董健莉 對 吳定霖及另二人

董健莉 對 吳定霖及另二人

Section 51 of the District Councils Ordinance must be interpreted in context and purpose to mean that only the person whose election is questioned (the successful/elected person) and the Returning Officer in respect of the election may be made respondents to an election petition; third parties alleged to have committed corrupt or illegal electoral acts are not respondents under s.51 and the petition parts against the second respondent must be struck out.

Citation
[2021] HKCFI 514
Parties
Petitioner (candidate): 董健莉; First Respondent (successful Candidate): 吳定霖; Second Respondent (chairman of Owners' Corporation, Applicant to Strike Out): 鄧耀榮; Third Respondent (returning Officer): 陳婉雯
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 March 2021
Case Number
HCAL245/2020
Procedural Posture
Election Petition Under District Councils Ordinance (cap.547) / Application to Strike Out Parts of Petition Against Second Respondent; Interlocutory Judgment on Scope of S.51
Outcome
Application granted: petition struck out as against the second respondent; parts of petition concerning second respondent dismissed
Legal Topics
Election Petitions, Statutory Interpretation, Strike Out/removal of Respondent, Electoral Fraud/prosecution
Source Language
CT
Electoral Law Administrative Law Civil Procedure Constitutional Law Election Petitions Statutory Interpretation Strike Out/removal of Respondent Electoral Fraud/prosecution

Case Brief

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Parties

董健莉

Petitioner (candidate)

吳定霖

First Respondent (successful Candidate)

鄧耀榮

Second Respondent (chairman of Owners' Corporation, Applicant to Strike Out)

陳婉雯

Third Respondent (returning Officer)

Procedural Posture

Election Petition Under District Councils Ordinance (cap.547) / Application to Strike Out Parts of Petition Against Second Respondent; Interlocutory Judgment on Scope of S.51

Legal Issues

  1. 1 Whether section 51 of the District Councils Ordinance (Cap.547) permits persons other than the successful candidate and the Returning Officer to be made respondents to an election petition
  2. 2 Whether a third party alleged to have committed corrupt or illegal electoral acts can be made a respondent to an election petition or must be dealt with under the Elections (Corrupt and Illegal Conduct) Ordinance (Cap.554)
  3. 3 Meaning and effect of the word 'may' in s.51 in the context of the statutory scheme

Ratio Decidendi

Section 51 of the District Councils Ordinance must be interpreted in context and purpose to mean that only the person whose election is questioned (the successful/elected person) and the Returning Officer in respect of the election may be made respondents to an election petition; third parties alleged to have committed corrupt or illegal electoral acts are not respondents under s.51 and the petition parts against the second respondent must be struck out.

Court Disposition

Application granted: petition struck out as against the second respondent; parts of petition concerning second respondent dismissed

Orders

  • Struck out the parts of the election petition and proceedings against the second respondent
  • Costs of the strike out application and related costs to be paid to the second respondent and to be assessed on a summary basis