Case Commentary

Constitutional & Administrative Law – Court of First Instance Allowed Election Petition of Disqualified Lawmaker Lau Siu-lai

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

Reference: [2020] HKCFI 787
Court: Court of First Instance
Before: Hon Chow J in Court
Date of judgment: 21 May 2020
Appearance:  Jeffrey Tam and Andrew Lau, led by Paul Shieh SC (for Petitioner)

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OVERVIEW

Chow J allowed Lau Siu-lai’s (“Ms Lau”) election petition (“Petition”), which challenged a returning officer’s (“RO”) decision to bar Ms Lau from running in the Legislative Council by-election for the Kowloon West Geographical Constituency held on 25 November 2018 (“By-election”).

Chow J held that the RO was not entitled to reject Ms Lau’s nomination without giving her a reasonable opportunity to respond to the materials that the RO said were contrary to an intention to uphold the Basic Law and pledge allegiance to the HKSAR under s.40(1)(b)(i) of the Legislative Council Ordinance (Cap. 542) (“LCO”).

FACTS

Background

This was an election petition lodged by Ms Lau pursuant to s.61 LCO, questioning the By-election on the ground that material irregularities and/or violations of the Hong Kong Bill of Rights Ordinance (Cap. 383) and/or violations of the Basic Law occurred in relation to the By-election.

Ms Lau was previously elected as a member of the Legislative Council (“LegCo”) in the LegCo Ordinary Election (Kowloon West Geographical Constituency) held on 4 September 2016. However, she was subsequently held by Au J (as he then was), in Chief Executive of HKSAR v President of Legislative Council  [2017] 4 HKLRD 115, to have been disqualified from assuming and entering on the office of a LegCo member or have vacated the same. As a result, there was a vacancy in the Kowloon West Geographical Constituency.

On 2 October 2018, Ms Lau submitted a duly completed and signed nomination form to the RO in order to run as a candidate in the By-election (“Nomination Form”). The nomination form contained a declaration that Ms Lau would uphold the Basic Law and pledge allegiance to the HKSAR (“Declaration”). Ms Lau also submitted a duly signed confirmation form to the RO, in which she declared and confirmed, inter alia, that she would uphold the Basic Law and pledge allegiance to the HKSAR (“Confirmation Form”).

On 12 October 2018, the RO informed Ms Lau that her nomination as a candidate in the By-election had been declared by him to be invalid, on the ground that he was not satisfied that Ms Lau had duly complied with s.40(1)(b)(i) LCO, i.e. there was cogent and compelling evidence to show that Ms Lau did not genuinely and truly intend to uphold the Basic Law and to pledge allegiance to the HKSAR (“Decision”).

It was not in dispute that the RO did not give the Petitioner any opportunity to respond to the materials which he relied upon in coming to the Decision. The RO explained that the evidence before him constituted sufficient basis for his determination, and thus, it was not necessary to require Ms Lau to furnish any other information.

As a result of the Decision, Ms Lau was precluded from standing as a candidate in the By-election. On 26 November 2018, it was declared in the Gazette that Chan Hoi Yan, i.e. the 2nd Respondent, had been elected for the Kowloon West Geographical Constituency.

The Election Petition

Ms Lau commenced the present proceedings on 25 January 2019. It was argued on behalf of Ms Lau that:

(I) The RO was not entitled to reject Ms Lau’s nomination without giving her a reasonable opportunity to respond to the materials that he considered were contrary to an intention to uphold the Basic law and pledge allegiance to the HKSAR under s.40(1)(b)(i) LCO;

(II) Therefore, it is not necessary for the Court to determine whether the RO was right or wrong to conclude that she did not have the requisite intention. This is a hypothetical question which does not arise for determination. For completeness sake, it was submitted that the RO has failed to show that Ms Lau did not genuinely and truthfully intend to uphold the Basic Law and pledge allegiance to the HKSAR;

(III) By reason of the above, material irregularities have occurred in relation to the By-election within the meaning of s.61(1)(a)(iv) LCO.

CHOW J’S HOLDING

Chow J held that the present case is indistinguishable from Chow Ting v Teng Yu-Yan Anne & Anor  [2019] 4 HKLRD 459 and Lau Wing Hong v Chan Yuen Man, Amy & Anor  [2019] HKCFI 5 HKLRD 1 (§18). A returning officer ought to have given a candidate a reasonable opportunity to respond to any materials intended to be relied upon by the returning officer for a decision that the candidate’s nomination is invalid prior to making the decision. A failure to do so amounts to a material irregularity in an election (§19). Here, the principle of natural justice requires that Ms Lau be given an opportunity to make representations to the RO prior to the making of the Decision (§20).

Chow J rejected the RO’s argument that there is no material irregularity if the outcome of the election would not have been affected in a case where, on all the materials before the Court, the decision in disqualifying a candidate was objectively correct, i.e. the ultimate outcome would have been the same even if Ms Lau had been afforded an opportunity to make representations to the RO. Chow J also rejected that whether Ms Lau was qualified to be nominated as a candidate in the By-election was a constitutional question which the Court was duty bound to determine, as in Chief Executive of HKSAR v President of Legislative Council [2017] 1 HKLRD 460 (§21).

While the question of whether a candidate’s nomination was correctly or incorrectly determined may be relevant, it is by no means a conclusive consideration. This is because, as held by Cheung J (as he then was) in Lee Chun Hung v Sin Kin Man Francesca [2011] 3 HKLRD 175 at §22, whether there has been a material irregularity should not be judged solely by reference to whether the outcome has been affected by the irregularity in any “material” way. The significance and gravity of the irregularity, in the context of the decision in question, are also important considerations (§22).

The RO accepts that a person who was once determined not to genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR is not forever barred from standing in a future LegCo election, but Chow J held that whether a person has so “repented” is a matter to be determined, in the first instance, by the returning officer and not the Court (§§23-24). In the present case, the RO did not state expressly in his affidavit, that he had given Ms Lau an opportunity to make representations and had she given those explanations now advanced in these proceedings, he would still have reached the same conclusion. The RO commented on various aspects of Ms Lau’s explanations, but stopped short of making a clear and unequivocal statement that, notwithstanding her explanations, he would still have come to the same conclusion. In any case, it is not necessary to reach a final conclusion on this matter because the “outcome” is only one of the relevant considerations in determining whether a material irregularity has occurred (§25).

In determining the materiality of the irregularity in this case, Chow J held that it is important to bear in mind the nature of the right affected by the Decision, i.e. the fundamental right to stand in an election protected by Article 26 of the Basic Law and Article 21(b) of the Hong Kong Bill of Rights, and the importance of the principles of natural justice or procedural fairness. There was no urgency which would make it impracticable for the RO to give Ms Lau a proper opportunity to respond before making a decision which adversely affected her fundamental right. The unfairness of the situation is obvious, and the Court should be slow in sanctioning an unfair practice (§26).

Finally, Chow J also rejected the RO’s suggestion that the present case is exceptional because Ms Lau was disqualified from the very office which the By-election was concerned with, and thus, she was disqualified from assuming the office of member of the 6th LegCo (Kowloon West Geographical Constituency), which has a term of office of 4 years, commencing in 2016. There is no authority to support this proposition. Nor is there anything in the Interpretation of Article 104 of the Basic Law by the Standing Committee of the National People’s Congress on 7 November 2016 to support the argument (§§31-32).

As a result, Chow J found it to be clear that there was a material irregularity in relation to the By-election, and also found that Ms Chan was not duly elected in the By-election (§33).