Case Commentary

Administrative & Public Law – Court of Final Appeal upholds election petition of disqualified lawmaker Lau Siu-Lai

The Court of Final Appeal upheld Chow J’s judgment that the returning officer ought to have given the Petitioner a chance to respond to the allegations against her before determining her nomination to be invalid.

Lau Siu Lai v Kwok Wai Fun, Franco (Returning Officer for the Kowloon West Geographical Constituency) and Another

Reference:       FAMV 92 & 94/2020 (appeal from HCAL 245/2019)
   
Court:        Court of Final Appeal
   
Before:     Hon Ribeiro PJ, Hon Fok PJ, Hon Cheung PJ
   
Date of Judgment:  Reasons pending
   
Appearance:     Jeffrey Tam and Andrew Lau, led by Paul Shieh SC (for Petitioner)

 

The Court of Final Appeal’s Appeal Committee upheld Chow J’s judgment ([2020] 2 HKLRD 1395) (“Judgment”) that there had been a material irregularity in the 2018 Legislative Council By-election for the Kowloon West Geographical Constituency in that the returning officer (“RO”) ought to have given the Petitioner a chance to respond to the allegations against her before determining her nomination to be invalid.

The RO and Ms. Chan Hoi Yan, i.e. the 2nd Respondent, applied for leave to appeal to the CFA against the Judgment on the basis that Chow J ought to have made a finding as to whether the Petitioner, based on the available evidence before the Court, genuinely and truly intend to uphold the Basic Law and to pledge allegiance to the HKSAR.

The Appeal Committee did not accept the respondents’ argument, stating that the RO was under a statutory duty to determine that question, and thus, the argument was premature. The leave application was dismissed accordingly.

Jeffrey Tam

Since being called in 2009, Jeffrey has established a solid practice in public law, having been involved in a number of landmark judicial review cases, including Kwok Wing Hang & Others v Chief Executive in Council & Others, HCAL 2945/2019, CACV 542 & 583/2019 which concerns the ban on face covering. Recently, Jeffrey appeared as junior Counsel for the 1st and 2nd Applicants in the judicial review of the Small House Policy at both the Court of First Instance and Court of Appeal. Visit Jeffrey’s profile for further details.
Andrew Lau


Andrew is a Charles Ching Scholar who joined Chambers in 2018. His experience encompasses a broad range of areas such as commercial disputes, company/insolvency, construction, equity/trusts, probate, personal injuries and public law. Court work aside, Andrew teaches administrative law at the Chinese University of Hong Kong and media law at the Hong Kong Baptist University. Find out more about his experience from his profile.

 

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. 

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