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HCAL 162/2016
[2018] HKCFI 345
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 162 OF 2016
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| BETWEEN |
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CHAN HO TIN |
Petitioner |
and |
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LO YING-KI ALAN |
1st Respondent |
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(Returning Officer for New Territories West Geographic Constituency) |
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CHU HOI DICK EDDIE |
2nd Respondent |
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TIEN MICHAEL PUK SUN |
3rd Respondent |
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CHAN HAN PAN |
4th Respondent |
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CHENG CHUNG TAI |
5th Respondent |
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LEUNG CHE CHEUNG |
6th Respondent |
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MAK MEI KUEN ALICE |
7th Respondent |
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KWOK KA KI |
8th Respondent |
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WAN SIU KIN ANDREW |
9th Respondent |
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HO KWAN YIU |
10th Respondent |
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| Before: Hon Au J in Court |
| Dates of Hearing: 9 - 11 May 2017 |
| Further Written Submissions: 17 and 19 May 2017 |
| Date of Judgment: 13 February 2018 |
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J U D G M E N T
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A. INTRODUCTION
1. Mr Chan Ho Tin is the convenor of the Hong Kong National Party (“HKNP”). The HKNP was established to, among others, advocate the independence of Hong Kong from the People’s Republic of China (“PRC”) and nullify the Basic Law.
2. He decided to seek nomination as a candidate to stand for election to be a member of the Legislative Council (“LegCo”) in the General Election for the New Territories West Geographical Constituency (“the NTWGC Election”), which was to be held on 4 September 2016.
3. On 18 July 2016, Mr Chan submitted his nomination form for the nomination as a candidate. As required by section 40(1)(b)(i) of the Legislative Council Ordinance (Cap 542) (“the LCO”), the signed nomination form included a declaration (“the Declaration”) that Mr Chan “will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.
4. However, on 30 July 2016, the Returning Officer, Mr Lo (“the RO”) (the 1st respondent herein) decided that Mr Chan’s nomination was invalid. The RO conveyed the written decision (“the Decision”) with reasons to Mr Chan by email. The RO in substance explained that, given Mr Chan’s stance in advocating Hong Kong’s independence from the PRC and the abolition of the Basic Law, he was satisfied that Mr Chan “does not in fact uphold or intend to uphold the Basic Law”. The RO therefore concluded that Mr Chan did not in fact make the Declaration in law that conformed with the requirement of section 40(1)(b)(i) of the LCO (“section 40(1)(b)(i)”) notwithstanding he had signed it.
5. The NTWGC Election was subsequently held on 4 September 2016, and the RO declared that the 2nd to 10th respondents herein to be elected.
6. Mr Chan filed this election petition on 9 September 2016.
7. In the petition, Mr Chan says the Decision to invalidate his nomination is unlawful and amounted to various material irregularities to the election. He therefore asks the court to declare that the NTWGC Election result is void because of the irregularities and that the 2nd to 10th respondents were not duly elected.
8. Mr Chan is represented by Ms Gladys Li SC, leading Mr Azan Marwah and Mr Randy Shek at this hearing.
9. The RO, represented by Mr Benjamin Yu SC (together with Mr Johnny Mok SC, Mr Abraham Chan and Mr Jenkin Suen), opposes the election petition. All the other respondents remain neutral and do not appear at the hearing, except Mr Ho (the 10th respondent, who is represented by Mr Sunny Chan). Mr Ho’s attendance was only to the extent of seeking to file an affirmation of Mr Ho to introduce certain newspaper reports effectively to support the RO’s position. Ms Li opposes the filing of this affirmation, but agrees to have it referred to on de bene esse basis for the purpose of the hearing.
10. Before looking at the arguments raised in this petition, it is important to set out the largely undisputed relevant facts leading to the petition to put the matter in proper context.
B. THE RELEVANT FACTS
11. Mr Chan was born in Hong Kong and graduated from the Hong Kong Polytechnic University in 2015. Mr Chan says he formed the HKNP with other like-minded Hong Kong people because there was no other political party in Hong Kong that reflected their political views.
12. The stated object of the HKNP is to, among others, “further the secession of Hong Kong from the [PRC] and form a free Hong Kong Republic”, and “nullify the Basic Law, which is not authorized by the Hong Kong people”.
13. Other than advocating the independence of Hong Kong from the PRC, it is Mr Chan’s position that the HKNP’s platform also includes other policies, such as support for the arts and the abolition of functional constituencies and the Mandatory Provident Fund Schemes.
14. On 10 June 2016, the Election Affairs Commission (“the EAC”) published a notice announcing that the General Election would be held on 4 September 2016.
15. The nomination period for the General Election was to run from 16 to 29 July 2016. Under section 10 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap 541D) (“the EAC Regulation”), a person must submit a nomination form in the form specified by the EAC if he or she wishes to be nominated as a candidate in the election.
16. As mentioned above, in accordance with section 40(1)(b)(i), for a nomination to be valid, the nomination form must include or be accompanied by, among others, the Declaration. Under section 40(2) of the LCO, the nominee must sign the Declaration.
17. Further, for the purposes of the General Election, the EAC had prepared a confirmation form (“Confirmation Form”) for the use of the Returning Officers.[1] Candidates in the General Election were requested to sign and submit the Confirmation Form to the respective Returning Officers.
18. The Confirmation Form in substance requires a nominated candidate to confirm that he or she makes the Declaration in the nomination form on the basis that he or she understands that to uphold the Basic Law includes upholding its Articles 1, 12 and 159(4) (with those provisions fully set out in the Confirmation Form), and that he or she commits a criminal offence under section 103 of the EAC Regulation if he or she knowingly or recklessly makes a false statement in an election related document.
19. Mr Chan submitted the requisite nomination form on 18 July 2016. The nomination form, accompanied with the Declaration, was signed by Mr Chan, declaring that he “will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”. He did not sign the Confirmation Form nor return it to the RO.
20. After having received Mr Chan’s nomination form, the RO sent a letter dated 25 July 2016 (“the RO’s 25 July Letter”) to Mr Chan. The RO stated in it that he had reviewed various materials[2] that related to Mr Chan and the HKNP, which showed that he and the HKNP advocated the independence of Hong Kong, the abolition of the Basic Law, and the use of the participation of the election as the first step to push for Hong Kong’s independence. The RO had attached some of these materials to the letter for Mr Chan’s reference. The RO also noted that Mr Chan had refused to sign the Confirmation Form.
21. After drawing Mr Chan’s attention to the above, the RO in the letter further asked Mr Chan to answer this question (“the Question”):
“問題：你是否承認，雖然你簽署了提名表格上擁護《基本法》和保證效忠香港特別行政區的聲明，但事實上你仍然繼續主張和推動香港獨立？”
(English translation: “Question: Do you admit that, although you have signed the declaration in the nomination form to the effect that you uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region, as a matter of fact, you still continue to advocate and push for the independence of the Hong Kong Special Administrative Region?”)
22. The RO stated that he would consider the validity of Mr Chan’s nomination after considering this reply to the question and all the relevant materials.
23. On 26 July 2016, Mr Chan and his legal representatives (“D&A”) respectively sent the RO a letter in reply. In these replies, they in essence stated that:
(1) Mr Chan would not answer the Question;
(2) by signing the Declaration Mr Chan had already complied with the legal requirements of the LCO;
(3) the RO was only permitted to consider the criteria set out in section 16(3) of the EAC Regulation, and that the RO had taken into account extraneous or irrelevant matters when exercising his duties under section 16 of the EAC Regulation, namely Mr Chan’s political views;
(4) Mr Chan enjoyed the right to stand for election and the right to freedom of expression without any discrimination or distinction based on political opinion and without unreasonable restrictions; and
(5) the RO was invited to explain how a candidate’s intention to “continue to promote and push the independence of Hong Kong” bore on the validity of his or her declarations under section 40(l)(b)(i) and that upon receipt of the RO’s reply Mr Chan would consider furnishing him with further information.
24. On 27 July 2016, the RO further sent a letter to Mr Chan explaining that the general legal and factual basis of the Question had been set out in the RO’s 25 July Letter and that unless he should hear from Mr Chan further, he would proceed to make a decision on the validity of his nomination in accordance with all relevant laws and materials. The RO also copied this letter to D&A.
25. On 29 July 2016, D&A sent a letter to the RO stating that Mr Chan’s position had been clearly explained and requesting the RO to inform Mr Chan his decision with reasons immediately.
26. On 30 July 2016, one day after the nomination period ended, the RO by email provided Mr...
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