LAU SAN CHING v. APOLLONIA LIU, the Returning Officer of Kwai Tsing District

LAU SAN CHING v. APOLLONIA LIU, the Returning Officer of Kwai Tsing District

The court found on the facts that the petitioner remained ordinarily resident in Hong Kong for the ten-year relevant period despite being absent for 7 years 5 months because the absence was involuntary imprisonment and did not destroy his habitual and settled connection to Hong Kong; the Returning Officer's rejection of the nomination was therefore incorrect and the petitioner was qualified for nomination; obiter the ten-year immediately preceding residence requirement in s.18(2) raises serious proportionality concerns under Article 21 of the Bill of Rights.

Citation
LAU SAN CHING v. APOLLONIA LIU, the Returning Officer of Kwai Tsing District
Parties
Petitioner: Lau San Ching; Respondent (returning Officer, Kwai Tsing District): Apollonia Liu
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 January 1995
Case Number
HCMP3215/1994
Procedural Posture
Election Petition / Decision on Petition (reasons Delivered)
Outcome
Returning Officer's decision quashed; petitioner held to be ordinarily resident and qualified for nomination; prior declaration that Mr Wong Chung was duly elected set aside and court declared that no person was duly elected at that election
Legal Topics
Ordinary Residence, Residency Qualification for Candidates, Bill of Rights Article 21, Proportionality and Justification of Restrictions, Interpretation and Severance (red Pencil)
Source Language
EN
Electoral Law Constitutional Law Human Rights Administrative Law Ordinary Residence Residency Qualification for Candidates Bill of Rights Article 21 Proportionality and Justification of Restrictions +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 15 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Lau San Ching

Petitioner

Apollonia Liu

Respondent (returning Officer, Kwai Tsing District)

Procedural Posture

Election Petition / Decision on Petition (reasons Delivered)

Legal Issues

  1. 1 Whether the petitioner was 'ordinarily resident' in Hong Kong for the ten years immediately preceding nomination
  2. 2 Whether a prolonged absence due to imprisonment abroad negates ordinary residence
  3. 3 Whether section 18(2) Electoral Provisions Ordinance (10-year prior residence) is inconsistent with Article 21 of the Hong Kong Bill of Rights

Ratio Decidendi

The court found on the facts that the petitioner remained ordinarily resident in Hong Kong for the ten-year relevant period despite being absent for 7 years 5 months because the absence was involuntary imprisonment and did not destroy his habitual and settled connection to Hong Kong; the Returning Officer's rejection of the nomination was therefore incorrect and the petitioner was qualified for nomination; obiter the ten-year immediately preceding residence requirement in s.18(2) raises serious proportionality concerns under Article 21 of the Bill of Rights.

Court Disposition

Returning Officer's decision quashed; petitioner held to be ordinarily resident and qualified for nomination; prior declaration that Mr Wong Chung was duly elected set aside and court declared that no person was duly elected at that election

Orders

  • Quash decision of Returning Officer rejecting Mr Lau's nomination paper
  • Declare Mr Lau qualified for nomination as candidate