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Ho Chun Yan, Albert v Leung Chun Ying And Another

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date05 October 2012
Year2012
Judgement NumberHCAL85/2012
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL85A/2012 HO CHUN YAN, ALBERT v. LEUNG CHUN YING AND ANOTHER

HCAL 85/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 85 OF 2012

____________

IN THE MATTER of the Chief Executive Ordinance (Cap 569)

and

IN THE MATTER of the Chief Executive election held on 25 March 2012

____________

BETWEEN
HO CHUN YAN, ALBERT Petitioner

and
LEUNG CHUN YING 1st Respondent
THE HON MR JUSTICE POON SHIU-CHOR, JEREMY (RETURNING OFFICER FOR THE CHIEF EXECUTIVE ELECTION) 2nd Respondent
____________

Before: Hon Lam JA in Court (Sitting as an additional Judge of the Court of First Instance)

Date of Hearing: 25 September 2012

Date of Judgment: 5 October 2012

______________

J U D G M E N T

______________

1. At the hearing on 25 September 2012, this court heard submissions from the parties on the orders that the court should make in light of my judgment of 12 September. I also heard submissions on the application for extension of time and the application for amendment of the election petition. There is also a summons taken out by the 1st Respondent for trial of preliminary issue. This court indicated that the summons would only be dealt with after the court decides to grant extension of time. Thus, that summons was adjourned.

2. Regarding the orders that the court should make in light of the judgment of 12 September, parties were in agreement that I should grant a declaration in terms of a draft prepared by Mr Wong SC at para 24 of his skeleton submissions of 20 September 2012. I am satisfied that it is appropriate to grant such declaration in view of my judgment of 12 September. This court therefore grants the following declarations,

“1. Subject to paragraph 2 below, the time limit set out in section 34(1) of the Chief Executive Election Ordinance (Cap 569) (“the CEEO”) for the lodging of an election petition questioning an election under section 32 of the CEEO, namely within 7 working days after the day on which the result of the election is declared under section 22(1AB) or section 28 of the CEEO, is unconstitutional.

2. A remedial interpretation should be applied to section 34(1) of the CEEO to read in a judicial power or discretion to extend the time of the lodging of the election petition, subject to, mutatis mutandis, the same conditions as laid down by section 39(2) of the CEEO for applications for extension of time to apply for leave to apply for judicial review.”

3. Parties also invited the court to give a direction under Order 59 rule 21(3) as to whether one can appeal against the order embodying the said declarations as of right. Order 59 is only applicable in respect of an appeal to the Court of Appeal. I was told by counsel that there is disagreement between them as to whether the appeal should go to the Court of Final Appeal or the Court of Appeal. It is not for me to resolve this disagreement. For the sake of caution and in line with the spirit of Order 1A rule 1, I think it is sensible for this court to give a direction under Order 59 rule 21(3) just in case that the proper avenue of appeal is to the Court of Appeal. I must stress that my acceding to the joint request of the parties under these circumstances and the giving of such direction should not be construed as a holding by this court by implication that the appeal should go to the Court of Appeal.

4. I agree with the analogy drawn by Mr Wong with a determination under Order 14A. The declarations are granted in a process akin to Order 14A, albeit through the route of Rule 14 of the Chief Executive Election (Election Petition) Rules. It is a summary determination of the substantive rights of a party, viz whether there is any right to seek extension of time for lodging an election petition after the expiration of the 7-day period under Section 34 of the CEEO. I will therefore grant a direction that if the proper avenue of appeal were the Court of Appeal an appeal will lie as of right.

5. In respect of the order to be made on the striking out of the pleadings, I should consider it together with Mr Lee SC’s application to amend. The proposed amendments are set out in a draft attached to the summons of 20 September 2012. In my judgment of 12 September 2012, I held that the first statement does not come within the scope of Section 26 of the ECICO. Thus, the allegations with respect to the first statement, insofar as they are relied upon as a separate ground, should be struck out. But Mr Lee had taken up the course of pleading innuendo in respect of the second statement by reference to the first statement, see the new para 118A. To that extent, the references to the first statement should be allowed to remain.

6. As regards the third statement, Mr Lee tried to justify its retention notwithstanding his concession that it cannot be relied upon as a ground. He said the allegations were relevant to the good faith or innocence of the 1st Respondent and may therefore be relevant. Thus, in his amendments, he made some cosmetic changes to the reference to the third statement. I think, at the highest, these allegations are only matter of evidence and they are not material facts. They should not be contained in the election petition.

7. Likewise, the additional matters raised in paras 29 and 38 are, at the highest, matters of evidence. In fact, as the matter stands at the moment, I do not regard the 1st Respondent’s evincing of an intention to run for the office in a private conversation in 2009 as having any bearing on the issues that the court need to decide in this election petition. Mr Lee properly disavowed any claim that such private conversation could have pushed forward the date of public declaration of intention to stand for election in any way. Nor can I see why it is necessary to add the plea as to the publication of a summary by Ming Pao Daily News to para 38. As they are not material facts, I do not see any grounds for permitting these additional matters to be added to the election petition. Being in mind the stringent time limit for election petition and the underlying policy of speedy determination of election petition, the scope for allowing amendments to an election petition is narrower than other pleadings: see Maude v Lowley (1874) LR 9 CP 165; Halsbury’s Law of England 4th Edn 2007 Reissue Vol 15(4), para 784; Re Wellington Central Election Petition [1973] 2 NZLR 470, andin line with the underlying objective under Order 1A rule 1 the court should not allow an amendment unless it is a material factual allegation in respect of existing grounds of challenge. If the court readily allows evidence to be crept in by way of amendment on the ground that they are relevant to existing charges, there is a risk that at a later stage a petitioner may “piggy-back” upon such amendments to advance new grounds for challenge: see Dhillon v Siddiqui [2007] EWHC 2936 (Ch); Harland & Wolff Trustees Ltd v Aon Consulting Ltd [2010] ICR 121. In my view, insofar as additional evidence which supports existing grounds of challenge is concern, the proper course is to put them in by way of further affidavits or affirmations rather than by way of amendments to the election petition. The election petition should be a focused document rather than one sprinkled with background materials and evidence.

8. Before I make any specific order on the striking out and the application for amendment, I need to consider the application for extension of time. If I conclude that time should be extended, I shall come back to this aspect of the case. If I conclude that time should not be extended, the whole election petition would be dismissed and there is no need to make a separate order for these applications.

9. I held in my 12 September judgment that the criteria under Section 39 of CEEO should be applied with suitable modification to an application for extension of time in respect of the lodging of election petition. The criteria are,

(a) the petitioner has used his best endeavours to commence the proceedings within the 7 days; and

(b) granting the leave applied for is in the interest of justice.

Further, even if the criteria are satisfied, the court still has a discretion to exercise because section 39(2) provides: “the court may grant leave”. In other words, the court may decide not to grant extension of time even if the criteria are satisfied. But the court may not grant any extension if the criteria are not satisfied.

10. Mr Lee submitted that Mr Ho satisfied the first limb because there was nothing he could do within the 7 days even with his best endeavours as he only acquired the relevant knowledge well after the 7‑day limit. The UBWs of the 1st Respondent was only revealed by Ming Pao on 21 June 2012 and by then the 7-day limit had long expired.

11. On the other hand, Mr Wong submitted that “best endeavours” means “a diligent attempt to carry out an obligation”. Thus, counsel submitted, in order to satisfy this limb, a petitioner has to demonstrate that he has actively or diligently taken steps to lodge an election petition within 7 days but has been unable to do so despite his best endeavours. If a petitioner made no attempt at all, irrespective of the reasons for such omission, the first limb cannot be satisfied. Whilst counsel recognized that it would effectively exclude cases where a ground for questioning the election is only discovered after the expiration of the 7-day time limit, Mr Wong submitted that it is justified because of the strong public interest in the speedy determination of electoral challenges and the importance of certainty and finality with regard to such challenges.

12. Mr Mok SC referred to the meaning of “best endeavours” in Black’s Law...

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