MOK CHARLES PETER v. TAM WAI HO AND OTHERS

FAMV No. 3 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2010 (CIVIL)

(ON APPEAL FROM CACV NO. 115 OF 2009)

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FAMV No. 11of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2010 (CIVIL)

(ON APPEAL FROM CACV NO. 115 OF 2009)

Between :

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DETERMINATION

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Mr Justice Ribeiro PJ :

1. The applicant presented an election petition relating to the Information Technology Functional Constituency seat in the September 2008 Legislative Council elections.  On 9 April 2009, Reyes J[1]dismissed the petition and determined that a competing candidate was validly elected.

2. Section 67(3) of the Legislative Council Ordinance[2]provides that the Court’s determination as certified after trying an election petition “is final as to the matters at issue concerning the election petition”.  By virtue of section 14(3) of the High Court Ordinance,[3]no appeal lies from such an order. 

3. The Court of Appeal[4]held that it lacked jurisdiction to hear the appeal which the applicant lodged before it.  It rejected his argument, based on Solicitor v Law Society of Hong Kong and Secretary for Justice (Intervener),[5]that the finality provisions of section 67(3) are repugnant to Article 82 of the Basic Law by purporting to deny the Court of Final Appeal’s power of final adjudication. 

4. The applicant then applied to the Appeal Committee for leave to appeal from the judgment of Reyes J.  He did not seek leave to appeal from the Court of Appeal’s judgment. 

5. At the hearing before the Appeal Committee on 26 March 2010, the Respondent quite rightly pointed out that the Appeal Committee had no jurisdiction to hear the application since leave to appeal was not being sought against a judgment of the Court of Appeal, as catered for by section 22 of the Court’s statute.  Nor was it an appeal capable of being brought directly to the final Court from the Court of First Instance. 

6. The Appeal Committee adjourned the leave application to enable the applicant to seek leave to appeal from the Court of Appeal with a view to raising a constitutional question regarding the validity of the finality provisions in section 67(3).  That application was duly made to the Court of Appeal[6]and was refused.

7. The adjourned leave application and a fresh application for leave to appeal from the Court of Appeal’s judgment on the constitutional point have today come before this Committee.

8. We are satisfied that leave to appeal should be granted in respect of the following question which is of the requisite importance, namely:

“Are the provisions of section 67(3) of the Legislative Council Ordinance making the determination of the Court of First Instance as certified at the end of the trial of an election petition final inconsistent with Article 82 of the Basic Law and therefore unconstitutional?”

9. That question must be decided to establish whether the applicant can proceed beyond the Court of First Instance on his substantive appeal.  If the validity of the finality provisions is upheld, then Reyes J’s order will stand as final.  If, on the other hand, the Court should decide that the finality provisions are unconstitutional and therefore have to be struck down, the applicant would have to lodge his substantive appeal for hearing in the Court of Appeal pursuant to section 14(1) of the High Court Ordinance.  No basis would exist for the applicant to appeal directly to the Court of Final Appeal.  Accordingly, the original application for leave to appeal against Reyes J’s order must be dismissed. 

10. The order for dismissal of the application does not preclude a possible future application for leave to appeal against a decision of the Court of Appeal on the substantive election issues in the event that this Court’s decision on the constitutional question enables the applicant to proceed to an intermediate appeal.

11. We order the applicant to pay to the 1st respondent the costs of FAMV 3/2010 other than those already awarded against the applicant.  Such costs to be taxed if not agreed.   The appeal is fixed for hearing on 18 and 19 November 2010.

[1]        HCAL 141/2008.

[2]       Cap 542.

[3]       Cap 4.

[4]       [2010] 1 HKLRD 261.

[5]       [2003] 6 HKCFAR 570.

[6]       CACV 115/2009 (13 May 2010).