CHAN HO TIN v. LO YING KI ALAN AND OTHERS

CHAN HO TIN v. LO YING KI ALAN AND OTHERS

On a proper construction of the Legislative Council Ordinance and in light of the Basic Law and its interpretative context, the Declaration to uphold the Basic Law and pledge allegiance is a substantive requirement for valid nomination. A Returning Officer may consider extrinsic materials, including responses to a Confirmation Form, and invalidate a nomination where there is cogent, clear and compelling objective evidence that the candidate lacked the genuine intention required at the time of nomination; procedural fairness requires giving the candidate an opportunity to respond and regard to NAC advice as provided by statute.

Citation
[2018] HKCFI 345
Parties
Petitioner: Chan Ho Tin; 1st Respondent (returning Officer for New Territories West Geographic Constituency): Lo Ying-Ki Alan; 2nd Respondent: Chu Hoi Dick Eddie; 3rd Respondent: Tien Michael Puk Sun; 4th Respondent: Chan Han Pan; 5th Respondent: Cheng Chung Tai; 6th Respondent: Leung Che Cheung; 7th Respondent: Mak Mei Kuen Alice; 8th Respondent: Kwok Ka Ki; 9th Respondent: Wan Siu Kin Andrew; 10th Respondent: Ho Kwan Yiu
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 February 2018
Case Number
HCAL162/2016
Procedural Posture
Constitutional and Administrative Law Election Petition / Judgment (court of First Instance)
Outcome
Petition dismissed; Returning Officer's approach upheld
Legal Topics
Candidate Disqualification, Nomination Validity, Basic Law Compliance, Oath and Declaration, Returning Officer Powers, Procedural Fairness, Freedom of Expression
Source Language
EN
Constitutional Law Administrative Law Election Law Public Law Human Rights Candidate Disqualification Nomination Validity Basic Law Compliance +4 more

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Parties

Chan Ho Tin

Petitioner

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

Procedural Posture

Constitutional and Administrative Law Election Petition / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the statutory Declaration to uphold the Basic Law and pledge allegiance is a substantive requirement for nomination or merely a formal one
  2. 2 Whether the Returning Officer may have regard to extrinsic materials (including EAC Confirmation Form responses and public statements) in determining validity
  3. 3 Whether the EAC Confirmation Form is binding or mandatory for nomination

Ratio Decidendi

On a proper construction of the Legislative Council Ordinance and in light of the Basic Law and its interpretative context, the Declaration to uphold the Basic Law and pledge allegiance is a substantive requirement for valid nomination. A Returning Officer may consider extrinsic materials, including responses to a Confirmation Form, and invalidate a nomination where there is cogent, clear and compelling objective evidence that the candidate lacked the genuine intention required at the time of nomination; procedural fairness requires giving the candidate an opportunity to respond and regard to NAC advice as provided by statute.

Court Disposition

Petition dismissed; Returning Officer's approach upheld

Orders

  • Petition dismissed
  • Decision of Returning Officer to invalidate or to treat the nomination as non-compliant on the stated grounds upheld