HCAL 245/2019

[2020] HKCFI 787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 245 OF 2019

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J U D G M E N T

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INTRODUCTION

1.  In this Election Petition, the Petitioner seeks to challenge the decision of 1^st Respondent on 12 October 2018 that her nomination as a candidate in the Legislative Council by-election for the Kowloon West Geographical Constituency held on 25 November 2018 (“the By-election”) was invalid.

BASIC FACTS

2.  The Petitioner (“Ms Lau”) is a Hong Kong permanent resident.  She was previously elected as a member of the Legislative Council in the Legislative Council Ordinary Election (Kowloon West Geographical Constituency) held on 4 September 2016.  However, she was subsequently held by Au J (as he then was), in a judgment handed down on 14 July 2017 in Chief Executive of HKSAR v President of Legislative Council [2017] 4 HKLRD 115 (“the 4 Oath Takers Case”), to have been “disqualified from assuming and entering on the Office of a member of the [Legislative Council] or have vacated the same”.  As a result, there was a vacancy in the Kowloon West Geographical Constituency of the Legislative Council.

3.  On 7 September 2018, the Chief Electoral Officer published a notice in the Gazette that a by-election would be held on 25 November 2018 to return a member for the Kowloon West Geographical Constituency. The 1^st Respondent (“the Returning Officer”) was the returning officer for the By-election.

4.  Ms Lau decided to run in the By-election.  On 2 October 2018, she submitted a duly completed and signed nomination form (“the Nomination Form”) to the Returning Officer in order to run as a candidate in the By-election.  The Nomination Form contained a declaration (“the Declaration”) by her as follows –

“I declare that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

5.  In the Nomination Form, Ms Lau stated, in relation to “Political Affiliation”, that she was affiliated with “Democracy Groundwork/Labour Party” (小麗民主教室 / 工黨).

6.  Ms Lau also submitted a duly signed confirmation form (“the Confirmation Form”) dated 2 October 2018 to the Returning Officer, in which she declared and confirmed, inter alia, the following –

“1. In respect of the above by-election, I have, in accordance with section 40(1)(b)(i) of the Legislative Council Ordinance (Cap. 542), already declared in the nomination form that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.

2. I understand that to uphold the Basic Law means to uphold the Basic Law including the following provisions:

Article 1

The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.

Article 12

The Hong Kong Special Administrative Region shall be a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.

Article 159(4)

No amendment to this Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong.

3. I understand that in accordance with section 103 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D), a person who, in an election related document, makes a statement which that person knows to be false in a material particular or recklessly makes a statement which is incorrect in a material particular or knowingly omits a material particular from an election related document commits an offence. I also understand that this confirmation form will be made available for public inspection together with the nomination form.

4. I hereby confirm that I understand the content of paragraph 2 above and, in particular, the reference to Article 1, Article 12 and Article 159(4) of the Basic Law, and, on that basis, I have declared in the nomination form that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.”

7.  By a “Notice of Decision as to Validity of Nomination” dated 12 October 2018 (“the Decision”), the Returning Officer informed Ms Lau that her nomination as a candidate in the By-election had been declared by him (the Returning Officer) to be invalid, on the ground that he was not satisfied that Ms Lau had duly complied with s 40(1)(b)(i) of the Legislative Council Ordinance, Cap 542 (“the Ordinance”). Essentially, the Returning Officer came to that conclusion having regard to Ms Lau’s previous public statements, declarations and/or conduct which the Returning Officer considered:

“constituted a fundamental inconsistency with the Declaration that she will uphold the Basic Law and pledge allegiance to the HKSAR, and/or had a present intention to do the same. In all the circumstances, I was satisfied that, notwithstanding that [Ms Lau] had signed the Declaration and the Confirmation Form, there was cogent, clear and compelling materials to show that [Ms Lau] did not genuinely and truly intend to uphold the Basic Law and to pledge allegiance to the HKSAR. Accordingly, [Ms Lau] did not make a genuine declaration as required under section 40(1)(b)(i) of the LCO.”[1]

8.  Ms Lau’s previous public statements, declarations and/or conduct referred to and relied upon by the Returning Officer included the following:

(1)  a joint declaration made by Demositō, Mr Chu Hoi Dick and Ms Lau on 30 July 2016 reported in the 15 September 2018 issue of Wen Wei Pao;

(2)  the fact that she did not properly follow the prescribed oath under Article 104 of the Basic Law (“BL 104”) at the first meeting of the 6^th Legislative Council on 12 October 2016;

(3)  her Facebook statement on 13 October 2016; and

(4)  her political platform ([總綱I政治] 政治上公民自強自決) reported in the 14 September 2018 issue of Ming Pao and the 15 September 2018 issue of Wen Wei Pao.

9.  Attached to the Decision was a document titled “Reasons for Ruling LAU Siu Lai’s Nomination as Invalid” (“Reasons for Decision”), a copy of which is attached to this judgment as “Annex I”.

10.  It is not in dispute that the Returning Officer did not give Ms Lau any opportunity to respond to the materials which he relied upon in coming to the Decision.  The Returning Officer explained why he did not do so at §28 of his Affidavit, as follows:

“In view of the matters set out above, I was satisfied that there was cogent and clear evidence to show that [Ms Lau] did not genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR when she signed the Declaration and the Confirmation Form and, after seeking legal advice, I was satisfied that the cogent and clear evidence would be sufficient basis for the determination of the validity of [Ms Lau’s] nomination and it was not necessary to invoke section 10(1) of the EAC Regulation to require [Ms Lau] to furnish any other information.”

11.  As a result of the Decision, Ms Lau was precluded from standing as a candidate in the By-election.  The By-election took place on 25 November 2018, with 5 candidates contesting in the By-election.  The voter turnout rate was 44.45%, with 214,790 valid votes cast. On 26 November 2018, the Returning Office published a “Notice of Result of Election” in the Gazette declaring Chan Hoi Yan (“Ms Chan”) to be elected for the Kowloon West Geographical Constituency.

THE ELECTION PETITION

12.  On 25 January 2019, Ms Lau commenced the proceedings herein to challenge the Decision, and sought the court’s determination on (i) whether Ms Chan declared by the Returning Officer to be elected in the Notice of Result of Election was duly elected, and (ii) if the court should determine that Ms Chan was not duly elected, whether Ms Lau or some other person was duly elected in her place.

13.  In the Election Petition, Ms Lau questions the regularity of the By-election on the following grounds:

(1)  The Returning Officer ought to have regarded any substantive constitutional requirement (which is disputed) to support the Basic Law and pledge allegiance to the HKSAR of the PRC (“the Substantive Constitutional Requirement”) as having been satisfied by the signing and submission of the Declaration and Confirmation Form (“Ground 1”).

(2)  Even if, despite the signing and submission of the Declaration and Confirmation Form, the Returning Officer still had a power to decide that a candidate did not fulfil such substantive requirement: (i) he could only so decide if there were cogent, clear and compelling materials which would demonstrate to an objective reasonable person that Ms Lau plainly did not have that intention at the time of the nomination, (ii) he ought to have given a reasonable opportunity to Ms Lau to respond to any materials which he considered showed that Ms Lau did not have the intention to carry out the obligations under the Declaration, and (iii) he ought to have taken into account those responses before determining whether Ms Lau did not have the requisite intention.  However, the Returning Officer refused and/or failed to provide any reasonable opportunity to Ms Lau to deal with any of the materials he relied upon in arriving at the Decision, as a result of which the Decision was vitiated by procedural irregularity and by infringement of her right to be heard (“Ground 2”).

(3)  Further or in the alternative, if the Returning Officer had given Ms Lau a reasonable opportunity: (i) she would have been able to address the materials relied on by the Returning Officer, and (ii) there would have been no proper basis or materials on which the Returning Officer could have determined that she did not fulfil any substantive requirement to support the Basic Law and pledge allegiance to the HKSAR of the PRC (“Ground 3”).

(4)  The Decision amounted to an infringement of Ms Lau’s rights under Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”), as enacted in Hong Kong as Article 21 of the Hong Kong Bill of Rights (“HKBOR”).  Her right to be elected at periodic elections had been unreasonably restricted by reason of her association or affiliation with a political organization.  Further, her right to be elected at periodical elections had been subject to unlawful distinction on the ground of political or other opinion (in violation of Articles 2 and 25 of the ICCPR, or Articles 1 and 21 of the HKBOR) (“Ground 4”).

THE PARTIES’ RESPECTIVE CASES

(a)    The Petitioner’s case at the hearing

14.  As can be seen from the Skeleton Submissions of Mr Paul Shieh, SC dated 23 April 2020 and as confirmed by him orally at the hearing on 7 May 2020, Ms Lau’s position is that:

(1)  The Returning Officer was not entitled to reject her 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) of the Ordinance.

(2)  Therefore, it is not necessary for the court to determine whether the Returning Officer 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 although, for completeness sake, it is submitted that the Returning Officer fails to show that she did not genuinely and truthfully intend to uphold the Basic Law and pledge allegiance to the HKSAR.

(3)  By reason of the aforesaid, the court is invited to find that material irregularities have occurred in relation to the By-election within the meaning of s 61(1)(a)(iv) of the Ordinance.

15.  At §4 of his Skeleton Submissions, Mr Shieh confirms that Ms Lau does not intend to make further submissions on whether the Returning Officer was entitled, as a matter of law, to go behind the Declaration and Confirmation Form, and examine whether she satisfied the Substantive Constitutional Requirement.  However, Ms Lau will preserve this as a point of contention if the matter should proceed further.  Mr Shieh has not advanced any submission under Grounds 1 and 4.

(b)    The Returning Officer’s case at the hearing

16.  On behalf of the Returning Officer, Mr Johnny Mok, SC argues 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, his decision in disqualifying a candidate was objectively correct.  Further, and especially in a case where the candidate had the opportunity to file such evidence as she considers appropriate to address the materials relied upon by the Returning Officer for his decision, the court is entitled to and should itself take into account the candidate’s evidence (and such responses as the Returning Officer may have given), before determining whether “material irregularity” has occurred and whether the incumbent is “duly elected”[2]. On the facts of this case, Ms Lau had consistently and objectively adopted a political stance which denies the inalienability of the HKSAR from the PRC and the authority of the Government of the PRC over the HKSAR.  This suffices to show that Ms Lau did not genuinely intend to uphold the Basic Law and pledge allegiance to the HKSAR[3]. The Returning Officer was plainly correct in not being satisfied that Ms Lau had met the Substantive Constitutional Requirement and finding her not validly nominated.  The ultimate outcome would have been the same even if Ms Lau had been afforded an opportunity to make representations to the Returning Officer[4]. It follows that Ms Lau has failed to establish that material irregularity had occurred and, in any event, this is an appropriate case for the court to hold that relief should be denied having regard to all the circumstances[5].

(c)    The 2^nd Respondent’s case at the hearing

17.  On behalf of Ms Chan, Mr Mike Lui argues that the court should revisit the approach in Chow Ting and Lau Wing Hong (see below), and find that (i) Ms Lau was rightly qualified in any event regardless of whether she had been given an opportunity to address the materials relied upon by the Returning Officer, and (ii) thus, the irregularity (if any) was “immaterial”[6].

DISCUSSION

18.  The present case is, in my view, indistinguishable from (i) Chow Ting v Teng Yu-Yan Anne (the Returning Officer) [2019] 4 HKLRD 459, and (ii) Lau Wing Hong v Chan Yuen Man Amy (Returning Officer) (No 2) [2019] 5 HKLRD 1.  In Chow Ting, the court held, inter alia, that:

(1)  The requirement that a person, to be validly nominated as a candidate in a Legislative Council election for a geographical constituency, should genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR was a “substantive”, and not a “formal”, requirement.  The mere fact that the candidate had signed a declaration in his/her nomination form to that effect was not conclusive of the matter.

(2)  The 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 was invalid prior to making the decision, and such failure amounted to a material irregularity in the election.

(3)  Assuming, without deciding, that in a situation where a material irregularity in relation to an election had occurred, the court still had a discretion to refuse to grant relief (ie, to find that the elected person was duly elected nonetheless), the court did not consider it appropriate to exercise such discretion on the facts of that case.

19.  The above principles were adopted and applied in Lau Wing Hong.

20.  It cannot seriously be disputed that the Returning Officer ought to have given Ms Lau an opportunity to respond to the materials intended to be relied upon by him prior to making the Decision.  The principle of natural justice requires that a person affected by an adverse decision ought generally to be given an opportunity to make representations prior to the making of the decision.

21.  Mr Mok argues 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.  He further argues that whether Ms Lau was qualified to be nominated as a candidate in the By-election or elected as a member of the Legislative Council is a constitutional question which the court is duty bound to determine, and relies on the judgment of the Court of Appeal in Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460 (“the Leung/Yau Case”) in support of his argument.  It is important, however, to understand the issues that the Court of Appeal had to decide in the Leung/Yau Case.  There, Mr Leung and Ms Yau, two newly elected members of the Legislative Council, purported to take their LegCo Oath in a form which departed substantially from that required under the Oaths and Declarations Ordinance, and their oaths were ruled by the President of the Legislative Council (“the LegCo President”) to be invalid. Nevertheless, the LegCo President allowed them to retake the LegCo Oath if they requested to do so in writing.  Thereupon, the Chief Executive and the Secretary for Justice commenced civil actions seeking, inter alia, (i) declarations that Mr Leung and Ms Yau’s oaths contravened BL 104 and were invalid, and (ii) declarations that they were disqualified from assuming or entering the office of a Legislative Council member, and applied for judicial review of the LegCo President’s decision to allow Mr Leung and Ms Yau to re-take the LegCo Oath.  It was held by the Court of Appeal that taking the LegCo Oath in accordance with BL 104 was a constitutional prerequisite or precondition to the assumption of office of a member of the Legislative Council. Rejecting the argument raised on behalf of Mr Leung/Ms Yau that it was for the oath administrator (ie the Clerk to the Legislative Council or the LegCo President) to determine whether they had taken a valid oath, the Court of Appeal held that the question of whether the constitutional requirement under BL 104 had been satisfied was a matter of law which it was the duty of the court, being the body vested with the judicial powers of the HKSAR, to determine[7].

22.  The issue to be determined in the present Election Petition is different.  Under s 61(1)(a)(iv) of the Ordinance, a “material irregularity” occurring in relation to an election is one of the specified statutory grounds to question whether the person declared to have been elected at the election was, or was not, duly elected.  The primary question that the court has to determine is whether a material irregularity occurred in relation to the election.  While the question of whether a candidate’s nomination was correctly or incorrectly determined to be invalid may be a relevant consideration in the determination of that question, 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.

23.  In this case, whether Ms Lau satisfied the Substantive Constitutional Requirement is relevant to the question of whether her nomination was correctly or incorrectly determined to be invalid.  While the contents of the Substantive Constitutional Requirement is a matter of law, whether she did satisfy such requirement is a question of fact.  The determination of that question of fact is not a straight-forward one such as whether she has reached the age of 21, or whether she is a Chinese citizen and a permanent residence of the HKSAR, being some other eligibility requirements for nomination as a candidate under s 37(1) of the Ordinance.  The determination of whether Ms Lau satisfied the Substantive Constitutional Requirement raises some fine or intricate questions of whether she had sufficiently changed her previous stance and genuinely and truly intended to uphold the Basic Law and pledge allegiance to the HKSAR, being matters which, according to Au J (as he then was) in Chan Ho Tin v Lo King Ki Alan [2018] 2 HKLRD 7, at §§75 and 76, should be determined objectively.

24.  Mr Mok 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 Legislative Council election.  To use the terminology of counsel, a person may “repent”.  Whether a person has “repented” is this sense is a matter to be determined, in the first instance, by the returning officer and not the court.  That this is so is clear from the judgment of Au J in Chan Ho Tin, supra, at §§80, 105-106, 114 and 118:

“[80] In other words, a Returning Officer should generally regard a candidate to have complied with the substantive Declaration requirement when the candidate has submitted a nomination form with the signed Declaration. The Returning Officer should only conclude otherwise if there is such cogent, clear and compelling evidence which plainly shows objectively that the candidate, notwithstanding the signed Declaration, does not have the intention at the time of the nomination to uphold the Basic Law and swear allegiance to the HKSAR. Needless to say (and Mr Yu has not sought to submit otherwise), fairness requires that generally the Returning Officer should give a reasonable opportunity to the candidate to respond to any materials that the Returning Officer says are contrary to an intention to carry out the obligations under the Declaration. The Returning Officer should then take into account those responses before determining whether there are such cogent, clear and compelling materials to show objectively that the nominee plainly does not have the requisite intention despite the signed Declaration.

[105] Hence, once it is decided (as I have concluded above) that on proper construction, the Declaration requirement is a substantive one under section 40(1)(b)(i), it is difficult to see how it can be said that the Returning Officer would have no statutory power to determine whether that has been satisfied by a nominee substantively. This is particularly so as section 40 provides expressly that a nominee is ‘not validly nominated’ if, among others, the Declaration requirement is not satisfied, while section 38(5) of the LCO expressly vests in the Returning Officer the duty (as he ‘must’), and thus the power, to determine whether or not a nominee ‘is validly nominated’.

[106] Further, under section 10(10) of the EAC Regulation, the RO is given the statutory power to require a candidate to furnish any other information that the Returning Officer considers appropriate to be satisfied (a) that the candidate is eligible to be nominated as a candidate; or (b) as to the validity of the nomination. Hence, the Returning Officer is also provided expressly with the statutory power to ask for more information to aid his determination as to whether a prospective candidate’s nomination is valid, including whether the candidate has complied substantively with the Declaration requirement.

[114] It is plain from these provisions that the legislature does make a distinction between the validity of the nomination form and the validity of the nomination itself. It is however similarly clear that it is for the Returning Officer to determine both. In some of these provisions, as pointed out by Ms Li, the legislature has set out certain considerations for the Returning Officer to determine whether the nomination form is valid (see for example, sections 16(3)(a) and (c)) … But this is for the purpose of determining the ultimate question of whether the nomination itself is a valid one…

[118] For these reasons, I reject the RO’s Power Argument and conclude that the RO had the relevant statutory power and was under a statutory duty to determine whether Mr Chan’s nomination complied with the substantive Declaration requirement. In doing so, he was entitled to look at matters beyond the formal compliance of the nomination form to come to a view as to whether Mr Chan at the time of the nomination intended to uphold the Basic Law and to pledge allegiance to the HKSAR.” [emphasis added]

25.  In the present case, the Returning Officer has not stated, expressly in his affidavit, that had he given Ms Lau an opportunity to make representations and she had given those explanations now advanced by her in these proceedings, he would still have reached the same conclusion that Ms Lau did not genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR at the time of submission of the Nomination Form.  The Returning Officer has commented on various aspects of MS Lau’s explanations, but has stopped short of making a clear and unequivocal statement that, notwithstanding her explanations, he would still have come to the same conclusion. It does not seem to me that the answer to the question of whether Ms Lau satisfied the Substantive Constitutional Requirement at the time of submission of the Nomination Form, taking into account her explanations, is as clear as suggested by Mr Mok, regardless of whether it is to be determined by a returning officer in the first instance or by the court ultimately.  It is not, however, necessary to reach a final conclusion on this matter because (as earlier mentioned), the “outcome” is only one of the relevant considerations in determining whether a material irregularity has occurred.

26.  In determining the “materiality” of the irregularity in this case, it is important to bear in mind the nature of the right affected by the Decision, namely, the fundamental right to stand in an election protected by BL 26 and HKBOR 21(b), and the importance of the principles of natural justice or procedural fairness.  There was no urgency that I can see which would make it impracticable for the Returning Officer to give Ms Lau a proper opportunity to respond before making a decision which adversely affected her fundamental right.  The court should be very cautious in accepting an argument that because the same result would have been reached in any event it was not necessary to give the person adversely affected a proper opportunity to be heard.  The unfairness of the situation is obvious, and the court should be slow in sanctioning an unfair practice.  In my view, these matters override the consideration of whether the Decision of the Returning Officer was, strictly speaking, correct or incorrect.

27.  Mr Lui argues that in an election petition, the court has no discretion not to determine whether the elected candidate was duly elected, and relies on §22 of the judgment of Cheung PJ in Au Nok Hin v Teng Yu Yan Anne (2019) 22 HKCFAR 524[8], in support of his argument:

“Secondly and more fundamentally, section 67(2) of the Ordinance states that at the end of the trial of an election petition relating to a contested election, the court ‘must’ determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead. There is no room for the court not to make a determination on whether the elected candidate has been duly elected. There is no discretion not to so determine. It should not be confused with the making of a declaration which is a discretionary matter. The only formal requirement for the court’s determination under section 67(2) is that it must be announced by means of a written judgment. Whether the court makes a declaration in terms of the determination is unimportant for the purpose of deciding what is to happen after the court’s determination. It is the court’s determination, as required by section 67(2), which matters.”

28.  Mr Lui also relies on footnote 20 to the above passage, which stated as follows:

“The judge mentioned ‘a discretion to refuse to grant relief’ in paragraphs 41 and 42 of his judgment in HCAL 804/2018 ([2019] 4 HKLRD 459) when dealing with the question of whether Ms Chow would have been disqualified in any event even if she had been given a fair opportunity to be heard. Correctly analysed, this was a question going to the materiality of the procedural breach rather than the exercise of any ‘discretion’ on ‘relief’. No such ‘discretion’ exists.”

29.  To properly understand these statements, I shall set out the material parts of what the court stated at §§40 to 42 of the judgment in Chow Ting:

“[40] Mr Shieh has drawn my attention to the judgment of Cheung JA in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 at [39], in which reference was made to the judgment of Bingham LJ (as he then was) in R v Chief Constable of Thomas Valley, ex p Cotton [1990] IRLR 344 and his article titled ‘Should Public Law Remedies be Discretionary’ to explain why it would be rare that someone who was denied the opportunity to be heard would be held not to have been treated unfairly …

[41] The learned judge was there discussing the matter in the context of an application for judicial review. Assuming, without deciding, that the court also has a discretion to refuse to grant relief in an election petition where a material irregularity has been found (which Mr Shieh has not argued otherwise), it seems to me that similar considerations should apply when the court comes to decide whether to exercise the discretion to refuse to grant relief.

[42] While I would not rule out the possibility that the court may, in some exceptional circumstances, find that the fairness and integrity of an election has not been compromised even where a candidate was denied an opportunity to be heard prior to his nomination being declared to be invalid by a returning officer, having regard to the circumstances of the present case as set out in paragraphs 30 to 39 above, I do not consider this to be an appropriate one for the court to pre-empt the decision of the Returning Officer on whether to (i) accept the Explanation of Ms Chow, or (ii) find that it would have made no difference to the outcome had she given Ms Chow a reasonable opportunity to put forward the Explanation prior to making the Decision. Accordingly, I do not consider it appropriate for the court to exercise its discretion to refuse to grant relief in the present case.” [emphasis added]

30.  My understanding of what Cheung PJ said at §22 of his judgment in Au Nok Hin and his footnote 20 is that, in an election petition, the court has no discretion not to determine whether the elected candidate was, or was not, duly elected (in other words, the court cannot refuse to rule on that matter), and in that sense there is no “discretion” on relief.  As a matter of fact, in both Chow Ting and Lau Wing Hon, the court did determine that the elected candidates (Mr Au and Mr Fan) had not been duly elected, and no other person had been duly elected instead.  On the other hand, the question of whether, assuming that a materiality irregularity has occurred, the court still has a discretion to hold that the elected candidate was, nevertheless, duly elected, or is bound to hold that the elected candidate was not duly elected, is a different question.  In Chow Ting, the court expressly left open that question because it was not argued by counsel.  The discussion at §§41 and 42 in Chow Ting proceeded on the assumption that the court had such a discretion, but (as pointed out by Mr Shieh) the court went on to hold that it would not be prepared to exercise it on the facts of that case.  In my view, Mr Lui’s argument that in an election petition, the court has no discretion not to determine whether the elected candidate was, or was not, duly elected, while correct in itself, does not advance his client’s case any further.

31.  Mr Mok argues that the present case is exceptional because Ms Lau was disqualified from the very office which the By-election was concerned with, and she was “henceforth disqualified from assuming the office of member of the 6^th Legislative Council (Kowloon West geographical constituency), which has a term of office of 4 years, commencing in 2016”[9] (in other words, “disqualified from standing for election in respect of, or taking up, this particular office (defined by the constituency and the particular Legislative Council with a four-year term”), although she would not be disqualified “from any other office or the office of a member of a new Legislative Council”[10].

32.  I am unable to accept this argument of Mr Mok.  There is nothing in either the judgment of Au J in the 4 Oath Takers Case, or the judgment of the Court of Appeal in the Leung/Yau Case, to support the proposition advanced by Mr Mok.  In fact, in the 4 Oath Takers Case, Au J only found, at §159 of his judgment, that Ms Lau “did not manifest an intention to genuinely and faithfully accept (and hence commit and bind herself to) the obligations of the pledges embodied in the LegCo Oath” and thus she had “clearly failed to comply with the Substantive Belief Requirement”. This finding was directed at, and limited to, the LegCo Oath taken by Ms Lau on 12 October 2016, and cannot be treated as a general finding against her ability to satisfy the Substantive Constitutional Requirement.  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, the full text of which has been set out in footnote 1 to the judgment of the Court of Appeal in the Leung/Yau Case, to support the argument of Mr Mok.  His argument would also lead to the illogical result that while Ms Lau was not qualified to stand as a candidate in the By-election to return a member of the 6^th Legislative Council for the Kowloon West Geographical Constituency, she would be qualified to stand as a candidate in any other by-elections to return a member of the 6^th Legislative Council for other Geographical Constituencies, even though her fitness or properness to act as a member of the Legislative Council would be exactly the same.  In fairness to Mr Mok, I should mention that he made it clear that his argument could, logically, be extended to mean that Ms Lau might be disqualified for being nominated or taking up any office mentioned in BL 104, and her disqualification might not be confined to the particular office of member of the 6^th Legislative Council for the Kowloon West Geographical Constituency.

33.  Overall, I consider it to be clear that there was a material irregularity in relation to the By-election by reason of the Returning Officer’s failure or refusal to give Ms Lau a proper opportunity to respond to the materials intended to be relied upon by him prior to making the Decision, regardless of whether the Decision was, strictly speaking, correct or incorrect.  I also find that Ms Chan was not duly elected in the By-election.

34.  Having reached the above conclusion, it is not necessary for the court to determine (i) the proper approach which the court should adopt in determining whether the Returning Officer was right or wrong to conclude that Ms Lau did not have the requisite intention to uphold the Basic Law and pledge allegiance to the HKSAR, and (ii) whether, on the facts of this case, the Returning Officer was right or wrong to reach that conclusion.  The former question is of some general importance but does not require determination in the present case.

DISPOSITION

35.  For the foregoing reasons, I allow the Election Petition, and declare that (i) the 2^nd Respondent was not duly elected as a member of the Legislative Council for the Kowloon West Geographical Constituency as stated in the Notice of Result of Election published in the Gazette on 26 November 2018, and (ii) neither the Petitioner nor any of the candidates standing in the By-election was duly elected in her place.

36.  The parties are agreed that costs should follow the event.  Accordingly, I make an order that the 1^st and 2^nd Respondents shall pay the costs of the Petitioner in these proceedings, including all reserved costs (if any), to be taxed if not agreed, with certificate for two counsel.

Annex I

Reasons for Ruling LAU Siu Lai’s Nomination as Invalid

1.  Section 40(1)(b)(i) of the Legislative Council Ordinance (Cap.542) provides that a candidate is not validly nominated unless the nomination form includes a declaration (“Declaration”) to the effect that the candidate will uphold the Basic Law (“BL”) and pledge allegiance to the Hong Kong Special Administrative Region (“HKSAR”) of the People’s Republic of China (“PRC”). The declaration is contained in section 5 of Part II of the nomination form. Miss LAU submitted the duly signed declaration on 2 October 2018 together with the Confirmation Form, which has been prepared by the Electoral Affairs Commission for the use of the Returning Officer, in order that every candidate may confirm that in signing the relevant declaration in the nomination form, he/she has clearly understood Articles 1, 12 and 159(4) of the BL, the legal requirements and obligations.

2.  In the judgment of an election petition Chan Ho Tin v Lo Ying-ki Alan and others [2018] 2 HKLRD 7, the Court of First Instance (“CFI”) held, inter alia, that

(a)  there is a clear constitutional intention and objective of imposing a substantive requirement, and indeed necessary legal requirements and preconditions for candidature, that a person must support the Basic Law of the HKSAR of the PRC and pledge allegiance to the HKSAR of the PRC; and

(b)  the Declaration requirement should generally be regarded as having been complied with if a candidate has submitted the nomination form with a signed Declaration. This should and can only be displaced in a plain case where, albeit on a balance of probabilities, there are cogent, clear and compelling materials which would demonstrate to an objective reasonable person that the candidate plainly cannot have that intention at the time of the nomination.

3.  When considering the validity of Miss LAU’s nomination, I have taken all relevant factors into account, with the objective of ascertaining whether Miss LAU has the requisite intention to uphold the BL and pledge allegiance to the HKSAR of the PRC at the time of nomination.

4.  I notice that in the joint declaration made by Demositõ (香港眾志), CHU Hoi Dick and Miss LAU on 30 July 2016 (reported in the 15 September 2018 issue of Wen Wei Pao) which was after the close of the nomination period of the 2016 Legislative Council Election (“LCE”), it is stated, inter alia, that:-

(a)   “我們的共同政治綱領是「民主自決」，民主自決的政治意義本就是要超越所有對人民的限制，包括是《基本法》的限制，以民主的方式讓人民決定自身的命運和香港前途。…若香港人要決定未來，自主命運和前途選項，我們不得不從「《基本法》是唯一基礎」的思想框架中掙脫，香港的命運應由香港人決定，而非《基本法》，更非北京或香港政府。”; and

(b)  “我們必定捍衛「香港獨立」作為港人自決前途的選項。”.

5.  I consider that, by making the above statements, Miss LAU did not accept the PRC’s sovereignty over Hong Kong. It is also clear that Miss LAU had stated that independence could be an option for Hong Kong.

6.  In addition, I also notice that Miss LAU did not properly follow the prescribed BL 104 oath at the first meeting of the Legislative Council (“LegCo”) on 12 October 2016. In Chief Executive of HKSAR & SJ v President of LegCo[2017] 4 HKLRD 115, the CFI ruled that Miss LAU “has since 12 October 2016 been disqualified from assuming and entering on the office of a member of the LegCo or has vacated the same, and is not entitled to take the LegCo Oath afresh”.

7.  As quoted in the CFI judgment, Miss LAU posted a Statement on her Facebook on 13 October 2016 which stated, inter alia, “謊言的核心，正是特區政府的整個政制，表面上有合法性，其實一點都無！整個基本法，整個政制連特首，都未經過港人民意授權，所以根本非法！”. Such Facebook Statement was relevant in ascertaining the intention of Miss LAU in the oath-taking incident. The CFI had no hesitation in coming to the conclusion that, objectively looking at the manner and way in which she purported to take the LegCo Oath and as subsequently confirmed by her Facebook Statement, Miss LAU did not comply with the substantive belief requirement in taking the LegCo Oath.

8.  The joint declaration and the Facebook Statement as read together show that it is questionable if Miss LAU genuinely upheld the BL at the time when the joint declaration and the Facebook Statement were made. The joint declaration, the oath-taking incident and the Facebook Statement posted on 13 October 2016 (which were all public acts carried out after her signing the Declaration in 2016) must be taken into account in the consideration of whether Miss LAU has the professed present intent to uphold the BL.

9.  It has also come to my attention that in Miss LAU’s “【總綱I政治】政治上公民自強自決” (reported both in the 14 September 2018 issue of Ming Pao and the 15 September 2018 issue of Wen Wei Pao), she suggests the doctrines of “政治上公民自決” (political self-strengthening and self-determination) and the idea that “香港人有政治自決的權利”, (Hong Kong people have the right of political self-determination).

10.  The courts of the HKSAR have repeatedly confirmed that it is indisputable that China has always had the right to claim sovereignty over Hong Kong (and now the HKSAR). Under the BL (more specifically the Preamble, BL 1 and BL 12), the HKSAR is an inalienable part of the PRC. To deny the PRC of having such right over Hong Kong is, in essence, to not accept a unitary state of the PRC, thus to not uphold the BL. Reading together the statement “中共對香港並沒有自有的、不需尊重香港人意願的主權與統治權。”, in the 總綱 and the sentence of “我們不得不從「《基本法》是唯一基礎」的思想框架中掙脫，香港的命運應由香港人決定，而非《基本法》，更非北京或香港政府。” in the joint declaration, Miss LAU clearly does not in essence accept the legitimacy of the authority of the Central People’s Government (“CPG”) over the HKSAR.

11.  I consider that the joint declaration, the oath-taking incident in 2016 (which is reinforced by her Facebook Statement posted on 13 October 2016) and the 總綱 should be considered together as reflecting Miss LAU’s political stance over a sustained period of time, and that Miss LAU has been consistently holding the same political stance (i.e. independence of Hong Kong being one of the options she is asking for). Miss LAU’s consistent political stance referred to in paragraphs 4 to 10 above throughout the past two years casts clear doubts on her intention to uphold the BL and to pledge allegiance to the HKSAR recently professed by way of signing the Declaration (contained in the nomination form) and the Confirmation Form.

12.  I notice from various recent press reports that the 總綱 has been removed from Miss LAU’s website 小麗民主教室 sometime in September 2018. However, I consider that the recently removed 總綱 has been part of Miss LAU’s consistent political stance for a sustained period of time. Ever since the oath-taking incident in 2016, Miss LAU has not taken any step to disassociate herself from such political stance until very recently.

13.  Miss LAU has publicly declared on 20 September 2018 her intention to stand as a candidate in the upcoming LegCo By-election and claimed that she has not ever supported independence of Hong Kong (重申自己從來不支持港獨). Based on the recent news reports (e.g. the 21 September 2018 issue of the Hong Kong Economic Journal), Miss LAU specifically referred to her so-called “政制自決” to mean “落實選行政長官等，也提倡「生活自主」及「社會自強」，即是要為市民爭取標準工時、良好退休保障等目標。”. Similar news report is found in the 14 September 2018 issue of Ming Pao that “劉小麗昨重申不支持港獨，強調自己支持的自決，是「生活上有自主、社會自強」，以及香港要有高度自治，鞏固一國兩制，自己從沒有提倡「主權自決」或公投。”.

14.  I have considered whether the recent removal of the 總綱 from the website 小麗民主教室 in the light of Miss LAU’s statement on 20 September 2018, is a manifestation of Miss LAU having genuinely jettisoned her previous political stance (which contradicted an intention to uphold the BL and pledge allegiance to the HKSAR of the PRC). I note that the 總綱 was removed only recently, i.e. closely before 20 September 2018 when Miss LAU publicly declared her intention to stand as a candidate in the upcoming By-election and shortly after which she also signed the Declaration and the Confirmation Form on 2 October 2018. Having considered the timing of the removal and the duration during which her political stance has been publicly known since July 2016. I consider that Miss LAU has not changed her political stance (which has consistently been favourable towards Hong Kong independence) and that the removal of the 總綱 and her statements on 20 October 2018 serve nothing more than a ploy to reduce the risk of an adverse decision on the validity of her nomination. When looking at all the materials in totality, I consider that Miss LAU’s political stance has been consistently the same, i.e. (a) letting Hong Kong people decide their future with independence of Hong Kong being one of the options and (b) a non-acceptance of CPG’s authority over the HKSAR at all.

15.  Having considered the above and the legal advice obtained, I am not satisfied that Miss LAU duly complied with section 40(1)(b)(i) of the Legislative Council Ordinance in making the Declaration. I therefore decide that Miss LAU Siu Lai is not validly nominated.