EDWARD v. ELECTORAL AFFAIRS COMMISSION

AND

HCAL 134/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 134 OF 2016

(heard together)

 Application for Leave to Apply for Judicial Review

 NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1. Leave to apply for Judicial Review refused; and

2. Costs order nisi that there be no order as to costs.

Observations for the Applicants:

1.   The intended judicial reviews are not reasonably arguable with a realistic prospect of success for the following reasons:

(1)   For the same reasons set out at paragraphs 9 to 24 of the decision dated 27 July 2016 handed down by this court in these cases, the court would and should not entertain any judicial review seeking to challenge the legality of the decision of the EAC to require a LegCo election candidate to submit the Confirmation Form together with the Nomination Form, or the Returning Officer to take into account whether or not the candidate has submitted the Confirmation Form or not in determining the validity of his nomination.  A candidate aggrieved in this way could and should only challenge it by way of an election petition taken out after the holding of the relevant election.  Leave therefore should not be granted to apply for judicial review.

(2)   Further and in any event, this court has already decided in Chan Ho Tin v Lo Ying-Ki Alan [2018] 2 HKLRD 7at paragraphs 103 to 125 that (a) it is lawful for the EAC to ask a candidate to submit the Confirmation Form together with the Nomination Form on voluntary basis but not as a mandatory requirement, and (b) it is lawful for the Returning Officer to take that into account in determining the substantive validity of the nomination.  In the premises, the proposed grounds raised in these judicial reviews are in any event without merits and leave should not be granted.

2.   Given the general principle that the starting costs position of a failed contested leave application is no order as to costs, and after taking into account all the circumstances in the present cases, including the public importance of the subject matter and this was the very first time the EAC requested the candidates to submit the Confirmation Form, the proper costs order should be no order to costs. 

3.   This court therefore makes an order nisi that costs of these applications (including the costs of the hearing on 27 July 2016) be no order as to costs.

Dated the 7^th day of December 2018.

 

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

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