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Kwok Cheuk Kin v Chief Executive In Council

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date01 December 2023
Neutral Citation[2023] HKCFI 3074
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL1978/2023
Year2023
HCAL1978/2023 KWOK CHEUK KIN v. CHIEF EXECUTIVE IN COUNCIL

HCAL 1978/2023

[2023] HKCFI 3074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1978 OF 2023

________________________

BETWEEN
KWOK CHEUK KIN Applicant
and
CHIEF EXECUTIVE IN COUNCIL Putative
Respondent
and
SECRETARY FOR JUSTICE 1st Putative
Interested Party
SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS 2nd Putative
Interested Party

________________

Before: Hon Coleman J in Court
Date of Hearing: 30 November 2023
Date of Judgment: 1 December 2023

___________________

J U D G M E N T

___________________

A. Introduction

A.1 The Nomination Requirement

1. Henry Ford is supposed to have said, “You can choose any colour you like – so long as it is black”. It may be suggested that, whilst firmly disagreeing about the colour, the HKSAR Government approves of the underlying sentiment as to choice.

2. At least, that is part of the argument in effect raised by the Applicant on his intended challenge made in these proceedings to the legislative provision containing a particular new nomination requirement (“Nomination Requirement”) applicable to the forthcoming District Council (“DC”) Ordinary Election.

3. Prior to recent legislative amendments to the District Councils Ordinance Cap 547 (“DCO”), a person seeking nomination as a candidate in respect of any constituency should be subscribed (i.e. nominated) by 10 other persons, each being an elector registered in respect of the relevant constituency. In other words, DC elections were practically open to all Hong Kong permanent residents who could gather support from 10 other electors in the constituency in which they wished to stand for election.

4. Following legislative amendments made this year, and the introduction of a new section 5A of the DCO combined with section 7(2)(b) of the District Councils (Subscribers and Election Deposit for Nomination) Regulation Cap 547A (“Nomination Regulation”), a person seeking nomination in respect of a District Council geographical constituency (“DCGC”) is required to obtain nomination – i.e. the Nomination Requirement – from: (1) not less than 50, but not more than 100, electors for the DCGC, and (2) not less than 3, but not more than 6, members of each of the three District Committees (“3Cs”) in the District.

5. There can be no real dispute that the Nomination Requirement has made it at least significantly more difficult for a person to stand for election as a District Councillor to represent a DCGC. Not least in light of what has happened since, there is room for understanding the views of some persons that for all practical purposes it may have made it impossible.

A.2 The Battle Lines

6. Article 26 of the Basic Law (“BL26”) provides:

Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and the right to stand for election in accordance with law.

7. Article 21 of the Hong Kong Bill of Rights (“BOR21”), headed ‘Right to participate in public life’, provides:

Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions –

(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electorate;

(c) to have access, on general terms of equality, to public service in Hong Kong.

8. The Applicant seeks leave to apply for judicial review, and on the substantive application for judicial review he seeks a declaration that the new provision embodying the Nomination Requirement is inconsistent with BL26 and/or BOR21, and therefore unconstitutional, null, void and of no effect. The core assertions are that BL26 and BOR21 are engaged and the Nomination Requirement cannot survive a proportionality analysis, because it is a disproportionate interference with and/or an unreasonable restriction upon the fundamental rights created by BL26 and BOR21.

9. The Putative Respondent (“CE-in-C”) and putative interested parties (“SJ” and “SCMA”) (all together, “Government”) oppose the application on various bases, including that:

(1) the Applicant lacks the necessary locus or standing to bring this application (and has been less than frank in his response to the challenge made on that point);

(2) the application was made only after undue delay, and there is no good reason to extend the time for making it;

(3) the Nomination Requirement is one which has been specifically endorsed by organs of the Central People’s Government (“CPG”);

(4) neither BL26 nor BOR21 are engaged; and

(5) even if BL26 and/or BOR21 are engaged, the Nomination Requirement is consistent with the Basic Law and satisfies the proportionality analysis.

A.3 The Hearing

10. The DC Elections are due to be held on 10 December 2023, but these proceedings were commenced only by a Form 86 dated 6 November 2023. In those circumstances, I gave tight timetabling directions to bring this matter to a ‘rolled-up’ hearing of (1) the application for leave to apply for judicial review, and (2) if appropriate, the substantive hearing of the application for judicial review. The hearing was fixed for 30 November 2023.

11. That hearing date was put in jeopardy by the Applicant’s application for legal aid made on 9 November 2023, which triggered an automatic 42-day stay of the proceedings, which would have expired only after the DC Elections would have taken place. On the same date, I lifted the stay with immediate effect, so that the hearing could go ahead.

12. But the hearing was again put in doubt when, despite having solicitors acting for him on the record, the Applicant wrote personally to the Court expressing some equivocation as to whether he should proceed with the application or withdraw it. But, once his solicitors were apprised of that letter, they took instructions from the Applicant and wrote to the Court to confirm that he would continue to pursue the application.

13. The hearing has proceeded on the basis of an Amended Form 86 dated 23 November 2023, where the subject matter of the challenge has remained unchanged. In so far as it may be necessary for me formally to grant permission for the amendment, I shall grant it.

14. The Applicant has been represented by Mr Anson Wong Yu Yat and Mr Jonathan Ip of Counsel. The CE-in-C has been represented by Mr Jenkin Suen SC leading Mr Michael Lok of Counsel. The written and oral submissions presented by both teams of Counsel were of a very high standard, not least against the tight timetable for bringing this matter to an effective hearing.

15. The case was fully argued on all points. At the end of the hearing, I reserved my decision until the next day. This is my Judgment.

16. For persons who do not know their DCGCs from their DCCs or DFCCs or DFSCs etc, I have appended to this Judgment a glossary of terms which I hope will assist with navigating the alphabetical seas of acronyms adopted.

B. Historical Context and Legislative Framework

B.1 District Organizations

17. As already stated, the impugned Nomination Requirement is to be found in section 7(2)(b) of the Nomination Regulation. But, to understand the nature of the challenge made in these proceedings, it is helpful to view the Nomination Requirement in its historical context and legislative framework. Mr Wong and Mr Suen have both traversed that context, albeit with different points of emphasis.

18. The starting point in the period since the resumption of sovereignty in 1997 must be Articles 97 and 98 of the Basic Law (“BL 97” and “BL 98” respectively). Those provisions are as follows:

Article 97

District organisations which are not organs of political power may be established in the Hong Kong Special Administrative Region, to be consulted by the government of the Region on district administration or other affairs, or to be responsible for providing services in such fields as culture, recreation and environmental sanitation.

Article 98

The powers and functions of the district organisations and the method of their formation shall be prescribed by law.

19. As will be seen below, those provisions may identify not just the starting point but may also inform the endpoint.

20. However, local district advisory bodies in Hong Kong date back at least to the late 1970s, when they were first established in the New Territories in 1977.

21. In the 1980s, there were eight District Advisory Boards – for which I shall avoid the offered definition of “DAB” for obvious reasons – one each to cover all Districts of the New Territories. Their terms of reference were:

(1) to advise on matters affecting the well-being of the inhabitants of the district;

(2) to advise on the provision and the use of public facilities within the district, in particular:

(a) on the adequacy and priorities of the Public Works Programme for the district;

(b) on the use of funds available for expenditure within the district in the Local Public Works Vote;

(3) to undertake, using the public funds made available for the purpose:

(a) minor environmental improvements within the district;

(b) the promotion of recreation and cultural activities within the...

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