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Wong Ho Ming v Secretary For Justice

Judgment Cited authorities 6 Cited in 1 Precedent Map Related
Vincent
Judgment Date10 June 2020
Neutral Citation[2020] HKCFI 1132
Judgement NumberHCAL2124/2019
Citation[2020] 3 HKLRD 419
Year2020
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL2124/2019 WONG HO MING v. SECRETARY FOR JUSTICE

HCAL 2124/2019

[2020] HKCFI 1132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2124 OF 2019

________________________

IN THE MATTER of section 39(1)(e)(i) of the Legislative Council Ordinance, Cap 542

and
IN THE MATTER of section 21(1)(e)(i) of the District Councils Ordinance, Cap 547

and
IN THE MATTER of section 23(1)(e)(i) of Rural Representative Election Ordinance, Cap 576

________________________

BETWEEN
WONG HO MING (黃浩銘) Applicant

and
SECRETARY FOR JUSTICE Putative Respondent

________________________

Before: Hon Chow J in Court
Date of Hearing: 28 April 2020
Date of Judgment: 10 June 2020

________________________

J U D G M E N T

________________________

INTRODUCTION

1. The question which arises for determination in this application is whether various legislative provisions which provide that a person shall be disqualified from being nominated as a candidate at an election, and from being elected as (i) a member of the Legislative Council, (ii) a member of a District Council, and (iii) a Rural Representative for a Rural Area if he is or has been convicted in Hong Kong or any other place of an offence for which he has been sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine for a period of 5 years after the date of his conviction (“the Impugned Measure”) are inconsistent with the rights to vote and to stand for election under Article 26 of the Basic Law (“BL 26”) and/or the right to participate in public life under Article 21 of the Hong Kong Bill of Rights (“BOR 21”).

2. For reasons which I shall endeavour to explain in this judgment, I am of the view that the Impugned Measure is lawful and constitutionally compliant.

THE APPLICANT’S DISQUALIFICATION

3. The Applicant is a Hong Kong permanent resident over the age of 21. He has been a resident of Ha Wo Che, Sha Tin, since his birth. The Applicant describes himself as a social activist. He joined the League of Social Democrats (社會民主連線) in 2008, and is currently its Chairman.

4. In November 2015, the Applicant stood in the District Council Ordinary Election in the Lek Yuen Constituency of Sha Tin District Council and received 1,406 votes.

5. In September 2016, the Applicant stood in the Legislative Council General Election in the New Territories West Geographical Constituency and received 28,529 votes.

6. Over the years, the Applicant has been convicted and sentenced to imprisonment on a number of occasions, including:

(1) On 30 December 2015, the Applicant was convicted of the offence of unlawful assembly in ESCC 3658/2014 in connection with a demonstration outside the Legislative Council Chamber objecting to development works in the North East New Territories New Development Areas. On 19 February 2016, the Applicant was sentenced by the magistrate to 120 hours of community service. On 15 August 2017, upon an application for review of sentence by the Secretary for Justice in CAAR 3/2016, the Court of Appeal set aside the community service order made by the magistrate and substituted it by a sentence of 13 months’ imprisonment. On 7 September 2018, upon his appeal in FACC 4/2018, the Court of Final Appeal reduced the sentence to 3 months and 9 days (being the period of time that the Applicant had spent in prison).

(2) On 13 October 2017, the Applicant was convicted of the offence of criminal contempt by Andrew Chan J in HCMP 798/2015 in connection with the “Occupy Movement” in Mong Kok on 26 November 2014. On 17 January 2018, the judge imposed a prison term of 4 months and 15 days, which the Applicant served between 17 January 2018 and 16 April 2018. The Applicant’s appeal against liability to the Court of Appeal in CACV 259/2017 was dismissed on 23 March 2018, and his application for leave to appeal to the Court of Final Appeal in FAMV 55/2018 was dismissed by the Appeal Committee on 18 December 2018.

(3) On 9 April 2019, the Applicant was convicted in the District Court in DCCC 480/2017 of the offences of “incitement to commit public nuisance” and “incitement to incite public nuisance” in connection with the “Occupy Movement” in the vicinity of Admiralty on 28 September 2014. On 24 April 2019, he was sentenced to 8 months’ imprisonment for each offence, to be run concurrently. His appeal against both conviction and sentence is pending hearing. In the meantime, he has completed serving his sentence.

7. Section 39 of the Legislative Council Ordinance (Cap 542) (“the LCO”), Section 21 of the District Councils Ordinance (Cap 547) (“the DCO”) and Section 23 of the Rural Representative Election Ordinance (Cap 576) (“the RREO”), which are all in similar terms, set out various categories of persons who are disqualified from being nominated as a candidate at an election and from being elected as a member of the Legislative Council, a member of a District Council, and a Rural Representative for a Rural Area respectively.

8. The particular provisions which are challenged by the Applicant in the present application for judicial review are Section 39(1)(e)(i) of the LCO, Section 21(1)(e)(i) of the DCO, and Section 23(1)(e)(i) of the RREO (“the Impugned Provisions”):

(1) Section 39(1)(e)(i) of the LCO states as follows:

“A person is disqualified from being nominated as a candidate at an election, and from being elected as a Member, if the person -

(e) … where the election is to be held or is held within 5 years after the date of the person’s conviction, is or has been convicted -

(i) in Hong Kong or any other place, of an offence for which the person has been sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine”.

(2) Section 21(1)(e)(i) of the DCO states as follows:

“A person is disqualified from being nominated as a candidate at an election, and from being elected as an elected member, if the person -

(e) … where the election is to be held or is held within 5 years after the date of the person’s conviction, is or has been convicted -

(i) in Hong Kong or any other place, of an offence for which the person has been sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine”.

(3) Section 23(1)(e)(i) of the RREO states as follows:

“A person is disqualified from being nominated as a candidate at an election, and from being elected as a Rural Representative for a Rural Area, if the person -

(e) … where the election is to be held or is held within 5 years after the date of the person’s conviction, is or has been convicted -

(i) in Hong Kong or any other place, of an offence for which the person has been sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine”.

9. The effect of the Impugned Provisions is that a person convicted of a criminal offence in Hong Kong or elsewhere is disqualified from being nominated as a candidate at an election, and from being elected as (i) a member of the Legislative Council, (ii) a member of a District Council, and (iii) a Rural Representative for a Rural Area if:

(1) his sentence for that offence is a term of imprisonment exceeding 3 months (“the Sentence Threshold”); and

(2) the election is held within 5 years after the date of his conviction (“the Disqualification Period”).

10. By reason of his latest conviction and sentence (subject to the outcome of his pending appeal) and by the operation of the Impugned Provisions, the Applicant has been, and will remain, disqualified from being nominated as a candidate or being elected as a member of the Legislative Council or a District Council or as a Rural Representative up to 8 April 2024. In particular, the Applicant was, or will be, disqualified in respect of following elections:

(1) the 2019 District Council Ordinary Election, which took place in November 2019;

(2) the Legislative Council General Election to be held in September 2020;

(3) the election of the Resident Representative for the Ha Wo Che Village to be held in around January 2023 (according to the Applicant, his father was elected as the Resident Representative for the Ha Wo Che Village of Sha Tin Rural Committee for five consecutive terms from 2003 to 2023); and

(4) the District Council Ordinary Election to be held in around November 2023.

APPLICATION FOR JUDICIAL REVIEW

11. On 20 July 2019, the Applicant made the present application for leave to apply for judicial review of the Impugned Provisions, contending that they are inconsistent with BL 26 and BOR 21.

12. BL 26 states as follows:

“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.”

13. BOR 21, so far as relevant, states as follows:

“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 electors”.

14. It is not in dispute that the rights protected by BL 26 and BOR 21 are engaged in the present case. It is also not in dispute that those rights are not absolute rights[1]. Accordingly, the question for determination is whether the restriction on those rights imposed by the Impugned...

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1 cases
  • Kwok Cheuk Kin v Chief Executive In Council
    • Hong Kong
    • 1 Diciembre 2023
    ...that the margin of appreciation is applicable to all steps in the proportionality test. 178. In Wong Ho Ming v Secretary for Justice [2020] 3 HKLRD 419, Chow J (as Chow JA then was) was considering another case relating to the right to stand for election, in the context of disqualifications......

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