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HCAL 245/2019
[2020] HKCFI 787
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 245 OF 2019
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| BETWEEN |
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LAU SIU-LAI |
Petitioner |
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and
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KWOK WAI-FUN, FRANCO
(RETURNING OFFICER FOR THE KOWLOON WEST GEOGRAPHICAL CONSTITUENCY) |
1st Respondent |
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CHAN HOI YAN |
2nd Respondent |
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Before: Hon Chow J in Court
Date of Hearing: 7 May 2020
Date of Judgment: 21 May 2020
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J U D G M E N T
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INTRODUCTION
1. In this Election Petition, the Petitioner seeks to challenge the decision of 1st Respondent on 12 October 2018 that her nomination as a candidate in the Legislative Council by-election for the Kowloon West Geographical Constituency held on 25 November 2018 (“the By-election”) was invalid.
BASIC FACTS
2. The Petitioner (“Ms Lau”) is a Hong Kong permanent resident. She was previously elected as a member of the Legislative Council in the Legislative Council Ordinary Election (Kowloon West Geographical Constituency) held on 4 September 2016. However, she was subsequently held by Au J (as he then was), in a judgment handed down on 14 July 2017 in Chief Executive of HKSAR v President of Legislative Council [2017] 4 HKLRD 115 (“the 4 Oath Takers Case”), to have been “disqualified from assuming and entering on the Office of a member of the [Legislative Council] or have vacated the same”. As a result, there was a vacancy in the Kowloon West Geographical Constituency of the Legislative Council.
3. On 7 September 2018, the Chief Electoral Officer published a notice in the Gazette that a by-election would be held on 25 November 2018 to return a member for the Kowloon West Geographical Constituency. The 1st Respondent (“the Returning Officer”) was the returning officer for the By-election.
4. Ms Lau decided to run in the By-election. On 2 October 2018, she submitted a duly completed and signed nomination form (“the Nomination Form”) to the Returning Officer in order to run as a candidate in the By-election. The Nomination Form contained a declaration (“the Declaration”) by her 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 Lau stated, in relation to “Political Affiliation”, that she was affiliated with “Democracy Groundwork/Labour Party” (小麗民主教室 / 工黨).
6. Ms Lau also submitted a duly signed confirmation form (“the Confirmation Form”) dated 2 October 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. By a “Notice of Decision as to Validity of Nomination” dated 12 October 2018 (“the Decision”), the Returning Officer informed Ms Lau that her nomination as a candidate in the By-election had been declared by him (the Returning Officer) to be invalid, on the ground that he was not satisfied that Ms Lau had duly complied with s 40(1)(b)(i) of the Legislative Council Ordinance, Cap 542 (“the Ordinance”). Essentially, the Returning Officer came to that conclusion having regard to Ms Lau’s previous public statements, declarations and/or conduct which the Returning Officer considered:
“constituted a fundamental inconsistency with the Declaration that she will uphold the Basic Law and pledge allegiance to the HKSAR, and/or had a present intention to do the same. In all the circumstances, I was satisfied that, notwithstanding that [Ms Lau] had signed the Declaration and the Confirmation Form, there was cogent, clear and compelling materials to show that [Ms Lau] did not genuinely and truly intend to uphold the Basic Law and to pledge allegiance to the HKSAR. Accordingly, [Ms Lau] did not make a genuine declaration as required under section 40(1)(b)(i) of the LCO.”[1]
8. Ms Lau’s previous public statements, declarations and/or conduct referred to and relied upon by the Returning Officer included the following:
(1) a joint declaration made by Demositō, Mr Chu Hoi Dick and Ms Lau on 30 July 2016 reported in the 15 September 2018 issue of Wen Wei Pao;
(2) the fact that she did not properly follow the prescribed oath under Article 104 of the Basic Law (“BL 104”) at the first meeting of the 6th Legislative Council on 12 October 2016;
(3) her Facebook statement on 13 October 2016; and
(4) her political platform ([總綱I政治] 政治上公民自強自決) reported in the 14 September 2018 issue of Ming Pao and the 15 September 2018 issue of Wen Wei Pao.
9. Attached to the Decision was a document titled “Reasons for Ruling LAU Siu Lai’s Nomination as Invalid” (“Reasons for Decision”), a copy of which is attached to this judgment as “Annex I”.
10. It is not in dispute that the Returning Officer did not give Ms Lau any opportunity to respond to the materials which he relied upon in coming to the Decision. The Returning Officer explained why he did not do so at §28 of his Affidavit, as follows:
“In view of the matters set out above, I was satisfied that there was cogent and clear evidence to show that [Ms Lau] did not genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR when she signed the Declaration and the Confirmation Form and, after seeking legal advice, I was satisfied that the cogent and clear evidence would be sufficient basis for the determination of the validity of [Ms Lau’s] nomination and it was not necessary to invoke section 10(1) of the EAC Regulation to require [Ms Lau] to furnish any other information.”
11. As a result of the Decision, Ms Lau was precluded from standing as a candidate in the By-election. The By-election took place on 25 November 2018, with 5 candidates contesting in the By-election. The voter turnout rate was 44.45%, with 214,790 valid votes cast. On 26 November 2018, the Returning Office published a “Notice of Result of Election” in the Gazette declaring Chan Hoi Yan (“Ms Chan”) to be elected for the Kowloon West Geographical Constituency.
THE ELECTION PETITION
12. On 25 January 2019, Ms Lau commenced the proceedings herein to challenge the Decision, and sought the court’s determination on (i) whether Ms Chan declared by the Returning Officer to be elected in the Notice of Result of Election was duly elected, and (ii) if the court should determine that Ms Chan was not duly elected, whether Ms Lau or some other person was duly elected in her place.
13. In the Election Petition, Ms Lau questions the regularity of the By-election on the following grounds:
(1) The Returning Officer ought to have regarded any substantive constitutional requirement (which is disputed) to support the Basic Law and pledge allegiance to the HKSAR of the PRC (“the Substantive Constitutional Requirement”) as having been satisfied by the signing and submission of the Declaration and Confirmation Form (“Ground 1”).
(2) Even if, despite the signing and submission of the Declaration and Confirmation Form, the Returning Officer still had a power to decide that a candidate did not fulfil such substantive requirement: (i) he could only so decide if there were cogent, clear and compelling materials which would demonstrate to an objective reasonable person that Ms Lau plainly did not have that intention at the time of the nomination, (ii) he ought to have given a reasonable opportunity to Ms Lau to respond to any materials which he considered showed that Ms Lau did not have the intention to carry out the obligations under the Declaration, and (iii) he ought to have taken into account those responses before determining whether Ms Lau did not have the requisite intention. However, the Returning Officer refused and/or failed to provide any reasonable opportunity to Ms Lau to deal with any of the materials he relied upon in arriving at the Decision, as a result of which the Decision was vitiated by procedural irregularity and by infringement of her...
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