LAU SIU LAI v. KWOK WAI FUN, FRANCO (RETURNING OFFICER FOR THE KOWLOON WEST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

LAU SIU LAI v. KWOK WAI FUN, FRANCO (RETURNING OFFICER FOR THE KOWLOON WEST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

The Returning Officers failure to give the petitioner a proper opportunity to respond to the materials he intended to rely upon rendered his decision to invalidate the nomination a material irregularity under the Ordinance; accordingly the election result was invalid and the 2nd respondent was not duly elected, with no other candidate found duly elected.

Citation
[2020] HKCFI 787
Parties
Petitioner: Lau Siu-lai; 1st Respondent: Kwok Wai-fun, Franco (Returning Officer); 2nd Respondent: Chan Hoi Yan
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 May 2020
Case Number
HCAL245/2019
Procedural Posture
Election Petition / Judgment (court of First Instance)
Outcome
Election petition allowed; 2nd Respondent not duly elected; no other candidate found duly elected.
Legal Topics
Nomination Validity, Natural Justice / Right to Be Heard, Disqualification From Office, Material Irregularity in Election, Interpretation of Basic Law Declaration Requirement
Source Language
EN
Constitutional Law Administrative Law Electoral Law Human Rights Law Nomination Validity Natural Justice / Right to Be Heard Disqualification From Office Material Irregularity in Election +1 more

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Parties

Lau Siu-lai

Petitioner

Kwok Wai-fun, Franco (Returning Officer)

1st Respondent

Chan Hoi Yan

2nd Respondent

Procedural Posture

Election Petition / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the Returning Officer lawfully invalidated the petitioners nomination by going behind the signed declaration
  2. 2 Whether failing to give the petitioner an opportunity to respond to materials relied upon amounted to a material irregularity under the Legislative Council Ordinance
  3. 3 Whether the 2nd respondent was duly elected given the procedural irregularity

Ratio Decidendi

The Returning Officers failure to give the petitioner a proper opportunity to respond to the materials he intended to rely upon rendered his decision to invalidate the nomination a material irregularity under the Ordinance; accordingly the election result was invalid and the 2nd respondent was not duly elected, with no other candidate found duly elected.

Court Disposition

Election petition allowed; 2nd Respondent not duly elected; no other candidate found duly elected.

Orders

  • 1st and 2nd Respondents to pay the costs of the Petitioner, including reserved costs if any, to be taxed if not agreed; certificate for two counsel.