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陳浩天選舉呈請敗訴 法官區慶祥判決書全文

2018/2/13 — 15:47

香港民族黨召集人陳浩天2016年參選立法會選舉新界西直選時,因未簽下確認書被指提倡港獨遭拒選。陳不服選舉主任決定而提選舉呈請,高等法院法官區慶祥今天下達裁決和判詞,裁定陳浩天敗訴。本文為判決書英文版全文。

HCAL 162/2016

[2018] HKCFI 345

廣告

 

          IN THE HIGH COURT OF THE

廣告

          HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

          CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

          NO 162 OF 2016

                                          ________________

 

BETWEEN

 

                                              CHAN HO TIN                              Petitioner

 

                                                       and

 

                                         LO YING-KI ALAN                  1st Respondent

                            (Returning Officer for New Territories

                                 West Geographic Constituency)

 

                                      CHU HOI DICK EDDIE              2nd Respondent

 

                                   TIEN MICHAEL PUK SUN           3rd Respondent

 

                                           CHAN HAN PAN                   4th Respondent

 

                                        CHENG CHUNG TAI                5th Respondent

 

                                      LEUNG CHE CHEUNG              6th Respondent

 

                                     MAK MEI KUEN ALICE             7th Respondent

 

                                              KWOK KA KI                      8th Respondent

 

                                     WAN SIU KIN ANDREW             9th Respondent

 

                                            HO KWAN YIU                   10th Respondent

 

                                                    ________________

 

 

Before: Hon Au J in Court

Dates of Hearing: 9 - 11 May 2017

Further Written Submissions: 17 and 19 May 2017

Date of Judgment: 13 February 2018

 

 

J U D G M E N T

 

 

  1. INTRODUCTION
  2. Mr ‍Chan‍ Ho‍ Tin is the convenor of the Hong Kong National Party (“HKNP”). The HKNP was established to, among others, advocate the independence of Hong Kong from the People’s Republic of China (“PRC”) and nullify the Basic Law.
  3. He decided to seek nomination as a candidate to stand for election to be a member of the Legislative Council (“LegCo”) in the General Election for the New Territories West Geographical Constituency (“the NTWGC Election”), which was to be held on 4‍ September 2016.
  4. On 18‍ July 2016, Mr‍ Chan submitted his nomination form for the nomination as a candidate. As required by section‍ 40(1)(b)(i) of the Legislative Council Ordinance (Cap ‍542) (“the LCO”), the signed nomination form included a declaration (“the Declaration”) that Mr ‍Chan “will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.
  5. However, on 30‍ July 2016, the Returning Officer, Mr ‍Lo (“the RO”) (the 1st ‍respondent herein) decided that Mr ‍Chan’s nomination was invalid. The RO conveyed the written decision (“the Decision”) with reasons to Mr ‍Chan by email.  The RO in substance explained that, given Mr ‍Chan’s stance in advocating Hong Kong’s independence from the PRC and the abolition of the Basic Law, he was satisfied that Mr ‍Chan “does not in fact uphold or intend to uphold the Basic Law”.  The RO therefore concluded that Mr ‍Chan did not in fact make the Declaration in law that conformed with the requirement of section ‍40(1)(b)(i) of the LCO (“section ‍40(1)(b)(i)”) notwithstanding he had signed it.
  6. The NTWGC Election was subsequently held on 4 ‍September 2016, and the RO declared that the 2nd to 10th ‍respondents herein to be elected.
  7. Mr ‍Chan filed this election petition on 9‍ September 2016.
  8. In the petition, Mr ‍Chan says the Decision to invalidate his nomination is unlawful and amounted to various material irregularities to the election. He therefore asks the court to declare that the NTWGC Election result is void because of the irregularities and that the 2nd to 10th ‍respondents were not duly elected. 
  9. Mr ‍Chan is represented by Ms‍ Gladys‍ Li‍ SC, leading Mr ‍Azan Marwah and Mr Randy Shek at this hearing.
  10. The RO, represented by Mr ‍Benjamin Yu ‍SC (together with Mr‍ Johnny ‍Mok ‍SC, Mr ‍Abraham‍ Chan and Mr ‍Jenkin‍ Suen), opposes the election petition. All the other respondents remain neutral and do not appear at the hearing, except Mr ‍Ho (the 10th ‍respondent, who is represented by Mr ‍Sunny‍ Chan).  Mr ‍Ho’s attendance was only to the extent of seeking to file an affirmation of Mr ‍Ho to introduce certain newspaper reports effectively to support the RO’s position.  Ms‍ Li opposes the filing of this affirmation, but agrees to have it referred to on de bene esse basis for the purpose of the hearing.
  11. Before looking at the arguments raised in this petition, it is important to set out the largely undisputed relevant facts leading to the petition to put the matter in proper context.
  12. THE RELEVANT FACTS
  13. Mr ‍Chan was born in Hong Kong and graduated from the Hong Kong Polytechnic University in 2015. Mr ‍Chan says he formed the HKNP with other like-minded Hong Kong people because there was no other political party in Hong Kong that reflected their political views.
  14. The stated object of the HKNP is to, among others, “further the secession of Hong Kong from the [PRC] and form a free Hong Kong Republic”, and “nullify the Basic Law, which is not authorized by the Hong Kong people”.
  15. Other than advocating the independence of Hong Kong from the PRC, it is Mr ‍Chan’s position that the HKNP’s platform also includes other policies, such as support for the arts and the abolition of functional constituencies and the Mandatory Provident Fund Schemes.
  16. On 10‍ June 2016, the Election Affairs Commission (“the EAC”) published a notice announcing that the General Election would be held on 4 ‍September 2016.
  17. The nomination period for the General Election was to run from 16 to 29 ‍July 2016. Under section‍ 10 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap ‍541D) (“the EAC Regulation”), a person must submit a nomination form in the form specified by the EAC if he or she wishes to be nominated as a candidate in the election.
  18. As mentioned above, in accordance with section‍ 40(1)(b)(i), for a nomination to be valid, the nomination form must include or be accompanied by, among others, the Declaration. Under section ‍40(2) of the LCO, the nominee must sign the Declaration.
  19. Further, for the purposes of the General Election, the EAC had prepared a confirmation form (“Confirmation Form”) for the use of the Returning Officers.[1] Candidates in the General Election were requested to sign and submit the Confirmation Form to the respective Returning Officers.
  20. The Confirmation Form in substance requires a nominated candidate to confirm that he or she makes the Declaration in the nomination form on the basis that he or she understands that to uphold the Basic Law includes upholding its Articles ‍1, 12 and 159(4) (with those provisions fully set out in the Confirmation Form), and that he or she commits a criminal offence under section ‍103 of the EAC Regulation if he or she knowingly or recklessly makes a false statement in an election related document.
  21. Mr Chan submitted the requisite nomination form on 18‍ July 2016. The nomination form, accompanied with the Declaration, was signed by Mr‍ Chan, declaring that he “will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.  He did not sign the Confirmation Form nor return it to the RO.
  22. After having received Mr ‍Chan’s nomination form, the RO sent a letter dated 25 ‍July 2016 (“the RO’s 25 ‍July Letter”) to Mr ‍Chan. The RO stated in it that he had reviewed various materials[2] that related to Mr ‍Chan and the HKNP, which showed that he and the HKNP advocated the independence of Hong Kong, the abolition of the Basic Law, and the use of the participation of the election as the first step to push for Hong Kong’s independence.  The RO had attached some of these materials to the letter for Mr ‍Chan’s reference.  The RO also noted that Mr‍ Chan had refused to sign the Confirmation Form.
  23. After drawing Mr ‍Chan’s attention to the above, the RO in the letter further asked Mr ‍Chan to answer this question (“the Question”):

“問題:你是否承認,雖然你簽署了提名表格上擁護《基本法》和保證效忠香港特別行政區的聲明,但事實上你仍然繼續主張和推動香港獨立?”

(English translation: “Question: Do you admit that, although you have signed the declaration in the nomination form to the effect that you uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region, as a matter of fact, you still continue to advocate and push for the independence of the Hong Kong Special Administrative Region?”)

  1. The RO stated that he would consider the validity of Mr ‍Chan’s nomination after considering this reply to the question and all the relevant materials.
  2. On 26 ‍July 2016, Mr‍ Chan and his legal representatives (“D&A”) respectively sent the RO a letter in reply. In these replies, they in essence stated that:
  • Mr‍ Chan would not answer the Question;
  • by signing the Declaration Mr ‍Chan had already complied with the legal requirements of the LCO;
  • the RO was only permitted to consider the criteria set out in section ‍16(3) of the EAC Regulation, and that the RO had taken into account extraneous or irrelevant matters when exercising his duties under section ‍16 of the EAC Regulation, namely Mr ‍Chan’s political views;
  • Mr‍ Chan enjoyed the right to stand for election and the right to freedom of expression without any discrimination or distinction based on political opinion and without unreasonable restrictions; and
  • the RO was invited to explain how a candidate’s intention to “continue to promote and push the independence of Hong Kong” bore on the validity of his or her declarations under section ‍40(l)(b)(i) and that upon receipt of the RO’s reply Mr ‍Chan would consider furnishing him with further information.
  1. On 27 ‍July 2016, the RO further sent a letter to Mr ‍Chan explaining that the general legal and factual basis of the Question had been set out in the RO’s 25 ‍July Letter and that unless he should hear from Mr ‍Chan further, he would proceed to make a decision on the validity of his nomination in accordance with all relevant laws and materials. The RO also copied this letter to D&A.
  2. On 29‍ July 2016, D&A sent a letter to the RO stating that Mr ‍Chan’s position had been clearly explained and requesting the RO to inform Mr ‍Chan his decision with reasons immediately.
  3. On 30‍ July 2016, one day after the nomination period ended, the RO by email provided Mr‍ Chan with the Notice of Decision as to the Validity of Nomination, informing Mr‍ Chan that it was decided that his nomination was invalid. The RO’s written reasons (“the Reasons”) for the Decision were attached to the Notice.  They are as follows (as translated):

Grounds for Invalidation Decision of Candidate Chan Ho Tin’s Nomination

  1. Section 40(l)(b)(i) of the Legislative Council Ordinance provides: A candidate’s nomination form must include a declaration to the effect that the person will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region (the ‘Declaration’), otherwise the person shall not be validly nominated as a candidate. The Declaration is set out in Paragraph 5, Part 11 of the nomination form.
  2. Though candidate Chan Ho Tin has signed the Declaration in the document, I have learnt from media coverage and the videos and posts published on the social network by him and/or the Hong Kong National Party that he alleges to be politically connected that he and the Hong Kong National Party for which he serves as the convener have on many occasions publicly published views (including the manifesto of the party), clearly announcing their intentionto advocate Hong Kong independence, abolish the Basic Law and regard participation in the Legislative Council Election as the first step to promote Hong Kong independence.
  3. Besides, the Electoral Affairs Commission has prepared a confirmation form to be used by returning officers to confirm that every candidate clearly understood Articles ‍1, 12 and 159(4) of the Basic Law as well as the legal requirements and related obligations upon signing the Declaration in the nomination form. According to the content of the confirmation form, a candidate confirms that he or she understands and upholds the Basic Law including the above articles and makes the Declaration in the nomination form accordingly. When Mr.‍ Chan submitted the nomination form, I gave him two days’ time to submit the duly signed confirmation form. Up to now, I have not received the duly signed confirmation form from Mr. ‍Chan and I have also learnt that Mr. ‍Chan has publicly stated that he would not sign the confirmation form.
  4. In consideration of the above, pursuant to Section ‍10(10) of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, I ‍emailed Mr.‍ Chan on 25 ‍July to request him to answer a question for my consideration of whether his nomination is valid. The email has been attached to the nomination form for public inspection.
  5. On 26 ‍July, Mr.‍ Chan and his legal representative respectively made a reply to my email dated 25 ‍July. Mr. ‍Chan refused to answer my question. He and his legal representative alleged that there was no legal ground for me to ask him that question and reminded me that I had to handle Mr.‍ Chan’s nomination according to law and take into consideration of his right to be elected, freedom of speech and social equality under the Basic Law. After consulting the Department of Justice. I ‍believe that I have already specified the relevant laws and the factual basis with regard to my request to Mr. ‍Chan to answer the question in my email dated 25 ‍July. Therefore, I continue to handle Mr. ‍Chan’s nomination according to all relevant laws and information.
  6. In the meanwhile, I noticed that in the afternoon of 24 ‍July, Mr. ‍Chan held a press conference to formally announce his participation in the election. In the afternoon of the same day, he and the Hong Kong National Party published posts and videos on the social network to indicate that they were participating the election with Hong Kong independence as the agenda. The press release issued by Hong Kong National Party on the same day contains the following:

‘Announcement by Chan Ho Tin, the Convenor, of running the 2016 LegCo Election

The Party held a press conference at its Tuen Mun’s place on 24‍ July 2016, announcing its plan for the 2016 General Election of the Legislative Council (‘LegCo’). Chan Ho Tin, the Convenor of the Party, will run the election in the New Territories West geographical constituency.

Secession from China being the only way out for Hongkongese

The Party announced its establishment on 28 ‍March2016, being the first political party with the independence of Hong Kong as its objective... The Party holds that, under the situation, secession from China is the only way out for Hongkongese.

Governing visions of the Party

The Party is of the view that policies in favour of Hongkongese can only be effectively implemented if Hongkongese can exercise their own sovereignty and build their own sovereign state.’

Besides, Mr. ‍Chan made his election announcement on his Facebook page on the same day which, clearly pointed out that Mr. ‍Chan’s participation in the election was regarded as the first step to promote Hong Kong independence.

  1. Mr.‍ Chan also held a press conference in the evening of 26‍ July to explain the content of the replies of him and his legal advisor to me and made clear that his signing of the Declaration on upholding the Basic Law and pledging allegiance to the Hong Kong Special Administrative Region was only a ‘political operation’. What he advocates remains supporting Hong Kong independence and abolishing the Basic Law. The relevant materials are now attached to the nomination form for public inspection.
  2. In consideration of whether Mr. ‍Chan’s nomination conformed with the requirement of Section‍ 40(l)(b)(i) of the Legislative Council Ordinance, I noticed and had to consider the above matters.
  3. As indicated in the legal opinion obtained from the Department of Justice, the Basic Law was formulated for the purpose of establishing the Hong Kong Special Administrative Region as an inalienable part of the People’s Republic of China in accordance with the principle of ‘One Country, two Systems’ and exercising a high degree of autonomy. The above-mentioned provisions of the Basic Law clearly reflect such purpose. Mr. ‍Chan advocates, supports and promotes Hong Kong independence, which is obviously incompatible with the purpose of formulating the Basic Law and the above-mentioned provisions (Articles ‍1, 12 and 159(4) being read together). Even with due regard to the right to be elected and freedom of speech that permanent Hong Kong residents enjoy under the Basic Law, it fundamentally contravenes the Basic Law. Therefore, I am satisfied that Mr.‍ Chan does not in fact uphold or intend to uphold the Basic Law.
  4. Having considered all the above matters and obtained legal opinions from the Department of Justice, I believe that though Mr.‍ Chan has signed the Declaration in the document, he did not in fact made the Declaration in law that conforms with the requirement of Article 40(l)(b)(i) of the Legislative Council Ordinance. Hence I must decide that candidate Chan Ho Tin’s nomination is invalid.” (emphasis added)
  5. In gist, the RO’s reasons are that, having considered (a)‍ the relevant materials which showed that (i)‍ both Mr‍ Chan and the HKNP openly advocated and promoted the independence by succession of Hong Kong from the PRC and the nullification or abolition of the Basic Law; and (ii) ‍he described the signing of the Declaration as “政治操作” (political manoeuvre); together with (b)‍ his refusal to sign the Confirmation Form; (c)‍ his refusal to answer the Question; and (d)‍ having obtained legal advice from the Department of Justice (“the DOJ Legal Advice”), he was satisfied that Mr ‍Chan “does not in fact uphold or intend to uphold the Basic Law”. Thus, notwithstanding the signed Declaration, Mr ‍Chan had failed to make a declaration which conformed with the requirements of section ‍40(1)(b)(i).  The RO therefore decided that Mr‍ Chan’s nomination was invalid.
  6. THIS ELECTION PETITION

C1.    The grounds in support of the petition

  1. Under section ‍61 of the LCO, an election to return a member of the LegCo may only be questioned by way of election petition lodged under section ‍62 and only on the following grounds:
  • the person declared to have been elected was ineligible to be, or was disqualified from being, a candidate at the election (section ‍61(1)(a)(i));
  • corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election (section‍ 61(1)(a)(ii));
  • corrupt or illegal conduct was generally prevalent at or in connection with the election (section‍ 61(1)(a)(iii));
  • material irregularity occurred in relation to the election, or to the polling or counting of votes at the election (section‍ 61(1)(a)(iv)); or
  • a ground specified in any other enactment that enables an election petition lodged.
  1. In the present petition, Mr ‍Chan relies only on challenges based on purported material irregularities in relation to the NTWGC Election concerning the Decision to invalidate his nomination. He has stated five irregularities in the petition:
  • The RO’s rejection of a nomination paper duly delivered by Mr‍ Chan was null and void and that the ground upon which the RO purported to hold the said nomination paper to be invalid was not one of the grounds upon which he was empowered to do so by section ‍16 of the EAC Regulation.
  • The RO took into account materials irrelevant to the determination and unlawfully inquired into and considered matters that he was not permitted to consider when determining the validity of Mr ‍Chan’s nomination including his political platform, the public statements attributed to the Mr Chan and his political party, as set out in the RO’s 25 ‍July Letter and the Reasons.
  • The RO’s request to Mr ‍Chan to answer the Question on the basis that Mr ‍Chan had not signed and submitted the Confirmation Form was outside the power of the RO as the Confirmation Form was not a specified form nor did the Question relate to any matter of validity or invalidity as set out in section ‍16 of the EAC Regulation.
  • The RO’s manner of determining the invalidity of Mr‍ Chan’s nomination was procedurally unfair having regard to the circumstances and in particular, having regard to the RO’s failure to make available to Mr ‍Chan the DOJ Legal Advice which the RO was relying upon, or allowing Mr‍ Chan to make submissions on the same.
  • The RO’s determination that Mr ‍Chan’s nomination was invalid because of Mr‍ Chan’s perceived advocacy of certain political beliefs or opinions infringed Mr ‍Chan’s right to stand for election and the right of voters holding the same or similar political beliefs or opinions and the freedom of Mr ‍Chan to impart information and ideas of all kinds and of voters to receive information and ideas of all kinds contrary to Articles ‍25, 26, 27, 32, 39 and 79(7) of the Basic Law and contrary to Articles ‍1, 15, 16, 18, 21 and 22 of the Hong Kong Bill of Rights.
  1. Understood in light of Ms‍ Li’s submissions (both in her skeleton and orally) and the matters pleaded in the petition, the principal contentions advanced in support of these pleaded material irregularities are in gist that:
  • Properly construed with all the relevant statutory provisions, the Declaration requirement under section ‍40(1)(b)(i) is only a requirement in formality which is complied with by the mere signature of the nominee on the nomination form. Mr ‍Chan had signed the Declaration and thus complied with the requirement.  It was therefore unlawful and wrong for the RO to look to matters relating to whether Mr ‍Chan in fact or had the truthful intention to uphold the Basic Law in deciding whether Mr ‍Chan had complied with the requirement (“the Declaration Requirement Argument”).
  • Properly construed with the relevant statutory provisions, in determining whether Mr‍ Chan had satisfied the Declaration requirement under section ‍40(1)(b)(i), the RO in any event did not have any statutory power to look beyond the mere signature of the nominee and take into account those materials that he had taken into account in the present case (“the RO’s Power Argument”).
  • Properly construed with the relevant statutory provisions, the EAC does not have any power to issue the Confirmation Form and require the nominees to sign and return it for the purpose of the nomination. The RO was therefore also wrong to have taken into account the failure of Mr ‍Chan to sign and return the Confirmation Form as a factor in determining whether Mr ‍Chan had complied with the Declaration requirement (“the Confirmation Form Argument”).
  • In any event, Mr ‍Chan had not been given a proper and reasonable opportunity to answer the Question before the Decision, in particular when Mr‍ Chan had not been provided with the DOJ Legal Advice. This is so because Mr ‍Chan was not in a position at that time to properly understand the RO’s purported basis of questioning his compliance with the Declaration requirement by reference to his advocating Hong Kong’s independence and thus was unable to properly respond to and address the RO’s query (“the Reasonable Opportunity to Answer Argument”).
  • The Decision infringes Mr ‍Chan’s right to stand for election and right to freedom of expression protected under Articles‍ 25, 26, 27, 39 and 79(7) (respectively “BL25, 26, 27, 39 and 79(7)), and Articles 1, 15, 16, 18, 21 and 22 of the Hong Kong Bill of Rights (respectively “BOR1, 15, 16, 18, 21 and 22”) (“the Constitutionality Argument”).
  1. I ‍would look at these arguments in turn.

C2.    The Declaration Requirement Argument

  1. As mentioned above, under section‍ 40(1)(b)(i), a nomination is valid only if the nomination form includes or is accompanied by, among others, the Declaration. The relevant parts of section ‍40 provide as follows:

“(1)     A person is not validly nominated for a constituency unless –

...

(b)       the nomination form includes or is accompanied by …

(i)        a declaration to the effect that the person will uphold the Basic Law[3] and pledge allegiance to the Hong Kong Special Administrative Region[4] [“一項示明該人會擁護《基本法》和保證效忠香港特別行政區的聲明”]; and

(ii)        a declaration as to the person’s nationality and as to whether or not the person has a right of abode in a country other than the People’s Republic of China; and

(iii)      a promissory oath given by the person to the effect that, if elected, he or she will not do anything during his or her term of office that results in his or her -

            …

(E)               being disqualified from being elected as a Member at an election because of the operation of this or any other law.

       …

(2)       The person must sign the declarations.” (emphasis added)

  1. The issue raised under this argument is whether the Declaration requirement is complied with by the mere signing of the Declaration by the nominee (as contended by Ms‍ Li) or by the nominee having the genuine and truthful intention to comply with the obligations provided in the Declaration (ie, he will uphold the Basic Law and pledge allegiance to the HKSAR) (as contended by Mr‍ Yu).
  2. This is a question of the proper construction of section ‍40(1)(b)(i), which is purely a question of law.
  3. It is now well established that, the court should apply purposive construction of a statutory provision in its proper context to find its objective intention: T v Commissioner of Police (2014) 17 HKCFAR 593 at paragraphs 4 and 48; Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45 at paragraphs 75 - 77; Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351 at paragraph ‍15 and HKSAR v Lam Kwong Wai (2006) 9 HKCAR 574 at ‍606.
  4. In that objective exercise, context is important. This includes:
  • looking at the legislative history of the provision as well as the constitutional context, if relevant, as an aid to find the objective intention of the statutory provision to make an informed interpretation. See: Bennion on Statutory Interpretation (6th‍ ed) at pp 547 - 561; HKSAR v Cheung Kwun Yin (2009)‍ 12 HKCFAR ‍568 at paragraphs 13 - 14, per‍ Li‍ CJ.  For example, the Court of Appeal in Chan Yu Nam v Secretary for Justice (CACV ‍2 & 3/2010, 7‍ December 2010, Stock ‍VP, Hartmann ‍JA and Fok‍ J) examined at paragraphs 34 - 90 the legislative history of electoral development in Hong Kong since 1985 when considering the challenge against the constitutionality of sections ‍25 and 26 of the LCO in providing for corporate votes in functional constituencies.
  • Reading all of the relevant provisions together and in the context of the whole statue as a purposive unity in its appropriate legal and social setting: Medical Council of Hong Kong v Chow Shiu Shek (2000)‍ 3 HKCFAR ‍144 at 154B-C; Town Planning Board v Society for the Protection of the Harbour Ltd (2004) ‍7 HKCFAR‍ 1 at 13I-J.
  1. Bearing these principles in mind, the following legislative history and constitutional context are clearly relevant to the construction of section ‍40(1)(b)(i).
  2. The undisputed relevant legislative history relating to enactment of section ‍40(1)(b)(i) to require a candidate to make a declaration to uphold the Basic Law and pledge allegiance to the HKSAR is as follows:[5]
  • Article ‍68 of the Basic Law (“BL68”) provides that the LegCo shall be constituted by election, and BL68(3) further provides that the specific method for forming the LegCo is prescribed in Basic Law Annex II, which provides that the first LegCo of the HKSAR shall be formed in accordance with the decision of the National People’s Congress (“the NPC”).[6]
  • On the same date when the Basic Law was enacted, the NPC determined the method for the formation of the first LegCo of the HKSAR by a decision on 4‍ April 1990 (“1990‍ Decision”). Article‍ 6 of the 1990 Decision envisages a through‑train mechanism if members of the last Hong Kong LegCo uphold the Basic Law of the HKSAR of the PRC and pledge allegiance to the HKSAR of the PRC (‍其議員擁護中華人民共和國香港特別行政區基本法、願意效忠中華人民共和國香港特別行政區,經香港特別行政區籌備委員會確認,即可成為香港特別行政區第一屆立法會議員).[7]
  • On 7 ‍December 1995, the Preliminary Working Committee (“PWC”) of the Preparatory Committee for the HKSAR (“PC”) made proposals concerning the establishment of the Provisional LegCo (“PLC”) and the first LegCo of the HKSAR. Regarding the “requirements for candidates” (候選人的條件) for both, the PWC’s proposals followed the 1990 ‍Decision by providing as follows[8]:

“臨時立法會議員的候選人必須符合下述條件:(1)擁護中華人民共和國香港特別行政區基本法;(2)願意效忠中華人民共和國香港特別行政區;(3)中華人民共和國香港特別行政區基本法規定的立法會議員必須符合的其他有關條件”.

(English translation: Candidates for membership of the PLC must meet the following requirements: (1) uphold the Basic Law of the HKSAR of the PRC; (2) pledge allegiance to the HKSAR of the PRC; (3) other relevant requirements that LegCo members must meet as set forth in the Basic Law of the HKSAR of the PRC)”. (emphasis added)

“第一屆立法會議員的候選人必須符合下述條件:(1)擁護中華人民共和國香港特別行政區基本法;(2)願意效忠中華人民共和國香港特別行政區;(3)基本法規定的關於立法會議員的其他條件”

(English translation: “Candidates for membership of the 1st LegCo must meet the following requirements: (1) uphold the Basic Law of the HKSAR of the PRC; (2) pledge allegiance to the HKSAR of the PRC; (3) other requirements concerning LegCo members as set forth in the Basic Law”). (emphasis added)

  • On 24 ‍March 1996 and 5 ‍October 1996 respectively, the PC[9] decided and resolved, among others, as follows:

PC’s Decision of 24 March 1996 on the Establishment of the PLC of the HKSAR, Article 4

“香港特別行政區臨時立法會議員必須擁護中華人民共和國香港特別行政區基本法,願意效忠中華人民共和國香港特別行政區,並符合《中華人民共和國香港特別行政區基本法》規定的有關立法會議員的其他條件”

(English translation: “Members of the provisional legislature shall uphold the Basic Law of the PRC, pledge allegiance to the HKSAR of the PRC, and meet the relevant requirements in the Basic Law regarding qualification for membership of the legislature”).

PC’s Resolution of 5 October 1996 adopting “The Method for the Formation of the PLC of the HKSAR of the PRC” (“1996 PC Resolution”), Article 3

“臨時立法會議員候選人必須符合下列資格:(1)年滿十八周歲;(2)‍根據 《中華人民共和國香港特別行政區基本法》第二十四條的規定具有香港永久性居民資格;(3)擁護中華人民共和國香港特別行政區基本法;(4)願意效忠中華人民共和國香港特別行政區”.

(English translation: “Candidates for membership of the PLC must meet the following requirements: (1) not less than 18 years of age; (2) possess the status of permanent resident of the HKSAR in accordance with the provisions of Article 24 of the Basic Law of the HKSAR of the PRC; (3) uphold the Basic Law of the HKSAR of the PRC; (4) pledge allegiance to the HKSAR of the PRC”).

  • Article 5(2) of the 1996 PC Resolution further introduced the requirement to fill in a “Candidate Nomination Form”, expressly providing that the persons filling in the form (including the candidate) must be “responsible for the truthfulness of the items filled in” by such persons:

“參加聯合提名的推選委員會委員和被提名為臨時立法會議員候選人者應填寫 《中華人民共和國香港特別行政區臨時立法會議員候選提名表》,填表人須對所填寫項的真實性負責”

  • On 23 May 1997, the PC passed a resolution adopting “The Specific Method for the Formation of the 1st ‍LegCo of the HKSAR of the PRC” (“1997 PC Resolution”). Article 3 ‍thereof stipulated the requirements for candidates of the first ‍LegCo of the HKSAR.  Article 11 thereof provided that the HKSAR shall introduce legislation in accordance with the same[10]:

“第一屆立法會議員候選人必須是香港特別行政區永久性居民,擁護《中華人民共和國香港特別行政區基本法》,願意效忠中華人民共和國香港特別行政區,並符合基本法規定的其他有關資格和條件” (Article 3)

(English translation: “The candidates for the membership of the first Legislative Council must be permanent residents of the Hong Kong Special Administrative Region who uphold ‘the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China’, pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, and meet the eligibility and other requirements set forth in the Basic Law”) (emphasis added).

“香港特別行政區根據本辦法制定有關第一屆立法會選舉的法例” (Article‍ 11)

(English translation: “The Hong Kong Special Administrative Region shall introduce legislation with respect to the election of the first Legislative Council in accordance with the method stipulated above”). (emphasis added)

  • On 14 ‍August 1997, the Constitutional Affairs Bureau issued a Provisional LegCo Brief on the Legislative Council Bill. Clause ‍38(1)(b)(i) of the Bill is the same as section ‍40(1)(b)(i).  Paragraph ‍19 of the Brief stated that “According to the recommendation of the Preparatory Committee, a candidate is required to support the BL and pledge allegiance to the SAR. Clause ‍38 provides that when putting forward their nominations, all candidates will be required to sign a form to declare their support of the BL and their allegiance to the SAR.  If a candidate fails to sign the form, his nomination will be considered invalid.”[11]
  • On 15 ‍August 1997, The LegCo Bill including clause ‍38(1)(b)(i) (which is section‍ 40(1)(b)(i)) was gazetted.
  • On 1 ‍September 1997, Bills Committee asked the Government to provide legal advice on whether the 1997 ‍PC Resolution approving the Specific Method for the Formation of the First LegCo was binding.[12]
  • On 4 ‍September 1997, the Constitutional Affairs Bureau provided a response to the effect that the 1997 ‍PC Resolution was binding.[13]
  • The LCO was enacted on 3 ‍October 1997.
  1. As submitted by Mr ‍Yu, the above legislative history leading to the enactment of section ‍40(1)(b)(i) plainly shows that it is intended that the content of the Declaration in a candidate nomination form expresses the necessary qualifications which a LegCo candidate must possess (“必須符合… 資格”), namely, that he or she upholds the Basic Law of the HKSAR of the PRC and pledges allegiance to the HKSAR of the PRC, so that the making of the Declaration is a matter of substantive and not merely formal requirement.
  2. Moreover, the following constitutional provisions relating to the contents of the Declaration must also be relevant to the proper construction of section ‍40(1)(b)(i).
  3. Article‍ 104 of the Basic Law (“BL104”) provides:

“When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.”

  1. Hence, BL104 mandates all high office holders of the HKSAR, including LegCo Members, when assuming their respective offices, to take an oath to uphold the Basic Law and pledge allegiance to the HKSAR of the PRC. These are the same obligations enshrined in the Declaration.  Moreover, taking the oath is not merely a procedural requirement but a substantive one where the oath-taker must genuinely and truly commit to the obligation to uphold the Basic Law and pledge allegiance to the HKSAR of the PRC.  See: Chief Executive of the Hong Kong Special Administrative Region & Anor v President of the Legislative Council [2017] 1 HKLRD 460 (“The Leung/Yau CA Judgment”) at paragraph ‍27.
  2. In this respect, Ms ‍Li rightly and fairly accepts that the underlying purpose of section ‍40(1)(b)(i) is related to BL104. It is to avoid the circumstances where a candidate who is elected to be a LegCo Member has no intention of or is not capable of complying with the BL104 requirement to take the oath substantively.
  3. Once understood in this context and Ms ‍Li’s fair acceptance, it must be the objective legislative intent of section ‍40(1)(b)(i) to require the person making the Declaration to be genuine and truthful in its content. If, as submitted by Ms‍ Li, the requirement under section ‍40(1)(b)(i) is complied with by the nominee who has merely signed the Declaration even though he or she does not or does not intend to uphold the Basic Law and to pledge allegiance to the HKSAR, how could that achieve the intended purpose of avoiding the circumstances that the elected person has no intention or is not able of complying with BL104.
  4. In other words, simply by looking at the plain words of BL104, it is obvious that section‍ 40(1)(b)(i) is a substantive (as opposed to merely a formality) requirement where the person making the Declaration is someone who genuinely and truthfully intends to uphold the Basic Law and pledge allegiance to the HKSAR.
  5. The position is even clearer now also for the following reasons.
  6. On 7 ‍November 2016, the Standing Committee of the National People’s Congress issued an interpretation (“the Interpretation”) of the meaning of BL104. The Interpretation as to the meaning of BL104 is binding on all courts in Hong Kong and is to be regarded as having legal effect since 1‍ July 1997.  See: Director of Immigration v Chong Fung Yuen (2001) ‍4 HKCFAR ‍211 at 222G-H, per Li ‍CJ; The Leung/Yau CA Judgment, paragraphs ‍8, 29, 53 - 58.
  7. Relevantly for the present purposes, paragraph‍ 1 of the Interpretation provides:

“1.        ‘To uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China’ and to bear ‘allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China’ as stipulated in Article ‍104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, are not only the legal content which must be included in the oath prescribed by the Article, but also the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article.” (emphasis added)

  1. Thus, under BL104 (read with the Interpretation), the requirements under BL104 are also the necessary “legal requirements and preconditions for standing for election” in respect of the office of LegCo members. Therefore, as submitted by Mr ‍Yu, it is implicit in the requirements that LegCo candidates and members must genuinely and truly uphold the Basic Law and swear allegiance to the HKSAR of the PRC.
  2. Mr ‍Yu further submits (which I accept) that this is made even clearer when the Interpretation is understood in the context of the Explanations on the draft Interpretation (“the Explanations”).
  3. While the Explanations do not form part of the Interpretation and thus are not binding on the courts, it is now accepted that they are part of the context and background which inform the Interpretation, and elucidate the purpose and background of the Interpretation. They can thus be used as an aid to the interpretation of the Basic Law: Director of Immigration v Chong Fung Yuen (2001)‍ 4 HKCFAR‍ 211 at 223D-F.
  4. For the present purposes, the following paragraphs of the Explanations are of particular relevance:
  • Paragraphs ‍2 - 4 of the Explanations detail the history leading to the Interpretation. It is specifically stated that words and conduct advocating “Hong Kong Independence” seriously contravene the policy of “one country, two systems”, seriously contravene the Constitution of the PRC and the Basic Law of the HKSAR of the PRC and seriously undermine national unity, territorial integrity and national security.  The Interpretation notably does not require that the words or conduct be established as involving specific criminal or other offences under Hong Kong law.
  • Significantly, paragraph ‍3 of the Explanations highlights the fact that some people advocating “Hong Kong Independence” submitted nominations as candidates in the 2016 ‍LegCo Elections and the returning officers in the 2016 ‍LegCo Elections decided the nominations of those people openly advocating “Hong Kong Independence” as invalid in accordance with law, whilst paragraph ‍4 of the Explanations considers that the relevant controversies concerning the independence of Hong Kong involve the correct understanding and implementation of the relevant provisions of the Basic Law. This helps explain the context of paragraph ‍1 of the Interpretation as it relates to the candidature of the LegCo.
  • Paragraph ‍5 of the Explanations goes on to explain that the two substantive requirements prescribed under BL104, namely to uphold the Basic Law of the HKSAR of the PRC and pledge allegiance to the HKSAR of the PRC, are the legal requirements and preconditions for standing for election for public office as specified in BL104 (including the office of LegCo).
  • Paragraph ‍6 of the Explanations recites the genesis and history of the Declaration, including in particular the 1996 and 1997 PC Resolutions adopting respectively the Specific Methods for the Formation of the PLC and the first LegCo of the HKSAR of the PRC, which stipulate that the candidates standing for the LegCo election must uphold the Basic Law of the HKSAR of the PRC and pledge allegiance to the HKSAR of the PRC. It further explains that the PC’s 1996 and 1997 Resolutions have legal effect and corresponding requirement was enacted in section ‍40 of the LCO.  It is against such background that paragraph ‍1 of the Interpretation is promulgated.
  1. In the premises, the important and substantive purpose of the Declaration (and similarly the LegCo Oath) is plain. The members of the LegCo are to serve the HKSAR, including the electorate and the wider public, under and within the prevailing constitutional framework established by the Basic Law.  The upholding of the Basic Law and the acceptance of the fact that the HKSAR is an inalienable part of the PRC (in pledging allegiance to the HKSAR of the PRC) is fundamental to the person being allowed to assume office.  The establishment of Hong Kong as a special administrative region of the PRC under the “one country, two systems” principle in the Basic Law reflects China’s basic policies towards Hong Kong of upholding national unity and territorial integrity, taking account of Hong Kong’s history and realities, and maintaining the prosperity and stability of Hong Kong.  These basic policies form the bedrock of the new constitutional order since 1 ‍July 1997.
  2. As observed by this court in Chief Executive v President of the Legislative Council (HCAL‍ 185/2016, 15 November 2016) ([2016] ‍6 HKC ‍417) (“the Leung/Yau CFI Judgment”) at paragraph ‍55, the central organising principle of “one country, two systems” runs throughout the Basic Law as the constitution for the HKSAR. This fundamental principle underlying the constitutional order of the establishment of the HKSAR and the enactment of the Basic Law have also been expressly incorporated into the Basic Law under its Preamble, Articles‍ 1, 2, 12 and 159(4) as follows:

Preamble

Hong Kong has been part of the territory of China since ancient times; it was occupied by Britain after the Opium War in 1840.  On 19 December 1984, the Chinese and British Governments signed the Joint Declaration on the Question of Hong Kong, affirming that the Government of the People’s Republic of China will resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997, thus fulfilling the long-cherished common aspiration of the Chinese people for the recovery of Hong Kong.

Upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the People’s Republic of China has decided that upon China’s resumption of the exercise of sovereignty over Hong Kong, a Hong Kong Special Administrative Region will be established in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China, and that under the principle of “one country, two systems”, the socialist system and policies will not be practised in Hong Kong. The basic policies of the People’s Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British Joint Declaration.

In accordance with the Constitution of the People’s Republic of China, the National People’s Congress hereby enacts the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, prescribing the systems to be practised in the Hong Kong Special Administrative Region, in order to ensure the implementation of the basic policies of the People’s Republic of China regarding Hong Kong.

Article 1

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

Article 2

The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.

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.

BL159(4)

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

  1. The office sought to be occupied by Members of the LegCo only exists by virtue of the Basic Law and the prevailing constitutional order. As recognized in TheLeung/Yau CA Judgment at paragraph ‍27, we are concerned with the holders of the important offices who discharge high responsibilities entrusted to them in running the HKSAR in their respective roles assigned under the Basic Law.
  2. The Declaration and its purpose must therefore be understood in the light of and consistently with the constitutional requirement in BL104, which applies not only to the stage of assumption of office, but also as legal requirement and preconditions to nomination as candidate. Plainly, as accepted by Ms ‍Li, if a person is ineligible to assume office, there is no sensible purpose for that person to be allowed to stand for election for the office.
  3. Hence:
  • The historical documents (including in particular the 1996 and 1997 PC Resolutions adopting respectively The Specific Methods for the Formation of the PLC and the first LegCo) and paragraph ‍1 of the Interpretation show that the upholding of the Basic Law and the pledging of allegiance to the HKSAR of the PRC are the legal requirements and preconditions of the candidates as well as Members of LegCo. The introduction of the Declaration was for the purpose of ensuring that the candidates do uphold the Basic Law and pledge allegiance to the HKSAR of the PRC, and not only at the time when they become elected.
  • The word “will” (and in Chinese “會”) in the Declaration specified under section ‍40(1)(b)(i) prima facie refers to a present intention at the making of the Declaration and not to some remote and uncertain future time, eg, if and when the candidates become elected (which may or may not materialize).
  • If the Declaration refers only to the time when the candidates become elected, then it serves no real purpose because an elected Member of the LegCo is in any event required to make an oath stating that he upholds the Basic Law and swears allegiance to the HKSAR of the PRC before taking office (under BL104 and the Oaths and Declarations Ordinance (Cap ‍11) (“the ODO”)). The making of the Declaration would add nothing to the LegCo Oath, if it only applied to the period after the candidate has been elected.
  • There is a clear constitutional concern in ensuring that any and all persons who may be elected to LegCo office will uphold the Basic Law and pledge allegiance to the HKSAR of the PRC, in line with the constitutional requirement under BL104.
  1. In the premises, the legislative history considered together with BL104 (read plainly on its own or properly together with the Interpretation) shows the 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.
  2. The Declaration serves to provide for and facilitate the verification of this substantive requirement. It is to this end that a person must make the Declaration in the nomination form as required under section ‍40(1)(b)(i), and the requirements for validity of a declaration are to be understood in this light.
  3. Finally, it is also a principle of construction that a proper construction of the statutory provision should accord the same a due measure of real meaning and substance, and avoid the result of absurdity and circularity.[14]
  4. If, as contended by Ms ‍Li, section‍ 40(1)(b)(i) is only a formality requirement, it would result in absurdity and circularity, which cannot be objectively intended by the legislature:
  • If Ms‍ Li was correct, even if a nominee who while or after signing the Declaration says or does something which plainly shows that he in fact does not, and does not have any intention to, uphold the Basic Law or pledge allegiance to the HKSAR, the Returning Officer would still have to declare his nomination to be valid and let him or her stand for the election. This would be an absurd result of the provision which cannot be intended.
  • Ms ‍Li argues that the person would then be liable for criminal prosecution under section‍ 103(1) of the EAC Regulation for knowingly making a false statement.[15] If he is subsequently convicted before the date of election, the Returning Officer can vary his earlier decision to the effect that the candidate is not validly nominated.[16]
  • This, in my view, is unrealistic. Given the tight timeframe between the close of the nomination period and the date of election,‍[17] it is entirely unlikely that the criminal prosecution and trial of the candidate with a conviction can be completed before the election date.  But even if that can be done, it will result in circularity, as the person’s nomination should have been clearly invalidated in the first place.
  1. In the premises, all the above supports the construction that it is a substantive requirement under section‍ 40(1)(b)(i) that the nominee in making the Declaration is genuine and truthful in his intention in upholding the Basic Law and pledging allegiance to the HKSAR.
  2. To be fair to Ms ‍Li, when asked by the court at the hearing, leading counsel accepts that of course the law must have intended the candidate making the Declaration to be genuine and truthful. However, Ms ‍Li says her principal contention is that, on a proper construction of section ‍40(1)(b)(i), for the purpose of determining whether a nomination is valid, it is the objective legislative intent that the Declaration requirement is to be satisfied by the mere signing of the Declaration without seeing additionally whether the candidate in fact intends to uphold the Basic Law and pledge allegiance to the HKSAR.
  3. Ms ‍Li advances a number of arguments to support her contention. I ‍will consider them below.
  4. First, Ms‍ Li submits that the construction of section ‍40(1)(b)(i) must be considered against the context that the right to stand for election is a fundamental right protected under BL26[18] and BOR21[19] (domesticating Article ‍25 of the ICCPR,[20] which in turn is constitutionally protected under BL39). Although this right is not absolute, it cannot and should not be restricted unreasonably.
  5. Given this important context, Ms Li continues, any statutory provision that seeks to invalidate or disqualify a candidate from standing for election must be construed restrictively, and the provided grounds for such invalidation and disqualification must be clear, certain and easily ascertainable. This is more so given that the statutory timeframe for election from nomination to the date of election is a short and compact one,[21] which dictates that the time for the RO to determine the validity and qualification of a candidate can also only be a very short one.
  6. In this respect, Ms‍ Li submits that hence all the grounds provided under sections ‍37(1) and 39 of the LCO relating respectively to the eligibility and disqualifications of a candidate are all objective, clear and certain ones. They provide as follows:

37.  Who is eligible to be nominated as a candidate

(1)     A person is eligible to be nominated as a candidate at an election for a geographical constituency only if the person—

(a)  has reached 21 years of age; and

(b)  is both registered and eligible to be registered as an elector for a geographical constituency; and

(c)  is not disqualified from being elected as a Member by virtue of section 39 or any other law; and

(d) has ordinarily resided in Hong Kong for the 3 years immediately preceding the nomination; and

(e)  is a Chinese citizen who is a permanent resident of Hong Kong with no right of abode in any country other than the People’s Republic of China.

(2)     …

  1. When person is disqualified from being nominated as a candidate and from being elected as a Member

(1)     A person is disqualified from being nominated as a candidate at an election, and from being elected as a Member, if the person—

(a)  is—

(i)      a judicial officer; or

(ii)     a prescribed public officer [defined in subsection ‍ (5)]; or

(iii)    an officer of the Legislative Council or a member of staff of The Legislative Council Commission; or

(b)  has, in Hong Kong or any other place, been sentenced to death or imprisonment (by whatever name called) and has not either—

(i)      served the sentence or undergone such other punishment as a competent authority may have been substituted for the sentence; or

(ii)     received a free pardon; or

(c)  has been convicted of treason; or

(d) on the date of nomination, or of the election, is serving a sentence of imprisonment; or

(e)  without limiting paragraph (b), 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; or

(ii)     of having engaged in corrupt or illegal conduct in contravention of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap.‍ 554); or

(iii)    of an offence against Part II of the Prevention of Bribery Ordinance (Cap. 201); or

(iv)    of any offence prescribed by regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541); or

(f)  is—

(i)      ineligible to be a candidate, or to be elected as a Member, at the election; or

(ii)     disqualified from being a candidate, or from being elected as a Member, at the election,

because of the operation of this or any other law; or

(g)  is a representative or salaried functionary of a government of a place outside Hong Kong; or

(h)  is a member of any national, regional or municipal legislature, assembly or council of any place outside Hong Kong, other than a people’s congress or people’s consultative body of the People’s Republic of China, whether established at the national or local level; or

(i)   is an undischarged bankrupt or, within the previous 5 years, has either obtained a discharge in bankruptcy or has entered into a voluntary arrangement within the meaning of the Bankruptcy Ordinance (Cap. 6) with the person’s creditors, in either case without paying the creditors in full.

(2)     A person is also disqualified from being nominated as a candidate at an election if the person has been found under the Mental Health Ordinance (Cap. 136) to be incapable, by reason of mental incapacity, of managing and administering his or her property and affairs, but a person disqualified under this subsection is eligible for nomination as a candidate if, under that Ordinance, it is subsequently found that the person has become capable of managing and administering his or her property and affairs.

(2A)  A person is also disqualified from being nominated as a candidate at a by-election if—

(a)  within the 6 months ending on the date of the by-election—

(i)      the person’s resignation under section 14 as a Member took effect; or

(ii)     the person was taken under section 13(3) to have resigned from office as a Member; and

(b)  no general election was held after the relevant notice of resignation or notice of non-acceptance took effect.

(3)     A person is also disqualified from being elected as a Member if the person has been found under the Mental Health Ordinance (Cap. 136) to be incapable, by reason of mental incapacity, of managing and administering his or her property and affairs, but a person disqualified under this subsection ceases to be disqualified if, under that Ordinance, it is subsequently found that the person has become capable of managing and administering his or her property and affairs.

(4)     A person is also disqualified from being elected as a Member for a functional constituency (other than the District Council (first) functional constituency and the District Council (second) functional constituency) if, since the close of nominations, the person has ceased to have a substantial connection with the constituency.

(5)     …”

  1. Ms‍ Li therefore contends that, when section ‍40(1)(b)(i) is properly construed against (as it should be) the context of election right and together with sections ‍37 and 39 of the LCO, the requirements for the validity of a nomination provided therein must also be intended to be ones that are objective, certain and easily ascertainable. Construed in these contexts, the Declaration requirement should only require the Returning Officer to be satisfied that the nominee has included the Declaration in the nomination form and is signed, as these are matters that are objective, certain and easily ascertainable.  Ms ‍Li further says it is everything the opposite of objectivity and certainty if the requirement is a substantive one as advanced by Mr ‍Yu, since what is and is not a genuine and truthful intention is principally a subjective question.
  2. Ms‍ Li reiterates her submissions that the objective purpose of the Declaration requirement is to have the nominee bound. If a nominee is not truthful and genuine in making the Declaration, the real and proper course under the legislative scheme is to subject him or her to the criminal liability under section ‍103(1) of the EAC Regulation in making a false declaration.  Once the nominee is convicted of that offence, the Returning Officer could retrospectively disqualify him or her as a valid candidate under section ‍42(B)(4) of the LCO (if the conviction is secured before the election date).  It is only in that case that there is the requisite certainty and objectivity in the ground to invalidate a candidate for not making a genuine Declaration.
  3. This is a powerful and persuasive argument. However, with the greatest respect, on deeper analysis, I am still not convinced for the following reasons.
  4. Ms‍ Li’s above contentions cannot override the clear objective legislative purpose and intention to require as a legal precondition a candidate to have a substantive intention to uphold the Basic Law and swear allegiance to the HKSAR, as supported by the unequivocal legislative history of section ‍40(1)(b)(i) and the reading of BL104. After all, the construction exercise is to find the objective intention of the statutory provision.
  5. In any event, it is also only common sense that the demand for a declaration is for the purpose of demanding in substance the very contents contained in the declaration. Otherwise, what is the purpose and point in having the declaration and it to be signed in the first place.
  6. Further, Ms ‍Li’s above contentions similarly cannot address the result of absurdity and circularity if her construction is adopted. It is a principle of construction that the court would adopt an equally plausible alternative statutory interpretation if the other one would result in absurdity and circularity.
  7. Finally, a substantive requirement on having the truthful intention to uphold the Basic Law and pledge allegiance to the HKSAR under the Declaration requirement is not inconsistent with having a requirement that is objective and reasonably ascertainable.
  8. One can and should apply an objective test to determine whether the person making the Declaration objectively viewed has the genuine and true intention to uphold the Basic Law and swear allegiance to the HKSAR. This is no different from the objective test applied to the requirement for an elected LegCo member to make a faithful and truthful oath (which are of the same obligations as the Declaration) under BL104 and the ODO.  Cf: The Leung Yau CA Judgment, paragraphs ‍5, 27 and 41; TheLeung/Yau CFI Judgment, paragraphs‍ 33, 35(1), 38 - 40, 42, 45 and 46.
  9. In other words, taking into account the contexts of the right to election and the requirement of a reasonable degree of certainty and objectivity, it must also be the objective legislative intent of section ‍40(1)(b)(i) that an objective test should be adopted to determine the validity of the nomination in relation to whether the substantive Declaration requirement is met by a nominee.
  10. However, in relation to this, there is an important caveat that I must add, which is this.
  11. As rightly submitted by Ms ‍Li, this substantive Declaration requirement imposed under section ‍40(1)(b)(i) must be viewed against the involvement of the fundamental election right and the tight statutory timetable in the election process. Once so considered, it must also be part of the objective intention of the legislature that the submission of a signed Declaration should constitute strong prima‍ facie objective proof of the genuine intent of the candidate to uphold the Basic Law and pledge allegiance to the HKSAR, especially when this is coupled with the potential criminal sanction imposed for someone making an intentional false statement under section ‍103 of the EAC Regulation.
  12. Hence, 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.
  13. 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.
  14. Second, Ms‍ Li argues that the Declaration requirement can only be a requirement on formality in light of the criminal liability created under section ‍103(1) of the EAC Regulation for anyone making a false statement in any election related document. This is so because, explains Ms‍ Li, if the requirement is a substantive one as submitted by Mr‍ Yu, it would effectively be asking the Returning Officer to determine without trial and on a summary way whether the candidate has committed a criminal offence in making a false statement.  This cannot be right, says Ms‍ Li, as this would not only be unfair but also inconsistent.  Leading counsel asks rhetorically, what would be the position if a candidate whose nomination has been invalidated by the Returning Officer on the basis of not having a genuine and truthful intention to make the Declaration, is subsequently acquitted of an offence of making a false declaration under section‍ 103(1).  A fortiori, the position would be even more unfair if the invalidated nominee is not even prosecuted for the offence, something which is not under his control.
  15. With respect, I ‍am unable to agree.
  16. As submitted by Mr ‍Yu, one cannot simply and directly compare whether someone objectively has the necessary intention to uphold the Basic Law and pledge allegiance to the HKSAR with whether that person has committed the offence of making a false statement under section ‍103 of the EAC Regulation.
  17. Section ‍103 of the EAC Regulation provides as follows:

“Section: 103 Offence of false declaration

(1)    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.

(2)    A person who directly or indirectly by himself or herself or by another person on his or her behalf conspires with, incites, compels, induces, coerces, intimidates or persuades another person to make a false statement in an election related document or to provide information which that person knows to be wrong in a material particular in an election related document commits an offence.

(3)    A person who commits an offence under this section is liable to a fine at level ‍2 and to imprisonment for 6 ‍months.

(3A)  An offence under subsection (1) or (2) is to be an offence prescribed for the purposes of sections 39 and 40 of the Legislative Council Ordinance (Cap ‍542).

(4)    In this section election related document (與選舉有關的文件) means a form, declaration, application, authorization, notice, statement or a nomination form required or used for the purposes of this Regulation.”

  1. Thus, under section‍ 103(1), the element of the offence requires a mens rea that the person who knows or is reckless as to the falsity in the statement. In other words, if the person makes a bona ‍fide mistake in believing that the statement is correct, he would not have committed the offence.  On the other hand, the requirement under the constitutional order of the Declaration is not only that he is bona‍ fide in making the Declaration but also that he truly has the intention to do so objectively.  The signed Declaration is only one of the acts or pieces of evidence (albeit as I mentioned above prima‍ facie a strong one) to show that he truly does so.  Hence, the fact that a person may or may not be criminally liable in making a false declaration is neither here nor there to the substantive requirement under the Declaration.
  2. For the same reason, it is incorrect to compare the two on the standard of proof since we are concerned with two different matters. There is therefore no question of any inconsistency.  As explained above, the fact that a candidate is not found to have committed the offence under section ‍103(1) of the EAC Regulation does not mean that the candidate objectively in fact upholds and intends to uphold the Basic Law and pledge allegiance to the HKSAR at the time of making the Declaration.  Of course, if the candidate is indeed subsequently convicted of the offence for making a false declaration, a‍ fortiori, he or she did not uphold and intend to uphold the Basic Law at the time.
  3. In relation to Ms ‍Li’s complaint about the summary nature of the Returning Officer’s decision in this respect, as I mentioned above, in light of a submitted signed Declaration, the Returning Officer should only invalidate a nomination on the basis of the failure to comply with the substantive Declaration requirement when there are cogent, clear and compelling materials to plainly show the lack of the requisite intention.
  4. I‍ therefore also reject Ms‍ Li’s contention in this respect.
  5. Third, Ms‍ Li also says the legislative intent to have the Declaration requirement to be complied with by the mere signing of it is supported by the Provisional LegCo Brief dated 14 ‍August 1997 introducing the LegCo Bill. Section ‍40 of the LCO is clause ‍38 of the Bill, and in introducing that, the LegCo Brief stated at paragraph‍ 19 as follows:

Requirement to support the BL and pledge allegiance to the SAR

  1. According to the recommendation of the Preparatory Committee, a candidate is required to support the BL and to pledge allegiance to the SAR. Clause 38 provides that when putting forward their nominations, all candidates, will be required to sign a form to declare their support of the BL and their allegiance to the SAR. If a candidate fails to sign the form, his nomination will be considered invalid.”
  2. Ms‍ Li seizes on the last sentence of this paragraph and submits that it was clearly the intention of the provision that a nomination should be considered valid once the form containing the Declaration is signed, as it was made clear that the nomination would be considered invalid “if a candidate fails to sign the form”.
  3. With respect, this is incorrect. That paragraph should be read in its entirety and in proper context.  The first sentence of it shows clearly that the provision was introduced to implement and underline the PC’s recommendation that a candidate was “required to support the BL and to pledge allegiance to the SAR”.  This must mean that the candidate must in fact support the Basic Law and swear allegiance to the HKSAR, which is in turn consistent with the undisputed legislative history detailed above.  The requirement of the signing of the Declaration by the candidate is an objective means imposed by legislation to show that the candidate in fact and in substance supports and have the intention to support the Basic Law and pledge allegiance to the HKSAR.  Obviously, if a candidate even refuses to sign it, it must be objectively plain that he or she does not have the requisite intention to uphold the Basic Law and the nomination must be an invalid one.
  4. The LegCo Brief properly read therefore does not support Ms‍ Li’s contention.
  5. Fourth, Ms ‍Li relies on a number of authorities in the United Kingdom to support her contention that it can only be intended that the Returning Officer is to determine the formal validity of the nomination form instead of the substantive validity of the nomination. These authorities include R v Election Court, ex p Sheppard [1975] ‍1 WLR ‍1319; Greenway-Stanley v Paterson [1977] ‍2 All ER‍ 663; and Sanders v Chichester [1994] ‍EWHC 9 ‍(QB).
  6. With respect, these authorities do not in any way assist Ms ‍Li. They are clearly distinguishable.  I‍ hope I can be forgiven for not going into the detail of these authorities.  Suffice to say that, as pointed out by Mr ‍Yu, these authorities all relate to the construction of the specific Acts in the UK concerning the returning officer’s power in an election.  In those specific provisions of those Acts under consideration,[22] it was expressly provided that the returning officer in the UK was to determine the validity of the “nomination form”, and it was on that basis that the court decided that the returning officer could not look behind the formality of the forms and looked at the substance of underlying certain statements thereon.
  7. This is entirely different from the position in Hong Kong. We are concerned with section‍ 40(1)(b)(i), which expressly relates to the “validity of the nomination” but not merely the “nomination form” as provided in the UK Acts.  Further, sections‍ 38(5) and 41A of the LCO also provide expressly that the Returning Officer is to determine whether the nominee is “validly nominated”.[23]
  8. Finally, Ms‍ Li says it is trite that the court cannot by way of construction add words to the provision which are not there. Leading counsel submits that the construction of a substantive requirement advanced by Mr ‍Yu is in effect to say that a candidate must make a “valid” Declaration.  This is to add the word “valid” before the word “declaration” in section ‍40(1)(b)(i), which is not permitted.  In particular, Ms‍ Li refers to section ‍49(1) of the LCO to support her submissions that, if the legislature intended to require something to be a “valid” one, it would do so expressly.  Section ‍49(1) provides relevantly that:

“(1) In this section –

votes (票) means valid votes” (emphasis added)

  1. Ms ‍Li also relies on Liu Sing Lee v Luk Fong Chun Richard [1995] ‍1 HKC ‍499 at 505F-508C and 513, to support her contentions that the court should only construe an election related provision by reference to the plain words used in it.
  2. I ‍am not persuaded by these submissions. It is now well established by the highest authorities cited above that the court should adopt purposive interpretation in construing a statutory provision.  This is what the court has done above in concluding that the Declaration requirement under section ‍40(1)(b)(i) is intended to be a substantive one.  The approach laid down in Liu Sing Lee must be read subject to the approach of purposive construction.
  3. Further, the reference to section ‍49(1) of the LCO also does not support Ms ‍Li’s contention. This is so, as pointed by Mr ‍Yu, since it is obviously necessary for the draftsman to add the word “valid” to qualify the word “votes” in the definition section because section ‍49(5) to (10) have made further definitions on an elaborate formula to prescribe which of the votes that have been cast should and should not be counted in the poll.  Hence, it is necessary to expressly add the word “valid” to qualify the votes as defined so as to distinguish votes which should be counted (ie, valid votes) from those which should not be.  There is no need to make such a distinction for the word “declaration” in section‍ 40(1)(b)(i).
  4. For all the above reasons, I reject Declaration Requirement Argument and conclude that on a proper construction of section ‍40(1)(b)(i):
  • The Declaration requirement is objectively intended by the legislature to be a substantive one, which is only satisfied if the nominee makes the Declaration genuinely and truthfully, in that at the time of making the Declaration, the nominee objectively has a genuine and truthful intention to uphold the Basic Law and pledge allegiance to the HKSAR.
  • The Declaration requirement is prima‍ facie complied with when the nomination form is submitted with the signed Declaration, unless there are cogent, clear and compelling materials to show objectively and plainly that the nominee does not have that necessary intention to uphold the Basic Law and pledge allegiance to the HKSAR.
  1. Further, when a signed Declaration is provided with the nomination form, procedural fairness dictates that the nominee must generally be given a reasonable opportunity to respond to any materials that the Returning Officer regards as negating a genuine intention on the part of the nominee to make the declaration, and the Returning Officer should take into account the responses in deciding whether there are such cogent, clear and compelling materials to show objectively that the nominee does not have the requisite intention.
  2. In the premises, there was no material irregularity to the NTWGC Election for the RO to treat the Declaration requirement as a substantive requirement in deciding whether Mr ‍Chan had complied with it. I ‍therefore reject the Declaration Requirement Argument.

C3.    The RO’s Power Argument

  1. Under this issue, Ms‍ Li submits that, on a proper construction, in considering whether the nomination is valid, the Returning Officer only has statutory power to determine the formal validity (as opposed to substantive validity) of the Declaration requirement. In other words, Ms ‍Li again contends that the Returning Officer has power to only determine whether the Declaration requirement has been complied with as a matter of formality, that is, whether the nominee has or has not signed the Declaration.  In the premises, says Ms ‍Li, it was unlawful for the RO (as he had no such power) in the present case to look at other materials and to ask Mr ‍Chan the Question in seeking to determine the substantive compliance of the Declaration requirement.
  2. Most of the arguments raised by Ms‍ Li under this argument overlap with her submissions made under the Declaration Requirement Argument in contending that, as a matter of construction, that requirement itself is only a formality requirement.
  3. 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[24] 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”.[25]
  4. 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.
  5. The RO was therefore entitled as a matter of law to look at various materials relating to Mr ‍Chan’s objective intention to uphold the Basic Law and to ask the Question in order to determine whether he had complied with the Declaration requirement substantively. There is no material irregularity in this respect.
  6. Ms ‍Li also alternatively submits that throughout the LCO and the EAC Regulation, the legislature has consistently drawn a distinction between the formal requirements and substantive requirements of a valid nomination. Leading counsel then says, the compliance of formal requirements (which concern the nomination form) is for the Returning Officer to determine alone, while for the compliance of substantive ones, the Returning Officer can only determine that after having sought an advice from the Nomination Advisory Committee (“the NAC”).  The NAC is appointed under the Electoral Affairs Commission (Nominations Advisory Committees (Legislative Council)) Regulation (Cap ‍541C) (“the NAC Regulation”).
  7. Thus, even if the Declaration requirement is a substantive requirement, Ms ‍Li submits that the Returning Officer can only determine its compliance after having sought the NAC’s advice and consider it. The RO in the present case however had failed to obtain an advice from the NAC when making the Decision.  This is wrong in law and also amounts to a material irregularity.
  8. Ms ‍Li premises her above submissions on sections‍ 16 ‑ 19 of the EAC Regulation which provide relevantly as follows:

“Section: 16   Returning Officer to decide whether candidates are validly nominated

(1)    The Returning Officer must, as soon as practicable after receiving a nomination form, decide whether a candidate is validly nominated.

(2)    If section ‍10 or 11 (as may be applicable) and sections ‍37, 39 and 40 of the Legislative Council Ordinance (Cap ‍542) are complied with, the candidate stands validly nominated unless-

(a)  the Returning Officer decides that the nomination form is invalid; or

(b)  the candidate withdraws his or her candidature.

(3)    Without prejudice to sections‍ 37, 39 and 40 of the Legislative Council Ordinance (Cap‍ 542), the Returning Officer may decide that a nomination is invalid if and only if-

(a)  the nomination form has not been signed by the prescribed number of subscribers qualified to subscribe to the nomination form under the Legislative Council (Subscribers and Election Deposit for Nomination) Regulation (Cap ‍542 sub. leg. C);

(b)  the nomination form has not been completed or signed as required under this Regulation;

(c)  the Returning Officer is satisfied that the candidate is not eligible to be or is disqualified from being nominated as a candidate under the Legislative Council Ordinance (Cap ‍542);

(d) in the case the nomination form relates to a constituency, the candidate has been nominated for another constituency (whether a geographical constituency or a functional constituency) in the same election and the Returning Officer is satisfied that the other candidature has not been withdrawn;

(e) the candidate has not lodged the appropriate deposit; or

(f) the Returning Officer is satisfied that the candidate is dead.

(4)    …

Section: 17     Returning Officer to have regard to advice of Nominations Advisory Committee

In deciding under section 16 whether a person is eligible to be or is disqualified from being nominated as a candidate, the Returning Officer must have regard to-

(a)  advice given by a Nominations Advisory Committee on an application, if any, made by the Returning Officer regarding that person under the Electoral Affairs Commission (Nominations Advisory Committees (Legislative Council)) Regulation (Cap ‍541 sub. leg. C); or

(b)  advice given by a Nominations Advisory Committee on an application, if any, made by that person to the Nominations Advisory Committee under that Regulation or, if advice has not been given, the result of the application.

Section: 18     Returning Officer may give opportunity to rectify a nomination form

(1)    If the Returning Officer detects on a nomination form-

(a)   an error or what appears to that Officer to be an error, or an omission, which may amount to a ground for deciding that the nomination form is invalid; or

(b)  anything which may affect the validity of the nomination form, and the Returning Officer considers that it can be rectified within the nomination period, that Officer may, before making a decision under section ‍16, give the candidate a reasonable opportunity to rectify it.

(2)    If the nomination form relates to a geographical constituency or the District Council (second) functional constituency, the opportunity to rectify must be given to all the candidates on the nomination list if it is appropriate to do so.

(3)    A nomination form cannot be rectified under this section after the expiry of the nomination period.

Section: 19     Returning Officer to endorse invalid nomination forms

(1)    If the Returning Officer decides that a nomination form or the nomination of a candidate is invalid, that Officer must endorse on the nomination form the decision and the reasons for it.

(2)    The Returning Officer must sign an endorsement under subsection ‍(1).

(3)    The Returning Officer must send a notice of a decision that a person is validly nominated or is not validly nominated to the person concerned and each validly nominated candidate for the constituency concerned.

(4)    A notice under subsection‍ (3) must be sent to the principal residential address of the candidate as given on the nomination form.”

  1. Ms ‍Li highlights that:
  • Sections‍ 16(2) and (3)(a) - (d) expressly refer to the Returning Officer’s determination of the validity of nomination based on various non-compliance of formality in the “nomination form”.
  • Although under section‍ 16(3)(c), the Returning Officer is to determine whether the candidate is ineligible or disqualified from being nominated under the LCO, section ‍17 expressly provides that in such determination, the Returning Officer should have regard to the advices given by the NAC.
  • Sections ‍18 and 19 all refer to the Returning Officer’s determination of the validity of the “nomination form”.
  1. Leading counsel therefore submits that it is the objective intention of the draftsman that (a)‍ the Returning Officer on his own can determine the nomination of a candidate by reference to the candidate’s compliance of the formality requirements relating to the nomination form; and (b)‍ the Returning Officer in determining the substantive requirements of a nomination on eligibility, disqualification and otherwise, he must seek and have regard to the advice given by the NAC. This is important, Ms ‍Li emphasizes, since the NAC is established under the NAC Regulation as an independent committee to ensure that the Returning Officer’s decision on substantive validity is to be an impartial one after receiving an impartial and independent advice given by the NAC.  This is to underlie the importance of having an impartial, fair and credible election process managed by the EAC.
  2. Again, with respect, on a closer look at these provisions together, they do not support Ms‍ Li’s above contention on the objective legislative intent.
  3. 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)) to determine if the nomination is valid.  But this is for the purpose of determining the ultimate question of whether the nomination itself is a valid one.  The legislature has provided under section ‍18 procedures and guidelines as to when an error of a nomination form can be rectified before making a final decision under section ‍16 to determine the validity of the nomination.  Thus, it is incorrect to say these provisions support the argument that the Returning Officer is only entrusted with the duty and power to determine the formal validity of the nomination form.
  4. Further, it is equally incorrect to say that these provisions mandate the Returning Officer to seek the NAC’s advice in determining the substantive validity of a nomination:
  • Under section ‍16, the Returning Officer is required to make a decision as to the validity of the nomination of a candidate as soon as practicable after receiving the nomination form. He is to make that decision on validity by looking at whether:

(a)     sections‍ 10, 11 or 37 of the LCO is complied with (section ‍16(2)) (which relate to substantive requirements);

(b)    whether the candidate is not eligible or disqualified from being so nominated under the LCO (section ‍16(3)(c));

(c)     whether the provisions under sections ‍37, 39 and 40 of the LCO are complied with (section‍ 16(3) which provides that its subsections are without prejudice to sections ‍37, 39 and 40 of the LCO); and

(d)     whether the nomination form is validly submitted and the deposit is paid (section‍ 16(3)(a), (b), (d), (e)).

  • Hence a decision made under section‍ 16 relates to a decision concerning the substantive validity of the nomination, including a determination on the formal validity of the nomination form.
  • In the premises, when section‍ 17 refers to a decision made by the Returning Officer under section‍ 16, it includes a decision on the substantive validity of the nomination as well as a determination on the validity of the nomination form. It is therefore incorrect for Ms ‍Li to suggest that section ‍17 concerns only with a decision of the Returning Officer not related to the formality requirement of the nomination form.
  • In any event, section ‍17(a) provides that the Returning Officer must have regard to the NAC advice before making a decision under section‍ 16 if the Returning Officer has asked for such an advice. Therefore, section‍ 17 does not mandate the Returning Officer to seek an advice from the NAC whenever he makes a decision under section ‍16, even if that relates to a substantive requirement of a nomination as submitted by Ms ‍Li.
  • In the premises, the submissions made by Ms ‍Li that it is the legislative intent of these provisions that the Returning Officer can only make a decision on his own concerning the compliance of the formal requirements of the nomination form is simply not borne out by a proper reading of these provisions.
  • Quite to the contrary, these provisions are consistent with the construction that the Returning Officer is entrusted with the duty and power to determine both the substantive requirements and the formal requirements of a valid nomination as provided under the LCO and the EAC Regulation. If necessary, as provided under section ‍17 of the EAC Regulation, the RO can and is at liberty to seek advice from the NAC before making a decision on the validity of the nomination (whether relating to the substantive requirements or the formal requirements).  If he has sought such an advice, the Returning Officer must then have regard to the advice if one is given by the NAC.
  1. In any event, in the present case, Ms ‍Li’s reliance on the RO’s lack of seeking an advice from the NAC before determining the validity of Mr ‍Chan’s nomination as a material irregularity is, with the greatest respect, also without substance in this respect.
  2. Under section ‍5 of the NAC Regulation, Mr ‍Chan (as a prospective candidate) was equally entitled to apply to the NAC for an advice as to his eligibility and qualification to be nominated, and the NAC must give an advice in this respect.[26] Under section ‍17(b) of the EAC Regulation, if Mr‍ Chan had applied for such an advice, the RO must also consider the advice before making the decision as to whether Mr ‍Chan was validly nominated.  But Mr‍ Chan himself also did not apply to the NAC for an advice.  Instead, he had sought legal advice from his own legal representatives, D&A.  In the premises, it is difficult to see how it is open to Mr ‍Chan to complain as a material irregularity that the RO had failed to ask for a NAC advice when he himself had similarly decided not to apply for one.  It is similarly untenable in Mr ‍Chan’s complaint that it was inappropriate for the RO to have sought legal advice from the Department of Justice instead of the NAC.
  3. 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.

C4.    The Confirmation Form Argument

  1. This issue can be disposed of quickly.
  2. Under this ground, Ms ‍Li says the EAC has no statutory power to issue the Confirmation Form and require a candidate to sign and return it with nomination.
  3. There is no merit in this contention.
  4. It is first important to note that it is not a mandatory requirement for a candidate to sign and return the Confirmation Form for the purpose of the nomination. It is indeed common ground that a number of candidates in the General Election did not sign and return the Confirmation Form with their nominations and were still found by the respective Returning Officers to be validly nominated.
  5. Hence, the Confirmation Form can only be regarded as a means to collect further information from the candidate to aid the respective Returning Officer to decide whether a prospective candidate’s nomination is valid in relation to the compliance of the Declaration requirement. As I have mentioned above, the Returning Officer is empowered to request for “any other information” under section ‍10(10) of the EAC Regulation to assist his consideration as to the validity of a nomination.
  6. In the premises, it is clear to me that the EAC is entitled and empowered to issue the non-mandatory Confirmation Form requesting a candidate to further the information contained therein to assist the Returning Officer’s decision on the validity of a nomination. As such, the Returning Officer is also entitled to take into account a candidate’s failure to return the Confirmation Form (which is in effect the same as the candidate’s refusal or failure to reply to a request for further information by the Returning Officer) in deciding the validity of the nomination.  As again fairly and rightly accepted by Ms ‍Li at the hearing, even without the Confirmation Form, the Returning Officer (and the RO in the present case) is entitled under section ‍10(10) of the EAC Regulation to ask a candidate the same question as to whether, when the candidate signs the Declaration, he or she understands BL1, 12 and 159(4) and is fully aware of the criminal liability under section ‍103(1) for knowingly making a false declaration.
  7. I ‍therefore reject the Confirmation Form Argument and find no material irregularity for the RO in taking into account Mr ‍Chan’s failure to sign and return the Confirmation Form in deciding whether he had properly complied with the Declaration requirement.

C5.    Reasonable Opportunity to Answer Argument

  1. Ms‍ Li argues under this ground that, even if the Declaration requirement is a substantive requirement, Mr ‍Chan had not been given a fair and reasonable opportunity to answer the RO’s case against him before the Decision. This must amount to a material irregularity in the election process.
  2. The real complaint as advanced at the hearing is that Mr ‍Chan was unable to properly understand what were the basis and grounds the RO had in asking him the Question, and therefore he was not able to properly respond to the RO. In particular, Mr ‍Chan complains that:
  • The RO had not explained to him in the RO’s 25 July Letter as to why the RO regarded Mr ‍Chan and the HKNP’s advocacy of Hong Kong’s independence to be inconsistent with the declaration to uphold the Basic Law and pledge allegiance to the HKSAR.
  • The RO had failed to provide Mr ‍Chan and D&A with the DOJ Legal Advice, as a result of which, again, Mr ‍Chan was not able to properly understand the basis (legal or otherwise) made against him and to make a proper response to the Question.
  1. With respect, there are again no merits in these complaints.
  2. Mr ‍Chan’s above complaints of his inability to understand the basis and grounds of the RO in questioning his intention to uphold the Basic Law despite his signed Declaration must be viewed against the proper context and with common sense.
  3. The RO’s 25‍ July Letter stated as follows:

“我已於7‍月18‍日收到你的提名表格及諮詢律政司的意見。

  1. 《立法會條例》第‍40(1)(b)(i)‍條規定:候選人的提名表格必須載有一‍項示明該候選人會擁護《基本法》和保證效忠香港特別行政區的聲明,否則不得獲有效提明。雖然你已簽署提名表格上的有關聲明,但我從新聞媒體報導,和你及/或你報稱的政治聯繫「香港民族黨」在社交網絡發表的影片及貼文,得悉你和你擔任召集人的「香港民族黨」曾公開發表言論(包括該黨的宣言),宣稱要推動香港獨立,廢除《基本法》,以及參與立法會選舉為推動香港獨立的第‍一步。現附上其中數項新聞剪報及材料(共八頁)給你參考。
  2. 另‍一方面,選舉管理委員會擬備了一‍份確認書,藉此讓每位候選人確認於簽署提名表格內的相關聲明時,已清楚明白《基本法》第‍一條、第十二條及第一百五十九(四)‍條。根據確認書內容,候選人確認明白擁護《基本法》,包括擁護上述條文。你提交提名表格時,我已給予你兩天時間提交簽妥的確認書。正如選舉管理委員會於7‍月19‍日的新聞公報指出,如參選人沒有遞交確認書,選舉主任有權根據《選舉管理委員會(選舉程序)(立法會)規則》第‍10(10)‍條,向參選人索取進‍一步資料。至今,我並未收到你簽妥的確認書,我亦得悉你已公開表明不會簽署確認書。
  3. 在考慮你的提名是否符合《立法會條例》第‍40(1)(b)(i)‍條的規定時,我留意到及需考慮上述事項。
  4. 有見及此,在我正式決定你的提名是否有效前,我現根據《選舉管理委員會(選舉程序)(立法會)規例》第‍10(10)‍條,要求你回答下列問題,供我考慮你的提名是否有效:

問題:你是否承認,雖然你簽署了提名表格上擁護《基本法》和保證效忠香港特別行政區的聲明,但事實上你仍然繼續主張和推動香港獨立?

  1. 我將會考慮你的提名表格、對上述問題的答覆,以及所有相關資料,然後決定你的提名是否有效。請注意,此電郵、你的回覆連同提名表格的副本會按《選舉管理委員會(選舉程序)(立法會)規例》第‍14‍條供公眾查閱。請於2016‍年7‍月26‍日下午4‍時或之前以電郵(…)或傳真(…)回覆我。如你未能在上述限期前給我回覆,我將會按相關法律和所有相關資料決定你的提名是否有效。”
  2. The RO’s 25 ‍July Letter and the Question must be viewed against the following context:
  • The HKNP held a press conference on about 28 ‍March 2016 (with Mr ‍Chan being the convenor and spokesman) about the setting up of the HKNP, and announced its object to advocate the independence of Hong Kong from the PRC to become an independent republic, and stated openly that it would not recognise the Basic Law. Mr‍ Chan was reported to have said also that the HKNP would use “whatever effective means available” to push for independence, including fielding of candidates in the LegCo elections in September 2016 and co-ordinating with other pro-independence localist groups.  The press conference was widely reported in the newspapers in Hong Kong.[27]
  • Immediately thereafter in response to this, the Hong Kong Government issued a press statement on 30 ‍March 2016 stating that, “Hong Kong SAR is an inalienable part of [the PRC]. Any suggestion that Hong Kong should be independent or any movement to advocate such ‘independence’ is against the Basic Law…”.[28]
  • Then on 1 ‍April 2016, the Secretary for Justice issued a press statement[29] again stating that advocating the independence of Hong Kong was contrary to the fundamental principle of Hong Kong being an inalienable part of the PRC that underlined the Basic Law which was expounded in the Basic Law, and was thus clearly contrary to the Basic Law itself.
  • On 20 ‍April 2016, the Government issued a press release[30] of the reply given by the Acting Secretary for Constitutional and Mainland Affairs in the LegCo in answer to questions by a LegCo member concerning the HKNP advocating the independence of Hong Kong. Relevantly, the answer reiterated that “the HKSAR is an inalienable part of [the PRC] (whether that fact itself or its stipulation in the Basic Law) does not have any time limit.  The provision in the Basic Law stating ‘remained unchanged for 50 ‍years’ refers to the preservation of the previous capitalist system and way of life of Hong Kong for 50 ‍years after its return to the motherland.  It does not mean that the sovereignty over Hong Kong can be changed after 50‍ years.”  It further repeated that the Chief Secretary had pointed out earlier that “Hong Kong has always been an inalienable part of China, and that ‘One country, two systems’ is a constitutional requirement.  Therefore, any views that advocate the independence of Hong Kong (‘Hong Kong independence’) are wrong, and are in themselves in contravention of ‘one country, two systems’ and the Basic Law, and in complete disregard of the well-being of seven million Hong Kong people.”
  • On 14 ‍July 2016, the EAC released the press statement[31] announcing the issue of the Confirmation Form which, as explained above, directed the candidate’s attention of BL1, 12 and 159(4), and the importance of making a truthful Declaration. As mentioned above, BL1 and 12 set out the underlying principle that Hong Kong is an inalienable part of China, and BL159(4) stipulates that any amendments to the Basic Law shall not contravene the established policies of the PRC regarding Hong Kong.
  • On 18 ‍July 2016, Mr ‍Chan submitted the nomination form with the signed Declaration, but did not return the Confirmation Form.
  • On 19 ‍July 2016, the Chairman of the EAC issued a press statement,[32] stating, among others that, a candidate would not be validly nominated unless he had signed the Declaration, and that the Confirmation Form would (a) ‍assist the Returning Officer to discharge his duties to ensure that all candidates fully understood the legal requirements and the responsibilities concerned, and were bona fide in signing the Declaration in the nomination form; and (b)‍ enable the candidate to confirm that in signing the Declaration, he or she clearly understood the Basic Law and BL1, 12 and 159(4). The Chairman also stated that if a candidate had not submitted the Confirmation Form, the Returning Officer had the legal power under the EAC Regulation to ask for further information from the candidate.  Further, the Returning Officer would ask for advice from the Department of Justice as when necessary and took appropriate action to ascertain whether or not the nomination of the candidate concerned had complied with the legal requirement.
  • On 14 ‍July 2016, the newspaper HK01 published an article which reported that Mr ‍Chan stated that he had not received any email from the RO asking him if he still continued to advocate Hong Kong’s independence after signing the Declaration. He said if he received such an enquiry, he might choose not to reply as there was no legal requirement for him to respond.  It is also reported that Mr ‍Chan might consider signing the Confirmation Form if there was solid legal basis for it.  In particular, when asked whether there was inconsistency between signing the Confirmation Form and advocating independence of Hong Kong, he disagreed and said everyone could disagree with the Basic Law, but still complied with it in conduct so as to enable the legal system to continue to operate.  He further said if he could become a LegCo member, he would seek to amend or abolish the Basic Law through legal process.  He said the Basic Law was not a bible, and could be amended.[33]
  • On 25‍ July 2016, it was reported in the Hong Kong Economic Journal[34] that Mr ‍Chan insisted that there was no inconsistency between upholding the Basic Law and advocating Hong Kong’s independence. He was also reported to have said that if he received any inquiry from the RO concerning his political stance, he had no legal obligation to reply.
  • At the same time, on 25 ‍July 2016, D&A wrote a letter to the RO stating that there was no legal basis for requiring Mr ‍Chan to sign and return the Confirmation Form, and Mr ‍Chan did not intend to do so. D&A stressed that the failure to submit the form was not a basis for invalidating Mr ‍Chan’s nomination and urged the RO to promptly process the nomination and determine its validity.
  • In the afternoon of 25 ‍July 2016, the RO emailed to Mr ‍Chan the RO’s 25 July Letter and asked him the Question.
  • On 26 ‍July 2016, Mr ‍Chan emailed a letter to the RO which stated the following:

“Thank you for your letter by email dated 25 July 2016, which I received at 4:10 pm yesterday (‘the Letter’).

In the Letter, you state that you sought and received advice from the Department of Justice prior to writing to me, still, the content of your letter and the information you seek to elicit from me is of concern.

In order to respond to the Letter, I too have taken legal advice and I comment as follows:

  1.       As you point out, the Legislative Council Ordinance, Cap 542 (‘LCO’), section40(1)(b)(i) requires me to make declarations to the effect that I swear to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region. As you can see from my nomination form, I have made those declarations. That is all that the law requires of me and as such, I have complied with the legal requirements of the LCO.
  2.       Your request does not relate to any matter in respect of which you are by law entitled to request information and is irrelevant to the validity of my nomination. I therefore, decline to answer. If you can inform me on what basis you are entitled to make such request, I will consider. The political views I hold and advocate are a matter solely for consideration by the voters in the constituency in which I propose to stand, not for you as the Returning Officer.
  3.       Whereas I confirm that I have read and understand the Basic Law, I would like to draw your attention to some of its provisions that are directly relevant, including: Article 26 that protects my right to stand for election and Article 68 that requires that the Legislative Council be constituted by election.
  4.       There is no prohibition in the Basic Law or the LCO that specifically prevents persons, based on their political views, from standing for election. To the contrary, under Article 39 of the Basic Law, the rights set out in the Hong Kong Bill of Rights (‘BOR’), are enjoyed by all Hong Kong people. These include: the right to participate in politics and stand for election and the right to freedom of expression and opinion. Under articles 1(1) and 22 of the BOR, no one may be denied these rights or discriminated against on the grounds of their political beliefs.
  5.       I would also like to draw your attention to Article 26 of the Basic Law that guarantees to me and my supporters the right to participate in political life and elections without any of the distinctions mentioned in article 1(1) of the BOR and without unreasonable restrictions.
  6.       Regarding the final paragraph of your letter, I am puzzled and surprised by your claim that you ‘will consider [my] Nomination Form, the answer to the above question, and all the relevant information, and decide whether your nomination is valid.’ With respect, I would remind you that the law as it stands permits you only to consider the criteria set out in section 16(3) of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, Cap 541D.”
  • On the same day:
  • In similar vein, D&A on behalf of Mr‍ Chan wrote to the RO concerning the Question. It was stated that “we are concerned that your letter suggest that you intend to consider extraneous matters when exercising your duties under section ‍16 of the [EAC Regulation].”  They reminded the RO that under BOR21, he could not discriminate Mr ‍Chan in his exercise of the right to stand for election on the basis of his perceived or actual political or other opinions.  They then said in light of those obligations, the RO should explain how a candidate’s intention to continue to promote and push for Hong Kong’s independence bears on the validity of the Declaration.  The letter ended by saying that upon receiving the RO’s response, Mr‍ Chan would consider furnishing the RO with further information.
  • Mr ‍Chan held a press conference. He stressed again that there was no legal basis for the RO to look behind the fact that the Declaration had been signed by him to determine the validity of his nomination.  In particular, he insisted that the RO could not look at or vet his political stance to determine the validity of the nomination.  He also said that “upholding the BL” was a political manoeuvre “政治操作”, and that it was similarly a political manoeuvre that he signed the Declaration, and he still maintained the stance to advocate the independence of Hong Kong and abolition “廢除” of the Basic Law.
  • On 27 ‍July 2016, the RO replied to both Mr ‍Chan and D&A with the same letter, stating that “the general legal and factual basis of my requirement for you to provide further information to me has been set out in my letter dated 25 ‍July 2016. Unless I hear from you further, I will proceed to make a decision on the validity of your nomination form in accordance with all relevant laws and materials.”
  • On 29 ‍July 2016, D&A wrote to the RO chasing for a determination of Mr ‍Chan’s nomination validity.
  • On 30‍ July 2016, the RO made the Decision.
  1. In light of the above context and applying common sense, it is obvious that:
  • It must be reasonably plain to Mr ‍Chan that the RO asked the Question as he formed the preliminary view that advocating Hong Kong’s independence was entirely contrary to the “one country, two systems” principle that fundamentally underlines the constitutional order for enactment of the Basic Law and the establishment of HKSAR. The pursuit of the independence of Hong Kong would in substance and in effect seek to abolish the fundamental premises upon which the Basic Law was enacted, and thus result in its abolition.  As demonstrated in the materials above, Mr ‍Chan and the HKNP themselves had indeed also advocated for the abolition of the Basic Law when seeking to establish an independent Hong Kong as a republic.  Seeking to abolish the Basic Law must on the face of it be inconsistent with having an intent to uphold (which objectively means to support, maintain, and embrace) the Basic Law.  In any reasonable objective view, advocating the independence of Hong Kong with the abolition of the Basic Law objectively must at the least prima facie be the very antithesis of an intention to “uphold” the Basic Law.
  • All along, in light of the public debates and opinions on whether there was such inconsistency between making the Declaration and advocating Hong Kong’s independence, Mr ‍Chan only maintained the position that, as a matter of law (as he was legally advised):

(a)     the Declaration requirement under section ‍40(1)(b)(i) was complied with by the mere signing of it;

(b)    the RO had no legal basis and power to ask him anything concerning the making of the Declaration other than ascertaining whether it had been signed; and,

(c)     the RO could not determine the validity of his nomination based on his political views.

  • Hence, it was not a case where Mr ‍Chan was at a loss (as he presently alleges in the petition and at the hearing) as to why the RO could form a view that his advocacy of Hong Kong’s independence was inconsistent with an intent to uphold the Basic Law. The RO’s bases, as I have explained above, must have been objectively obvious to him.
  • Mr ‍Chan’s real contention as demonstrated in his press conferences and his and D&A’s above letters, was only that, as a matter of law, the RO was not entitled to look at those bases. The battle line was thus clearly drawn.  It was not that he did not understand the RO’s reasons for asking the Question.  Rather, he and his legal advisers were only saying that the RO was not legally entitled to do it that way, and thus he refused to address the Question.  This is purely a matter of difference in legal views.
  • Thus, upon legal advice, he had taken a position not to answer the Question on legal basis, not because he did not know how to reply as he could not understand why the RO formed the preliminary view that advocating Hong Kong’s independence was inconsistent with the intent of upholding the Basic Law. Indeed, as shown in the HK01 and Hong Kong Economic Journal reports mentioned above, it was open for him to explain why he believed there was no conflict between the two.
  1. I therefore do not accept that he was not given a reasonable opportunity to answer the Question because he was not in a position to understand the RO’s reasons for asking it. Mr Chan therefore fails to show that there is a material irregularity to the election in this respect.
  2. The complaint that he was not given the DOJ Legal Advice resulted in the unfairness of the procedure is also in my view without merits.
  3. Leave aside the point that the legal advice is protected by legal privilege and the RO was entitled not to reveal it, this complaint is in substance the same point that Mr ‍Chan was not given enough information or materials by the RO to enable him to understand the RO’s basis of questioning him his intention to uphold the Basic Law.
  4. However, as explained above, Mr ‍Chan and his legal advisers objectively must be in a position to understand the RO’s reasons as to why he formed preliminary view that advocating the independence of Hong Kong was inconsistent with Mr‍ Chan having the intention to uphold the Basic Law as he had sought to declare by way of the Declaration. Mr‍ Chan and his legal advisers had simply maintained their views that the Declaration requirement was only a requirement in form and the RO did not have any statutory basis to look beyond the fact that the Declaration had been signed, and to inquire further as to whether Mr ‍Chan had a genuine intention to uphold the Basic Law.  Mr ‍Chan was entitled to hold on to his legal position, but he must also accept the consequence if that turned out to be incorrect.
  5. Further and in any event, I am not satisfied Mr ‍Chan had suffered any material prejudice in the election process for not having been provided with the DOJ Legal Advice. It is not a case that, had Mr ‍Chan been given the DOJ Legal Advice, he would have been convinced as to the RO’s legal basis to ask him the Question and somehow he would have replied to the RO with further information.
  6. The fact is, at this petition hearing, after knowing the fullest legal arguments advanced by Mr ‍Yu for the RO, Mr‍ Chan through Ms ‍Li has continued to forcefully maintain the position with full arguments that the Declaration requirement is only a requirement in formality and that the RO had no power to make enquiries to ascertain whether he had a true intention to uphold the Basic Law. This demonstrates that it would not have made any difference even if the DOJ Legal Advice had been provided to him at the time of Question.  This cannot amount to a material irregularity to the election process.
  7. In the premises, I conclude that Mr‍ Chan had been given a reasonable opportunity to respond to the RO’s inquiries, including the Question, before the RO made the Decision. There is therefore no material irregularity in the election process as contended by Mr ‍Chan in this respect.
  8. To avoid any doubt, insofar as if it is also argued by Mr ‍Chan in the petition that there was no clear, cogent and compelling materials for the RO to reach the conclusion that plainly Mr ‍Chan did not have a genuine and truthful intention to uphold the Basic Law, there is also no substance in this.
  9. The materials considered by the RO (as summarized at paragraph ‍131 above), coupled with Mr ‍Chan’s refusal to sign the Confirmation Form and to reply to the Question, clearly and unequivocally show that Mr ‍Chan did and continue to advocate Hong Kong’s independence and the abolition of the Basic Law notwithstanding the signing of the Declaration. For the same reasons I have explained above at paragraphs ‍53 ‑ 58 and 132(1) above, objectively this is the exact opposite of having an intention to “uphold” the Basic Law. 
  10. The explanations given by Mr ‍Chan as reported in HK01 and the Hong Kong Economic Journal that he and the HKNP were only seeking to abolish the Basic Law by seeking to amend it so as to enable Hong Kong’s independence, and that they would continue to comply with its provisions before any such successful amendments would not assist Mr ‍Chan. Leave aside it is obvious that under BL159(4), the Basic Law cannot be amended in any way that would be contrary to the PRC’s adopted principle of “one country, two systems” for Hong Kong, as observed above, an intention to “uphold” the Basic Law denotes not just a compliance of it but also an intention to support and promote it.  A pronounced unequivocal intention to advocate Hong Kong’s independence and the abolition of the Basic Law even through a purported effort of amendments is obviously inconsistent with the intention to support and promote (hence to “uphold”) the Basic Law.
  11. The conclusion reached by the RO based on the materials before him is therefore one that is clearly correct in the circumstances of the present case.
  12. There is no material irregularity in this respect and I must also reject the Reasonable Opportunity to Answer Argument.

C6.    The Constitutionality Argument

  1. Under this ground, Mr ‍Chan contends that the Decision was contrary to BL25, 26, 27, 32, 39 and 79(7), and BOR1, 15, 16, 18, 21 and 22 (collectively “the Relevant Constitutional Provisions”). It is important to note that it is not Mr‍ Chan’s challenge that section ‍40(1)(b)(i) itself is unconstitutional.
  2. The Relevant Constitutional Provisions provide:
  • Under the BL:

“Article 25

            All Hong Kong residents shall be equal before the law.

Article 26

            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.

Article 27

            Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

Article 32

            Hong Kong residents shall have freedom of conscience.

            Hong Kong residents shall have freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public.

Article 39

            The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

          The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

Article 79

            The President of the Legislative Council of the Hong Kong Special Administrative Region shall declare that a member of the Council is no longer qualified for the office under any of the following circumstances:

(1) When he or she loses the ability to discharge his or her duties as a result of serious illness or other reasons;

(2) When he or she, with no valid reason, is absent from meetings for three consecutive months without the consent of the President of the Legislative Council;

(3) When he or she loses or renounces his or her status as a permanent resident of the Region;

(4) When he or she accepts a government appointment and becomes a public servant;

(5) When he or she is bankrupt or fails to comply with a court order to repay debts;

(6) When he or she is convicted and sentenced to imprisonment for one month or more for a criminal offence committed within or outside the Region and is relieved of his or her duties by a motion passed by two-thirds of the members of the Legislative Council present; and

(7)  When he or she is censured for misbehaviour or breach of oath by a vote of two-thirds of the members of the Legislative Council present.”

  • Under the BOR:

                                        “Article 1

               Entitlement to rights without distinction

  • The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
  • Men and women shall have an equal right to the enjoyment of all civil and political rights set forth in this Bill of Rights.

...

                                  Article 15

     Freedom of thought, conscience and religion

(1)    Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

(2)    No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

(3)    Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

(4)    The liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions shall be respected.

                                  Article 16

            Freedom of opinion and expression

(1)    Everyone shall have the right to hold opinions without interference.

(2)    Everyone shall have the right to freedom of expression; this right shall include 12 freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3)    The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary-

(a)  for respect of the rights or reputations of others; or

(b)  for the protection of national security or of public order (ordre public), or of public health or morals.

                         Article 18

              Freedom of association

(1)    Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

(2)    No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms or others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

(3)    Nothing in this article authorizes legislative measures to be taken which would prejudice, or the law to be applied in such a manner as to prejudice, the guarantees provided for in the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to organize as it applies to Hong Kong.

                                  Article 21

               Right to participate in public life

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;

(c)  to have access, on general terms of equality, to public service in Hong Kong.

                         Article 22

      Equality before and equal protection of law

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  (emphasis added)

  1. As advanced at the hearing, Ms ‍Li relies on the Relevant Constitutional Provisions to emphasize essentially two protected rights (“the Relevant Protected Rights”):
  • The right to stand for election.
  • The right to freedom of expression and association.
  • The right against discriminatory treatment based on a person’s political opinions.
  1. Ms‍ Li submits that the Decision in invalidating Mr ‍Chan’s nomination falls foul of these protections because:
  • The RO explicitly targets Mr‍ Chan for extra-legal scrutiny of his political opinions and his political affiliation (ie, the HKNP).[35]
  • The RO is not able to clearly state how Mr ‍Chan has broken (or proposed to break) the law. Instead, the RO says that his support for Hong Kong independence “mutually exclusive with the legislative intent” of certain Basic Law articles.‍[36]  This is a clear exclusion based upon mere expression of political ideas.
  • There is no clear prohibition in the Basic Law (or elsewhere in the law) against mere “advocacy” or “support” for the idea of Hong Kong independence. Certainly, there is no prohibition against mere advocacy for a change in sovereignty by lawful means.
  • The RO has not relied upon clearly articulated prohibitions, or on clear breaches of the law by Mr ‍Chan. Therefore, it cannot be said that the invalidation of his nomination was based on criteria “provided by law” on reasonable or objective criteria.
  1. For the following reasons, I ‍agree with Mr ‍Yu that the constitutional challenge is misplaced.
  2. First, given that Ms ‍Li does not challenge the constitutionality of section ‍40(1)(b)(i) itself which imposes the substantive Declaration requirement, I cannot see how it can be said that the Decision itself was unconstitutional, insofar as it was rightly made based on the available materials to conclude that Mr ‍Chan did not comply with the Declaration requirement.
  3. Second, given that the Interpretation has now provided that it is a constitutional prerequisite and precondition under BL104 for a candidate seeking to stand for election to faithfully and truly uphold the Basic Law and pledge allegiance to the HKSAR, it is unarguable to say that the Declaration requirement in implementing this constitutional requirement would be unconstitutional in infringing the Relevant Constitutional Provisions. The better view must be that, as a matter of proper construction, the Relevant Protected Rights as provided under the Relevant Constitutional Provisions should be construed together and read subject to the constitutional requirements under BL104.
  4. Third, and in any event, it is not disputed that the Relevant Protected Rights are not absolute rights. They can be restricted subject to meeting the proportionality test in that (a) ‍the subject restriction is to serve a legitimate aim; (b) ‍the restriction is rationally connected to the legitimate aim; (c) ‍the restriction as a measure is no more than reasonably necessary (or is not “manifestly without reasonable foundation”) to achieve that aim; and (d) ‍a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the Relevant Protected Rights of the individual, asking in particular whether pursuit of a societal interest results in an unacceptably harsh burden on the individual: Hysan Development Co Ltd v Town Planning Board (2016)‍ 19 HKCFAR ‍372 at paragraphs‍ 134 - 141.
  5. In this respect, as rightly submitted by Mr ‍Yu, electoral regimes involve a host of disparate political and policy considerations. In the constitutional framework of the HKSAR, it is the LegCo who has the power and responsibilities to make such political and policy decisions.  Thus, whilst the Government bears the burden to justify the legislative restriction as an appropriate or justified one vis-à-vis an alleged constitutional right concerning election, the court would accord a wide margin of discretion to the legislature, as this is pre-eminently a political judgment.[37]
  6. Where relevant, the concept of margin of discretion or level of scrutiny applies to all limbs of the proportionality test: see Fok Chun Wa v Hospital Authority (2012) ‍15 HKCFAR ‍409 at paragraph ‍75(2), per‍ Ma ‍CJ.
  7. Mr ‍Yu submits that the Declaration requirement (and hence also the Decision) clearly satisfies the proportionality test.
  8. Before I look at Mr ‍Yu’s specific submissions relating to the Declaration requirement under various stages of the proportionality test, it is perhaps helpful to first examine the authority of McGuinness v United Kingdom, App No‍ 39511/98, which Mr ‍Yu has heavily relied on in support of his submissions.
  9. McGuinness is a decision by the European Court of Human Rights in relation to a challenge by Mr ‍Adams on the constitutionality of the statutory requirement of an elected member of the UK Parliament to take an oath to swear allegiance to the Queen before he could formally become a parliamentary member. The relevant facts are these.
  10. Mr ‍Adams is an Irish citizen born and living in Northern Ireland. He was also a member of the party Sinn Fein.  It was an Irish republican political party committed to the principle that the Irish people have the right to self-determination.  In the 1997 general election, Mr ‍Adams was elected in his constituency in Northern Ireland to be returned as a member of the UK Parliament.
  11. On the other hand, under section ‍1 of the Parliamentary Oaths Act ‍1866, elected members of the Parliament must take the oath of allegiance to the Queen as a condition of taking the seats. Mr ‍Adams during his electoral campaign made known to his constituents that he would not take the oath of allegiance as this was inconsistent with the official Sinn Fein policy.  He however thought that elected members who did not take the oath were nonetheless entitled to use the services and facilities made available to members of parliament.
  12. Mr ‍Adams refused to take the oath. He was therefore not entitled to take his seat at the Parliament.  Further, by a decision made by the Speaker of the House of Commons in a statement to the House, the Speaker also decided to extend the restrictions to members who had not taken to oath of allegiance barring them from the use of the services and facilities of the Parliament.
  13. Mr‍ Adams first sought leave in the High Court to judicially review the Speaker’s decision and for a declaration that the 1866‍ Act in requiring him to swear or affirm allegiance to the Queen was incompatible with his constitutional rights of freedom of expression and as a Member of Parliament. His leave application was refused.
  14. Mr ‍Adams then took his challenge directly to the European Court of Human Rights. Relevantly, in gist, he said the statutory requirement to swear an oath of allegiance to the British monarch infringed his right to freedom of expression under Article‍ 10 of the European Convention on Human Rights,[38] the right of his voters who elected him to represent them to express their views in the Parliament under Article ‍3 of Protocol No ‍1 to the Convention,[39] and the right to equal treatment under Article ‍14 of the Convention[40] in discriminating him on the grounds of his religion, political opinion and national origin.
  15. All his challenges were dismissed by the European Court of Human Rights as “ill-founded”.
  16. In relation to the challenge based on freedom of expression (under Article‍ 10 of the Convention), although noting the importance of freedom of expression, especially for elected representatives of the people, the court rejected the contention that the requirement to take the oath of allegiance was an unjustified and disproportionate infringement of that right:
  • It held that the requirement was a measure clearly “prescribed by law” since it had the statutory basis under the 1866 Act.[41]
  • It also held that the restriction of taking the oath of allegiance served a legitimate aim to protect “the constitutional principles which underpin a democracy” and the oath of allegiance required in the UK formed “part of the constitutional system” of the State, which was based on a monarchical model of government. The court regarded the requirement that elected members of parliament take oath of allegiance to the reigning monarch can be reasonably viewed as “an affirmation of loyalty to the constitutional principles” which supported the workings of representative democracy (ie, the Parliament) in the respondent State.  The court confirmed that “it must be open to the respondent State to attach such a condition, which is an integral part of is constitutional order, to membership of Parliament and to make access to the institution’s facilities dependent on compliance with the condition”[42].
  • It rejected Mr ‍Adam’s complaint that the restriction was a disproportionate infringement of his right. It held that the oath requirement can be considered a “reasonable condition attaching to elected office having regard to the constitutional system” of the UK.  It also observed that Mr‍ Adams himself voluntarily renounced his right to take the seat in refusing to take the oath.  Even though Mr ‍Adams was denied access to services and facilities of the House of Commons, there was nothing to prevent him from expressing his views of his constituents and party in other contexts, including meetings outside the Parliament with participation of government ministers and other members of parliament.[43]
  1. The court further rejected the challenge that the oath requirement infringed his rights to election and the voters’ right in that it did not ensure the free expression of the opinion of the voters in the choice of the legislature:[44]
  • The court first reiterated the principle that the Contracting States have a wide margin of appreciation in subjecting the rights to vote and stand for election to prescribed conditions, as long as the conditions did not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness, and that they were imposed in pursuit of a legitimate aim, and that the means employed were not disproportionate (ie, meeting the proportionality test).
  • The court found that the Sinn Fein voters enjoyed the same rights to vote and to stand for election on the same legal footing as voters of other political persuasions. They were not deprived of the rights on account of the fact that Mr ‍Adams had to take the oath as a condition of taking his seat if elected.  The court emphasized that the voters voted for Mr‍ Adams “in full knowledge of this requirement, which the Court has earlier found to be a reasonable one attaching to parliamentary office”.
  1. The court similarly rejected the challenged relating to discrimination based on, among others, political opinion:[45]
  • The court underlined that as a matter of law, difference in treatment was discriminatory if “it has no objective and reasonable justification”, if “it does not pursue a legitimate aim” or if “there is not a reasonable relationship of proportionality between the means employed and the aim sought” (ie, in effect if in failing the proportionality test). It emphasized again that the Contracting States enjoyed a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justified a different treatment.
  • The court observed that the oath requirement and the Speaker’s decision applied to all elected representatives, and the measures might have “weighed more heavily” on Sinn Fein members was to be explained “in terms of that party’s own official policy on oath requirement”. For the same reasons the court has rejected the challenge based on a disproportionate restriction of freedom of expression, the court similarly found that the oath requirement and the Speaker’s decision were not to discriminatory as it satisfied the proportionality requirement.
  1. Given that the arguments raised by Ms‍ Li to challenge the constitutionality of the Decision are effectively the same or similar as to those advanced by Mr ‍Adams in McGuinness, the European Court of Human Rights’ decision and reasons in rejecting those arguments are therefore clearly relevant when considering the merits of Ms ‍Li’s arguments.
  2. Ms ‍Li however seeks to distinguish McGuiness from the present case. Leading counsel says in McGuiness, since Mr‍ Adams had decided not to take the oath, there was no issue raised before the court as to whether a substantive requirement for a genuine intention to make the declaration (or an oath) amounts to a disproportionate restriction of the Relevant Protected Rights.  The issues are therefore very different, and the reasoning in McGuinness therefore cannot be directly applied to the challenges raised by Mr ‍Chan.
  3. I ‍am unable to accept Ms‍ Li’s submissions. The distinction leading counsel seeks to make is one that is without substance.  In my view, it cannot be seriously suggested that the court in determining the challenges raised in McGuinness regarded it as not necessary for the member of parliament to take the oath genuinely and truthfully.  As this court has observed in The Leung/Yau CFI Judgment at paragraph‍ 32, even under common law, an oath taker is expected to take the oath faithfully and truthfully.  There is also not a single suggestion in McGuinness that the court’s conclusion in rejecting the constitutional challenges is premised on the understanding that the oath requirement does not require the member of parliament to be genuine and truthfully in taking it.
  4. I‍ therefore find the reasoning in McGuinness greatly relevant to the consideration of Ms ‍Li’s contentions under the Constitutionality Argument.
  5. With this in mind, I now to turn to consider whether the substantive Declaration requirement under section ‍40(1)(b)(i) satisfies the proportionality test.

Legitimate aim

  1. Mr ‍Yu has identified three legitimate aims (“the Legitimate Aims”) to be served by the substantive Declaration requirement.
  2. First, Mr‍ Yu says it is to protect the constitutional principles which underpin the HKSAR’s constitutional order:
  • The requirement that a candidate truthfully declare that he will uphold the Basic Law and pledge allegiance to the HKSAR is to require him to confirm that he recognizes the Basic Law as the supreme law of the HKSAR and PRC’s sovereignty over the HKSAR under the “one country, two systems” principle and arrangement.
  • Under the rubric “for respect of the rights or reputation of others” (see HKSAR v Ng Kung Siu (1999)‍ 2 HKCFAR ‍442 at 457A), the requirement of the Declaration (and in turn the LegCo Oath) can reasonably be viewed as an affirmation of loyalty to the new and underpinning constitutional order and principles, including upholding the Basic Law as the constitution of the HKSAR of the PRC and pledging allegiance to the HKSAR as an inalienable part of the PRC.
  1. Adopting the same reasons in McGuinness as summarized at paragraph‍ 164 above, I accept that this must be regarded as a legitimate aim of the Declaration requirement.
  2. Second, Mr ‍Yu says it must also be a legitimate aim of the requirement to maintain public confidence in the LegCo and the election process, and ensure the proper operation of the LegCo:
  • Accepting a false declaration as a valid supporting document for a candidate’s nomination wholly undermines the honesty, integrity and fairness of the election process.
  • An elected LegCo member is required to swear to uphold the Basic Law under BL104. The refusal to comply with such constitutional requirement may lead to disqualification from office (see The Leung/Yau CA Judgment; section ‍21 of the ODO and the Interpretation).  Allowing a candidate who has made an untrue Declaration to stand for election leads to uncertainty in the future operation of the LegCo.  Moreover, it would potentially be highly disruptive, and damaging to the standing of LegCo and public confidence in the institution, if an elected LegCo member were disqualified from office under section ‍21 of the ODO.
  • Accordingly, from a systemic perspective, it is well within the margin of discretionary judgment for the legislature, in enacting section ‍40(1)(b)(i), to consider it preferable to allow such situations to be avoided or minimized by a mechanism that prevents persons who have no real intention of upholding the Basic Law from running for and taking up office in the first place. This purpose of section‍ 40(1)(b)(i) indeed has been fairly accepted by Ms‍ Li (see paragraph ‍43 above)
  • While it might be that a person who has been elected may be subsequently prosecuted for and found to have made a false declaration, and later barred or removed from occupying office, it is well within the LegCo’s margin of discretionary judgment to make it an objective to avoid the necessity of such disqualification or removal proceedings and their associated complications. While the making of a false declaration may have other legal consequences besides a finding by a Returning Officer that a candidate has submitted an invalid declaration, it is a non-sequitur to suggest that such other legal consequences are in fact the only substantive consequences of a factually false declaration, and in effect that the signing of a declaration is of itself a mere formality for the purposes of nomination.
  1. Again, I agree that maintaining public confidence in the election process to return a member who could formally assume the office in the LegCo must also be a legitimate aim.
  2. Finally, Mr ‍Yu submits the requirement is for the protection of public order (ordre public):
  • In Ng Kung Siu, the Court of Final Appeal held that the concept of public order (ordre public) includes the legitimate interests in the protection of the national and regional flags (at 457E-460E).
  • Li ‍CJ held that (a) the boundary of the concept cannot be precisely defined; (b) the concept includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole; and (c) the concept must remain a function of time, place and circumstances (at 459I-460E).
  • In the context of protection of flags, Li‍ CJ emphasized that, on 1‍ July 1997, the PRC resumed the exercise of sovereignty over Hong Kong being an inalienable part of the PRC and established the HKSAR under the principle of “one country, two systems” and, in these circumstances, the legitimate societal interests in protecting the national flag and the legitimate community interests in the protection of the regional flag are interests which are within the concept of public order (ordre public) (at 460B-E).
  • If the protection of the national and regional flags as unique symbol of the one country and the HKSAR as an inalienable part of the PRC can be justified, then by analogy, or indeed a fortiori, the substantive requirement that a LegCo candidate should uphold the Basic Law and pledge allegiance to the HKSAR of the PRC must be justifiable under the concept of public order (ordre public), because it does not merely act as symbol, but also as embodiment of the legal requirements and preconditions and an affirmation of loyalty to the new constitutional order under the Basic Law and the status of the HKSAR as an inalienable part of China. In other words, in the Hong Kong context, the safeguarding of the fundamental constitutional order under the Basic Law is an essential component of public order.
  1. In this respect, Ms ‍Li disagrees. Leading counsel submits that:
  • The rights or reputations of others, protection public order (ordre public), and of public health or morals are clearly not relevant in these circumstances. Mr ‍Chan’s proposals do not curtail or interfere with these public interests.
  • Further, although accepting that Mr‍ Chan’s advocacy of independence does concern the existence of the nation, its territorial integrity and political independence, Ms ‍Li contends that protection of national security may only be invoked to justify measures limiting certain rights when they are taken “to protect the existence of the nation or its territorial integrity or political independence against force or threat of force”. Ms‍ Li cites paragraph ‍29 of the Siracusa Principles in aid of her submissions.[46]
  • Mr ‍Chan has not proposed (and in fact has now disclaimed) the use of force to achieve Hong Kong independence.[47] His advocacy of constitutional change has taken the form of public discussion, and involvement in the electoral process.  He has not proposed unilateral dissolution by Hong Kong people of the sovereign relationship with the PRC, but engagement with the legal authorities to procure change.
  1. I ‍agree with Mr ‍Yu that Ms ‍Li’s above submissions are misplaced.
  2. We are here concerned with the preconditions and legal requirements for nomination in the LegCo. The focus is on the constitutional requirement for candidates contending a LegCo seat to uphold the Basic Law and pledge allegiance to the HKSAR (and the use or threat of force is quite beside the point).  The Declaration in section‍ 40(1)(b)(i) dovetails with this constitutional requirement.  In any event, it cannot be right to suggest that such constitutional requirement can be fulfilled simply by a person not resorting to the use or threat of force, even though he does not genuinely and truthfully intend to uphold the Basic Law and pledge allegiance to the HKSAR (or, even worse in Mr ‍Chan’s case, by seeking to nullify the Basic Law and put an end to the HKSAR by “secession” from the PRC).
  3. Further, and in any event, as pointed out by Mr ‍Yu, paragraph‍ 22 of the Siracusa Principles[48] also defines “public order (ordre public)” that justifies the limitation of the rights as follows:

“22.    The expression ‘public order (order public)’ as used in [the ICCPR] may be defined as the sum of rules which ensure the function of society or the set of fundamental principles on which society is founded.  Respect for human rights is part of the public order (order public).”

  1. HKSAR as a society is founded on the core or fundamental principle of “one country, two systems”. Hence, to protect and preserve this fundamental principle by the Declaration requirement falls within the justified purpose of maintaining “public order (order public)” even if one is to apply the Siracusa Principles.
  2. In the premises, I reject Ms‍ Li’s contentions and also accept that this is a legitimate aim for the Declaration requirement.

Rational connection

  1. The requirement that a candidate must make a truthful declaration only serves to deny candidacy to those who advocate for the negation of the constitutional framework and order upon which the election is based on. The requirement provides clear rational connection between the restriction and the Legitimate Aims.  Cf: also the reasons in McGuiness as summarized at paragraph ‍164 above.

Proportionate measure

  1. In general, the court would allow more room for restrictions on the right to stand as a candidate for election than in the context of the right to vote.[49] It is also trite that “States enjoy considerable latitude to establish in their constitutional orders rules governing the status of parliamentarians including criteria for disqualification”: Gitonas v Greece (1998) ‍26 EHRR‍ 691.
  2. Once the court has accepted that there is a legitimate aim in ensuring that candidates for the LegCo at least recognize and support the legitimacy and existence of the Basic Law and the premise of national unity and territorial integrity under the “one country, two systems” principle, it is difficult to imagine what other alternatives can be available in achieving such aim. As emphasized in paragraph ‍1 of the Interpretation, the contents of the Declaration embody the legal requirements and preconditions to candidacy of the LegCo.  As such, it cannot be said to be disproportionate for the legislature to empower the Returning Officer to inquire into the truthful intention of the nominee making the Declaration in a clear or obvious case.
  3. Furthermore, in Wong Hin Waiv Secretary for Justice [2012] ‍4 HKLRD ‍70, Lam ‍J (as the learned VP then was) emphasized at paragraph‍ 35 the importance of considering the proportionality of electoral law in context against the historical and current state of political development in Hong Kong. The court must therefore take into account the new constitutional order of the HKSAR, including in particular the requirements under BL104 and the 1996 and 1997 PC Resolutions.
  4. In the specific political and historical context of Hong Kong, the Basic Law underpins the constitutional order of the HKSAR and with it the “one country, two systems” political model, the autonomy enjoyed by the HKSAR, safeguards for the stability and prosperity of the HKSAR and the constitutional guarantee of fundamental rights and freedoms, including BL26. At the same time, national unity and territorial integrity of the PRC with the HKSAR being part of it, is another fundamental principle on which the constitutional order is founded, as enshrined in BL1 and BL12.  It is thus consistent with the constitutional framework under the Basic Law, including the right to stand for election in BL26, for section ‍40(1)(b)(i) to give effect to a candidature requirement which protects the constitutional order.
  5. It is a fundamental constitutional important context that the HKSAR was established under the “one country two systems” constitutional order in which the HKSAR is an inalienable part of the PRC.
  6. As held by Li ‍CJ in Ng Kung Siu at 461D-E, the implementation of the principle of “one country, two systems” is a matter of fundamental importance, as is the reinforcement of national unity and territorial integrity. In that case, it was held that the protection of the national and regional flags, having regard to their unique symbolism, will play an important part in the attainment of these goals.  In the present case, the substantive requirement of the Declaration would not only have unique symbolism, but would also ensure that persons taking up the high responsibility of the office of LegCo Members would do their utmost to uphold the Basic Law and reinforce national unity and territorial integrity (or, at the very least, refrain from jeopardizing the same).  The requirement is thus necessary for the protection of others and for the protection of public order (ordre public).
  7. In any event, there is no basis for Mr ‍Chan to contend that legislature has exceeded its wide margin of discretionary judgment in this context, which includes the discretion to select between a range of reasonable alternatives.
  8. In the premises, giving due margin of discretion to the legislature, the substantive Declaration requirement in my view clearly serves as a proportionate measure to achieve the Legitimate Aims. Cf: McGuinness’s reasons summarized at paragraphs ‍164 - 166 above.

Reasonable balance

  1. The starting point is to note Ribeiro ‍PJ’s stated expectation in Hysan, supra, at paragraph‍ 73 that “in the great majority of cases, its application would not invalidate a restriction which has satisfied the requirements of the first three stages of the inquiry”
  2. The present case is plainly within the majority of cases envisaged by Ribeiro‍ PJ. Since the subject matter involves political and policy considerations, the legislature must be afforded a wide margin of appreciation in striking a reasonable balance.  The restriction only affects persons who do not genuinely and truly intend to uphold the Basic Law or bear true allegiance to the HKSAR of the PRC, which is a constitutional requirement imposed under BL104.

Legal certainty

  1. There is also nothing in Mr ‍Chan’s contention that the substantive requirement of the Declaration falls foul of the requirement of that a restriction be “provided by law”.[50] As observed by the European Court of Human Rights in McGuinness, given that the Declaration requirement has a statutory basis under section ‍40(1)(b)(i), and the court’s above construction of its scope as set out at paragraph‍ 100 above, it clearly satisfies the legal certainty requirement that it is clear and adequately accessible with sufficient reasonable precision to enable a person to regulate his conduct by seeking proper advice, including legal advices.[51]

Conclusion on the Constitutionality Argument

  1. For all these reasons, I also reject the Constitutionality Argument and find no material irregularity in this respect.
  2. OTHER MATTERS
  3. There are three more matters that I need to deal with notwithstanding my above conclusion.
  4. The first is about the contentions that, if I had accepted Mr ‍Chan’s complaints about material irregularities, whether it is still open to this court to decide afresh as a matter of fact whether Mr‍ Chan did or did not have a truthful intention to uphold the Basic Law and hence his nomination was or was not wrongly invalidated.
  5. Mr ‍Yu submits that it is, since under section ‍67(2) of the LCO, the court at the end of the trial of an election petition must determine whether the persons elected in the election were duly elected or not. Hence, leading counsel says, if say Mr ‍Chan’s nomination should have still been invalidated by looking at the evidence afresh, even if the RO in making the Decision had committed certain irregularities, it cannot be the intention of the provision that the court should still declare the elected members not duly elected, and require to have a by-election held again, as this would serve no meaningful purpose.
  6. This also raises the subsidiary question as to what is the extent of evidence that the court is entitled to look at if it is to decide the matter afresh. Can the court look at evidence that was not placed before the RO but has been filed in the election petition?  For example, as mentioned above, Mr ‍Chan has filed the 1st and 2nd ‍affirmations and explained why it is not inconsistent to on one hand have a truthful intention to uphold the Basic law and on the other hand advocate the independence of Hong Kong and the abolition of the Basic law.[52]  These are not before the RO.  In relation to this, the parties have in fact filed further written submissions after the hearing on the extent of the evidence that the court is entitled to look at, if the court is entitled to and should decide the question afresh.
  7. In my view, these questions can only be properly and appropriately answered in proper context by reference to the specific nature and kind of material irregularity found by the court to have occurred. In the premises, I do not think it is necessary or appropriate for the court to seek to answer these questions in this election petition, as the court has concluded that there were no material irregularities to the election process.
  8. The next question is whether leave should be granted for Mr ‍Ho (the 10th ‍respondent) to file and rely on his affirmation (which is essentially to exhibit a few newspaper reports) in the election petition. The initial objection is premised principally on the irrelevance of newspaper reports exhibited to the affirmation.
  9. Given that Mr ‍Shek (for Mr ‍Chan) in fact at the hearing referred to the newspaper cuttings exhibited to Mr ‍Ho’s affirmation to support Mr ‍Chan’s own contention that his position had always been to advance the independence of Hong Kong within the framework of the Basic Law, I do not see any real merits for Mr ‍Chan’s initial objection to the filing of this affirmation. I ‍would therefore formally grant leave for Mr ‍Ho to file this affirmation.
  10. Finally, Mr ‍Yu has submitted that, even if the Declaration requirement is only a formality requirement under section ‍40(1)(b)(i), the RO is still fully entitled to make the Decision based independently on BL104 read with the Interpretation. This is so since section ‍39(1)(f) of the LCO provides that a person is disqualified from being nominated as a candidate if that person is ineligible to be a candidate or disqualified from being a candidate because of the operation of “any other laws”.  In this respect, paragraph ‍1 of the Interpretation has provided clearly that it is a legal requirement and precondition for a candidate standing for the LegCo election to genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR.  Hence, Mr ‍Chan, in not having a genuine and true intention to uphold the Basic law, should also be ineligible or disqualified to be a candidate under BL104 (read with the Interpretation).
  11. The difficulty with Mr ‍Yu’s above submissions is that the RO did not rely on this as a basis in making the Decision (as at that time, the Interpretation was not even issued). In these circumstances, and given that I have already concluded that the RO was correct in arriving at the Decision based on section ‍40(1)(b)(i), I again do not think it is necessary or appropriate for me to deal with this part of Mr ‍Yu’s submissions.
  12. CONCLUSION
  13. For all the reasons set out above, Mr ‍Chan fails in all his grounds to say that there are material irregularities to the NTWGC Election.
  14. I‍ will dismiss his election petition and declare that all the persons declared to have been elected in the NTWGC were duly elected.
  15. COSTS
  16. There is no reason why costs should not follow the event. I ‍make an order nisi that costs of this election petition be to the RO with certificate for four counsel (given the great public importance of this matter), to be taxed if not agreed.  Mr‍ Chan should also bear the costs of Mr ‍Ho (the 10th ‍respondent) but only in relation to Mr ‍Ho’s application for the filing of his affirmation, to be taxed if not agreed.  To avoid any doubt, Mr Ho’s costs should only cover the costs in preparing the affirmation and in attending court to make the application (which effectively is the costs of the skeleton and counsel’s appearance in court for not more than 30‍ minutes at the first day of the hearing).  Mr ‍Chan’s own costs are to be taxed in accordance with legal aid regulations.
  17. Lastly, I thank counsel for all their assistance in this matter.

 

 

 

 

                                                                            (Thomas Au)

                                                           Judge of the Court of First Instance

                                                                              High Court

 

 

Ms Gladys Li, SC, Mr Azan Marwah, Mr Randy Shek, instructed by Daly & Associates, assigned by Director of Legal Aid, for the petitioner

 

Mr Benjamin Yu, SC, Mr Johnny Mok, SC, Mr Abraham Chan, Mr ‍Jenkin Suen, instructed by Department of Justice, for the 1st respondent

 

The 3rd respondent, represented by Sun Lawyers, attendance be excused

 

The 4th and 6th respondents, represented by Chiu, Szeto & Cheng Solicitors, attendance be excused

 

The 5th respondent, in person, present in morning session on 9 May 2017

 

The 7th respondent, in person, attendance be excused

 

The 2nd, 5th, 8th, 9th respondents, in person, absent

 

Mr Sunny Chan, instructed by KC Ho & Fong, for the 10th respondent

 

[1]              Returning Officer is appointed by EAC under section ‍78 of the LCO for each of the constituency where election is to be held.  The Returning Officer (under section ‍47) is responsible for, among others, supervising an election in accordance with the LCO and the Electoral Affairs Commission Ordinance (Cap 541).  He or she is also vested with the functions and duties provided under the LCO, which include deciding whether a person is validly nominated as a candidate or not (section‍ 42A).

[2]              They are the newspaper reports relating to Mr ‍Chan after submitting the nomination form, Mr‍ Chan and the HKNP’s video links on Mr ‍Chan’s live broadcast statements and messages posted on the internet and on Mr ‍Chan’s and the HKNP’s Facebook.

[3]              “‘Basic Law’ is defined under s.3 of the Interpretation and General Clauses Ordinance (Cap.1) as ‘the Basic Law of the Hong Kong Special Administrative Region’.”

[4]              “‘Hong Kong Special Administrative Region’ is in turn defined under s.3 of the Interpretation and General Clauses Ordinance (Cap.1) as ‘the Hong Kong Special Administrative Region of the People’s Republic of China …’.” (emphasis added)

[5]              The undisputed relevant history and materials are respectively set out in and exhibited to the Affirmation of Chung‍ Chi ‍Ching.

[6]              Chung’s Affirmation at paragraphs‍ 6 and 8.

[7]              Chung’s Affirmation at paragraph‍ 10.

[8]              Chung’s Affirmation at paragraphs 13 - 16.

[9]              The PC exercised powers delegated to it by the NPC to establish the PLC among others for the purpose of considering and passing legislation particularly in anticipation of the reunification and during the transition period immediately before and immediately after that event and for the proper administration of the HKSAR, including the confirmation of anticipatory acts done prior to 1‍ July 1997: see Hong Kong Reunification Ordinance (Cap‍ 2601).

[10]            Chung’s Affirmation at paragraphs 21 - 22.

[11]            Chung’s Affirmation, paragraph 24.

[12]            Chung’s Affirmation, paragraph 27.

[13]            Chung’s Affirmation, paragraph 28.

[14]            Medical Council of Hong Kong v Chow Siu Shek, supra, at pp156I-J and 157E-F.

[15]            Section ‍103(1) of the EAC Regulation provides “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”.  Section‍ 103(4) further provides that “election related document” means, among others, “a declaration” or “a nomination form” required or used for the purpose of the EAC Regulation.

[16]            See section ‍103(3A) of the EAC Regulation, which provides that an offence under this provision is to be an offence prescribed for the purposes of sections‍ 39 and 40 of the LCO, and sections ‍39(1)(e)(iv) and 42B(4) of the LCO.

[17]            Section‍ 7(2) and (3) of the EAC Regulation provide respectively that the nomination period can only be for the length of 14 to 21 ‍days, and must end not less than 28 days and not more than 42 ‍days before the date of the election.

[18]            BL26 provides “Permanent residents of the Hong Kong Special Administrative Region shall have the right to vote and right to stand for election in accordance with the law”.

[19]             BOR21 provides:

“Right to participate in public life

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;

(c) to have access, on general terms of equality, to public service in Hong Kong.”

[20]            International Covenant on Civil and Political Rights.

[21]            See footnote‍ 17 above.

[22]            Rule 8(6) in Schedule 2 to the Local Election (Principal Areas) Rules 1973 which provided that “The decision of the returning officer that a nomination paper is valid shall be final and shall not be questioned in any proceeding whatsoever” in contrast with Rule 8(7) which then provided “Subject to the last foregoing paragraph, nothing in this rule shall prevent the validity of a nomination being questioned on an election petition.”; and Rule 12(2) in Schedule 1 of the Representation of People Act 1983 provided “the returning officer is entitled to hold a nomination paper invalid only on one of the following grounds -…”, and sub-rules (5) and (6) respectively provided “the returning officer’s decision that a nomination paper is valid shall be final and shall not be questioned in any proceeding whatsoever”, and “Subjection to paragraph (5) above nothing in this rule prevents the validity of a nomination being questioned on an election petition”. (emphasis added)

[23]            See also sections 16, 19 and 92(3) of the EAC Regulation for similar effect. In particular, at section 92(3), the drafter distinguishes clearly between the validity of a “nomination” and “nomination form”.

[24]            Section ‍38(5) of the LCO provides: “The Returning Officer must determine, for each nominee whose name appears on the nomination list, whether or not the nominee is validly nominated.”.

[25]            See also section ‍42A of the LCO, sections ‍16, 19 and 92(3) of the EAC Regulation also providing that the RO is to determine whether a person is validly nominated or not, or the validity of a nomination.

[26]            Unless where the prospective applicant refuses to give information or evidence requested by the NAC, the NAC is entitled to refuse to consider the application for an advice or to give any advice.  See: section‍ 5(14) of the NAC Regulation.

[27]            See for example, the SCMP report [B3/483]; and the Wen Wei Po report [B4/705] both dated 29 ‍March 2016.

[28]            B3/485.

[29]            B3/486.

[30]            B3/488-491.

[31]            B3/531.

[32]            B4/692.

[33]           This article is exhibited as “CHT-22” to Mr ‍Chan’s 2nd‍ Affirmation.  Its original Chinese is: “陳‍浩‍天早前遞交提名表格時,堅決表明拒簽表明擁護《基本法》的確認書,但他今日一‍改口氣,表示如有足夠法理依據或會考慮簽署。被問到簽署確認書是否與港獨主張有矛盾,陳並不認同,指每人均可不同意《基本法》,但行為上依然遵守基本法,令法律制度繼續運作。他期望進入議會後,可透過法律程序修改或廢除基本法,指「《基本法》不是聖經,是可以修改。」 … 創黨時表明要推動香港獨立建國的香港民族黨,召集人陳‍浩‍天上週已報名參選新界西直選,他指暫未收到選舉主任電郵,要求他交代在簽署提名表格的聲明後,是否仍會主張港獨。他表明,假若收到查詢,或選擇不回覆電郵,因相關查詢現時並沒有法律依據指明要回覆。”.

[34]            B4/712.

[35]            See the Reasons at paragraphs ‍2 and 6, and the email of the RO to Mr‍ Chan dated 26 ‍July 2016 at paragraph ‍2.

[36]            See the Reasons at paragraph ‍9.

[37]            Leung Lai Kwok Yvonne v The Chief Secretary for Administration (HCAL‍ 31/2015, 5 ‍June 2015) at paragraph ‍57, per ‍Au‍ J; Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs [2015] ‍5 HKLRD ‍881 (CA), at paragraphs ‍45 - 48.

[38]            Equivalent to Article 19(3)(a) of the ICCPR and Article 16(3)(a) of the HKBOR.

[39]            Which provides “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

[40]            Article‍ 14 of the Convention provides “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as… religion, political or other opinion, national … origin … or other status.”

[41]            See p 6.

[42]            See pp 5 - 6 of the decision.

[43]            See pp 6 ‑ 7.

[44]            See pp 7 ‑ 8.

[45]            See pp 8 - 9.

[46]            Paragraph 29 of the Siracusa Principles is under the heading “National security” and provides: “National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.” (emphasis added)  The Siracusa Principles are issued by the United Nations, Economic and Social Council on the Limitation and Derogation Provisions in the ICCPR.

[47]            In the amended object of the HKNP (which was made after the election), it is added that its objects are “through lawful and non-violent means” to achieve succession of Hong Kong from the PRC and form a free Hong Kong Republic, and to “nullify the Basic Law”.

[48]            The Siracusa Principles are a set of principles adopted by a group of experts.  Although highly persuasive, they are not legally binding.

[49]            Wong Hin Wai, supra, at paragraph ‍29; Wong Chi Fung v Secretary for Justice [2016] 3 HKLRD 835 at paragraphs ‍40 - 41.

[50]            See Mr Chan’s Written Submissions at paragraph ‍82(iii).

[51]            See Hong Kong Television Network Ltd v Chief Executive in Council [2015]‍ 2 HKLRD ‍1035 (CFI) at 112 - 114 and 121 - 122 as to the principles.  These principles are not affected in the successful appeal: [2016] ‍2 HKLRD‍1005 (CA).

[52]            For example, Mr ‍Chan now explains that in advocating Hong Kong’s independence and the abolition of the Basic Law, all he and the HKNP intend to do to achieve these is to directly negotiate with lawful and non-violent means with the Central People’s Government (“the CPG”) seeking to convince the CPG to permit Hong Kong to become an independent republic and to eventually nullify the Basic Law.  This, Mr ‍Chan says, is consistent with the intention to “uphold” the Basic Law.

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