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HCAL 804/2018
[2019] HKCFI 2135
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 804 OF 2018
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| BETWEEN |
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CHOW TING |
Petitioner |
and |
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TENG YU-YAN ANNE (THE RETURNING OFFICER FOR THE HONG KONG ISLAND CONSTITUENCY) |
1st Respondent |
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AU NOK-HIN |
2nd Respondent |
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Before: Hon Chow J in Court
Date of Hearing: 17 June 2019
Date of Judgment: 2 September 2019
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J U D G M E N T
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INTRODUCTION
1. Three principal questions arise for determination in this Election Petition, namely:
(1) whether it is a substantive requirement that a person, to be validly nominated as a candidate in a Legislative Council election for a geographical constituency, should genuinely intend to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region in addition to having signed a declaration to that effect;
(2) whether a returning office for a geographical constituency should, before he decides that a nomination of a candidate is invalid, give the candidate a reasonable opportunity to respond to the materials intended to be relied upon by the Returning Officer for the decision that the nomination is invalid;
(3) in the event the court holds that the 1st Respondent ought to have given the Petitioner such reasonable opportunity but failed to do so, whether –
(a) the irregularity should be regarded as a “material” irregularity; and
(b) if “yes”, whether the court should nevertheless dismiss the Election Petition on the ground that giving the Petitioner an opportunity to present her case would have made no difference to the outcome.
2. For reasons which I shall endeavour to explain below, my answers to the above questions are:
(1) Question (1) – “Yes”;
(2) Question (2) – “Yes”;
(3) Question (3)(a) – “Yes”; and
(4) Question (3)(b) – “No”.
BASIC FACTS
3. The Petitioner (“Ms Chow”) is a Hong Kong permanent resident and the holder of a Hong Kong Permanent Identity Card. She has been a registered elector since 2015. In January 2018, she decided to run for the Legislative Council by-election for the Hong Kong Island Geographical Constituency (“the By-election”) to be held on 11 March 2018. The 1st Respondent (“the Returning Officer”) was the returning officer for the By-election.
4. On 18 January 2018, Ms Chow submitted a duly completed and signed nomination form (“the Nomination Form”) to the Returning Officer in order to run as a candidate for the By-election. The Nomination Form contained a declaration (“the Declaration”) by Ms Chow as follows –
“I declare that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.
5. In the Nomination Form, Ms Chow stated that she was affiliated with “Demosistō” (香港眾志). Accompanying the Nomination Form was a promissory oath (“the Promissory Oath”) signed by Ms Chow on 18 January 2018, in which she stated that –
“if elected as a Member of the Legislative Council in the above by-election, I will not do anything during my term of office that would result in any one of the conditions specified in section 40(1)(b)(iii) of the Legislative Council Ordinance (Cap 542).”
6. Ms Chow also submitted a duly signed confirmation form (“the Confirmation Form”) dated 18 January 2018 to the Returning Officer, in which she declared and confirmed, inter alia, the following –
“1. In respect of the above by-election, I have, in accordance with section 40(1)(b)(i) of the Legislative Council Ordinance (Cap. 542), already declared in the nomination form that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.
2. I understand that to uphold the Basic Law means to uphold the Basic Law including the following provisions:
Article 1
The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China.
Article 12
The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government.
Article 159(4)
No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong.
3. I understand that in accordance with section 103 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D), a person who, in an election related document, makes a statement which that person knows to be false in a material particular or recklessly makes a statement which is incorrect in a material particular or knowingly omits a material particular from an election related document commits an offence. I also understand that this confirmation form will be made available for public inspection together with the nomination form.
4. I hereby confirm that I understand the content of paragraph 2 above and, in particular, the reference to Article 1, Article 12 and Article 159(4) of the Basic Law, and, on that basis, I have declared in the nomination form that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.”
7. On 24 January 2018, the Returning Officer informed Ms Chow that it had come to her (the Returning Officer’s) notice from a media report that she (Ms Chow) had previously held UK citizenship but had subsequently renounced it, and asked her to provide documentary proof of the same. On 25 January 2018, Ms Chow provided to the Returning Officer a letter from the UK Home Office to Bond NG Solicitors dated 29 December 2017 confirming that Ms Chow had renounced her British Citizenship. There were no further inquiries raised by the Returning Officer with Ms Chow regarding the validity of the Nomination Form or her nomination as a candidate in the By-election.
8. By a “Notice of Decision as to Validity of Nomination” dated 27 January 2018 (“the Decision”), the Returning Officer informed Ms Chow that her nomination as a candidate in the By-election had been declared by her (the Returning Officer) to be invalid. Essentially, the Returning Officer made the Decision on the ground that she was not satisfied that Ms Chow had duly complied with Section 40(1)(b)(i) of the Legislative Council Ordinance, Cap 542 (“the Ordinance”). Attached to the Notice of Decision was a document titled “Reasons for Ruling CHOW Ting’s Nomination as Invalid” (“Reasons for Decision”), a copy of which is attached to this judgment as “Annex I”.
9. As a result of the Decision, Ms Chow was precluded from standing as a candidate in the By-election. The By-election took place on 11 March 2018, with 4 candidates contesting in the By-election. The voter turnout rate was 43.80%, with 272, 294 valid votes cast. On 12 March 2018, the Returning Office published a “Notice of Result of Election” in the Gazette declaring the 2nd Respondent (Au Nok Hin) to be elected for the Hong Kong Island Geographical Constituency.
10. On 3 May 2018, Ms Chow commenced the proceedings herein to challenge the Decision. In the Election Petition, Ms Chow seeks the court’s determination of (inter alia) the following questions:
(1) whether Au Nok Hin declared by the Returning Officer for the Hong Kong Island Geographical Constituency to be elected in the Notice of Result of Election was duly elected; and
(2) if the court determines that Au Nok Hin was not duly elected, whether the Petitioner or some other person was duly elected in his place.
11. The substantive hearing of the Election Petition took place on 17 June 2017. On behalf of Ms Chow, Mr Paul Shieh, SC raised two principal arguments in support of the Election Petition:
(1) By virtue of Ms Chow having signed the Declaration contained in the Nomination Form, the Returning Officer ought to have regarded Ms Chow as having satisfied the requirements of Section 40(1)(b)(i) of the Ordinance.
(2) Even if there is a substantive requirement that Ms Chow should genuinely intend to uphold the Basic Law and pledge allegiance to the HKSAR, the Returning Officer was not entitled to reject Ms Chow’s nomination without giving her a reasonable opportunity to respond to the materials that the Returning Officer said were contrary to an intention to carry out the obligations under the Declaration.
By reason of the aforesaid, the court is invited to find that material irregularities have occurred in relation to the By-election within the meaning of Section 61(1)(a)(iv) of the Ordinance[1].
LEGAL REGIME FOR VALID NOMINATION AS A CANDIDATE IN A LEGISLATIVE COUNCIL ELECTION
12. Section 37(1) of the Ordinance sets out the basic eligibility criteria for a person to be nominated as a candidate in an election for a geographical constituency, including requirements as to age, ordinary and permanent residence in Hong Kong, and Chinese citizenship.
13. Section 40 of the Ordinance sets out the requirements for a valid “nomination” of a person as a candidate in an election for a constituency. In particular, Section 40(1)(b)(i) provides that a person is not validly nominated unless the nomination form includes or is accompanied by –
“a declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.
14. Article 104 of the Basic Law (“BL104”) is also relevant for the purpose of the present discussion. It states as follows:
“When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at...
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