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Mok Charles Peter v Tam Wai Ho And Another

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date13 December 2010
Subject MatterFinal Appeal (Civil)
Judgement NumberFACV8/2010
CourtCourt of Final Appeal (Hong Kong)
FACV8/2010 MOK CHARLES PETER v. TAM WAI HO AND ANOTHER

FACV No. 8 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2010 (CIVIL)

(ON APPEAL FROM CACV NO. 115 OF 2009)

_______________________

Between:

MOK CHARLES PETER Petitioner
(Appellant)
- and -
TAM WAI HO 1st Respondent
(1st Respondent)
VINCENT FUNG HAO-YIN 2nd Respondent
(2nd Respondent)
SECRETARY FOR JUSTICE
(for and on behalf of the Secretary for the Constitutional and Mainland Affairs)		 Intervener
_______________________
Court: Chief Justice Ma, Mr Justice Bokhary PJ,
Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ
Dates of Hearing:
Date of Judgment: 		18 – 19 November 2010
13 December 2010

_______________________

J U D G M E N T

______________________

Chief Justice Ma:

1. The issue before the Court is whether a finality provision (that is, one that curtails the right of appeal from the decision of a court) contained in the Legislative Council Ordinance, Cap.542 (“the LCO”), is constitutional. The relevant provision is s.67(3) of the LCO which states that, in the case of an election petition questioning the election of a member to the Legislative Council, the decision of the Court of First Instance shall be final as to the matters in issue.

2. There are a number of facets which will have to be considered. I will presently identify them after first dealing with the background to this case.

A Background

3. After polling day on 7 September 2008 in the elections to the Legislative Council, the first respondent (Dr Tam Wai Ho) was declared by the Returning Officer (the second respondent, who has taken no part in the present appeal) to be elected to the Council for the Information Technology (IT) functional constituency. He had received 2,017 votes while the only rival candidate, the petitioner (Mr Charles Peter Mok) gathered 1,982 votes; the margin was 35 votes. Notice of the result was published in the Gazette on 12 September 2008.

4. On 10 November 2008, the petitioner lodged an election petition seeking an order that he be instead declared the winner for the IT functional constituency. It was asserted in the petition (as amended) that material irregularities occurred in the election, and that the first respondent had engaged in illegal and corrupt conduct.

5. The election petition was tried by Reyes J on 7 and 9 April 2009. In a judgment delivered on 9 April 2009, the learned judge dismissed the petition with costs. He held that the petitioner had failed to establish there was any material irregularity nor any illegal or corrupt conduct on the first respondent’s part. In view of the nature of the issue before this Court, it is not necessary to refer further to the details of the dispute before Reyes J nor his findings on them.

6. The petitioner sought to appeal from this decision to the Court of Appeal. On 3 December 2009, the Court of Appeal (Tang VP, Yeung JA and Lam J) unanimously dismissed the appeal. It is clear from the reasons for judgment handed down on 11 December 2009 that the only ground for doing so was that the Court of Appeal was of the view that it lacked jurisdiction, in that s.67(3) of the LCO barred any further appeal from the Court of First Instance on an election petition. The Court heard arguments on whether that provision was constitutional and held, applying the proportionality test (to which I shall return below), that s.67(3) was constitutional and therefore valid. I should mention that at the appeal stage, leave had been given to the Secretary for Constitutional and Mainland Affairs to intervene to argue the constitutional issue (and leave to intervene was similarly granted to the Secretary in relation to the present appeal by a consent order dated 18 March 2010).

7. Following the dismissal of the appeal, the petitioner sought to appeal directly to this Court. This was of course not possible and after this was pointed out to the petitioner at the hearing before the Appeal Committee on 26 March 2010, the petitioner then sought leave from the Court of Appeal to appeal to the Court of Final Appeal. This having been refused, the petitioner applied to the Appeal Committee for leave. On 2 June 2010, leave was given on the following question of great general and public importance:-

“Are the provisions of section 67(3) of the Legislative Council Ordinance making the determination of the Court of First Instance as certified at the end of the trial of an election petition final inconsistent with Article 82 of the Basic Law and therefore unconstitutional?”

B The constitutional and statutory context

8. From the said question before us, it will at once be seen that the following issue arises to be determined in this appeal: whether Art.82 (dealing with the power of final adjudication vested in the Court of Final Appeal), assuming it to be engaged, has been infringed by s.67(3) of the LCO. Before addressing this issue, I must first examine the constitutional and statutory context relevant to this case.

9. The Basic Law:-

(1) Article 26 gives permanent residents of the HKSAR the right to vote and the right to stand in elections in accordance with law. This is mirrored in Art.21 of the Bill of Rights contained in the Hong Kong Bill of Rights Ordinance Cap.383. The right to vote has been described as “without doubt the most important political right”: Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, at 221 (para.164).

(2) In relation to the Legislative Council, Arts.66 to 79 of the Basic Law refer to the duties, composition, procedures, elections and other matters relevant to it.

(3) For the Judiciary:-

(a) Article 81 states in terms that the judicial system previously practised in Hong Kong shall be maintained except for the changes consequent of the establishment of the Court of Final Appeal. That Court has replaced the Judicial Committee of the Privy Council at the apex of our court structure: see Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570, at 584 (para.28). It will be necessary to discuss this case further below.

(b) Articles 82 and 83 state:-

“Article 82

The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region, which may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal.

Article 83

The structure, powers and functions of the courts of the Hong Kong Special Administrative Region at all levels shall be prescribed by law.”

(c) I should also mention Art.35 of the Basic Law which was relied on by the petitioner in this appeal. That Article refers to the right of access to the courts.

10. As Art.83 of the Basic Law indicates, the structure, powers and functions of the courts are to be prescribed by law. We are, however, concerned in this appeal with the function of final adjudication vested in the Court of Final Appeal under Art.82, and the restriction or limitation that is said to be placed on that function (by s.67(3) of the LCO).

11. The Hong Kong Court of Final Appeal Ordinance Cap.484 (“the HKCFAO”) sets out the jurisdiction, structure and powers of the Court of Final Appeal. Appeals to the Court are circumscribed and leave to appeal is required in all cases. The relevant provision governing appeals to the Court in civil matters is s.22. Apart from the well known provisions regarding appeals as of right (s.22(1)(a)) and appeals at the discretion of the court where a point of great general or public importance arises (s.22(1)(b)), there is a third type of appeal where an appeal to the Court of Final Appeal is possible:-

“(c) at the discretion of the Court, from –

(i) a determination of the Court of First Instance under section 37(1) of the Chief Executive Election Ordinance (Cap. 569); or

(ii) a judgment or order of the Court of First Instance in –

(A) an application for judicial review under section 21K of the High Court Ordinance (Cap. 4); or

(B) any other proceedings under that Ordinance,

which put in issue whether the candidate is duly determined to be not returned at an election under section 26A(4) of the Chief Executive Election Ordinance (Cap. 569) or whether the candidate declared under section 28 of that Ordinance as elected at an election can lawfully assume the office of the Chief Executive.”

I shall also be referring to the Chief Executive Election Ordinance Cap.569 (“the CEEO”) later in this judgment.

12. There are also restrictions placed on appeals to the Court of Appeal from a decision of the Court of First Instance. Section 14(3)(c) of the High Court Ordinance Cap.4 (appeals in civil matters) provides that no appeal shall lie to the Court of Appeal “from a judgment or order of the Court of First Instance, where it is provided by any ordinance or by rules of court that the same is to be final”. Section 67(3) of the LCO is said to be one such provision.

13. I now deal with the statutory scheme as relates to the Legislative Council. The relevant ordinance is the LCO. One of the purposes of the Ordinance, as the long title states, is to provide for the election of members to the Council. Apart from those provisions relating to legal proceedings (see paras 14 to 15 below), the following provisions can be noted for the purposes of this appeal:-

(1) The term of office for the Legislative Council is 4 years: Art.69 of the Basic Law; s.4(1).

(2) Members of the Legislative Council are elected as candidates in geographical constituencies (of which there are 5: s.18(1) or functional constituencies (of which there are 28: s.20(1)). Part III of the LCO makes provision for those constituencies and Part V provides for the registration of voters in the...

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