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ELECTION LAW – High Court strikes out election petition involving first judicial interpretation of section 51 District Councils Ordinance

In 董健莉 對 吳定霖及另二人 (01/03/2021, HCAL245/2020) [2021] HKCFI 514, the Court interpreted section 51 of the District Councils Ordinance (Cap. 547) for the first time, holding that only a candidate or a Returning Officer could be made a respondent to election petitions. On this basis, the Court struck out the election petition against the 2nd Respondent, who was Chairman of Incorporated Owners in the relevant constituency. Jeffrey Tam and Abigail Liu acted for the 2nd Respondent.

The Petitioner, Ms. Tung Kin Lei, is a candidate of the Tai Wai Constituency of Sha Tin District in the District Council election held on 24 November 2019. She lodged an election petition questioning the election of Ms Ng Ting-lam Kudama (1st Respondent), who was the elected candidate in the same constituency.

The 2nd Respondent is chairman of the Incorporated Owners of an estate located in Tai Wai Constituency, while the 3rd Respondent is the Returning Officer of Sha Tin District Council.

The grounds of the election petition include corrupt and illegal conduct that was generally prevalent at the election and the presence of material irregularities in the poll or counting.

Section 51 of the District Councils Ordinance (“DCO”) provides that:

Any person whose election is questioned by an election petition and the Returning Officer in respect of the election may be made a respondent to the petition.”  

Accepting the submissions of Jeffrey Tam and Abigail Liu, Counsel for the 2nd Respondent, the Honourable Mr. Justice Yeung held that, upon proper construction of section 51, only two types of persons – a candidate and the Returning Officer – may be made a respondent to an election petition.

Accordingly, the Court struck out the petition election against the 2nd Respondent – who was neither a candidate nor a Returning Officer – for disclosing no reasonable cause of action and constituting an abuse of process. Costs were awarded to the 2nd Respondent, and two certificates of counsel issued given the absence of case authorities on the important legal issue raised, and the need to conduct extensive and comprehensive research into the legislative history of s. 51 DCO, which could be traced back to s. 113(2) of the UK’s Representation of the People Act 1949.  

Representation:

Jeffrey Tam and Abigail Liu, instructed by Ho Tse Wai & Partners, acted for the 2nd Respondent.


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. Recently, in Tam Hoi Pong v Town Planning Board [2020] KCFI 2265, he represented the successful Applicant in challenging the Board’s decision to approve a developer’s application for planning permission even though the relevant requirements under the New Nature Conservation Policy were not met.

Jeffrey is also experienced in a broad range of civil work with an emphasis on land, probate, company and commercial law. He regularly represents both landlords and squatters in adverse possession cases. In terms of commercial cases, Jeffrey is frequently involved in shareholders’ disputes as well as securities and finance cases.

In September 2021, Jeffrey will act in the inquest into the deaths of two firefighters during the fire at Amoycan Industrial Centre, which housed 200 mini-storage units, in 2016.  He will be representing the relative of one of the deceased firefighters.

 

 

Abigail Liu 

Abigail joined Chambers in 2019 and is developing a broad civil and criminal practice. She has experience in areas such as family and matrimonial matters, public law, land, tort, personal injuries, employee compensation, commercial litigation, trusts, probate and contract.

In Yuan Yuqin v. Cheung Hiu Yan, Fion and Another [2020] HKCFI 1419, Abigail (with Mr. Simon Wong) acted for the successful 2nd Defendant in resisting the Plaintiff’s claim for allegedly due loan repayments entered into on his behalf by the 1st Defendant without authority.

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. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.