LAU WING HONG v. CHAN YUEN MAN, AMY (RETURNING OFFICER FOR THE NEW TERRITORIES EAST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

LAU WING HONG v. CHAN YUEN MAN, AMY (RETURNING OFFICER FOR THE NEW TERRITORIES EAST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

The returning officer's failure to give the petitioner a reasonable opportunity to respond to the materials she intended to rely upon constituted a material irregularity in the election process; the signed declaration is only prima facie evidence and may be displaced, but procedural fairness required an opportunity to be heard, and accordingly the election result was set aside.

Citation
[2019] HKCFI 2287
Parties
Petitioner: Lau Wing Hong; 1st Respondent (returning Officer): Chan Yuen Man, Amy; 2nd Respondent (declared Elected): Fan Gary Kwok Wai
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 September 2019
Case Number
HCAL844/2018
Procedural Posture
Election Petition (challenge to Validity of Nomination) / Judgment on Petition (decision)
Outcome
Election petition allowed; declared that Fan Gary Kwok Wai was not duly elected and that no candidate in the by-election was duly elected.
Legal Topics
Candidate Nomination, Natural Justice, Validity of Nomination, Basic Law Allegiance Requirement, Procedural Fairness, Election Irregularity
Source Language
EN
Constitutional Law Administrative Law Electoral Law Judicial Review Candidate Nomination Natural Justice Validity of Nomination Basic Law Allegiance Requirement +2 more

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Parties

Lau Wing Hong

Petitioner

Chan Yuen Man, Amy

1st Respondent (returning Officer)

Fan Gary Kwok Wai

2nd Respondent (declared Elected)

Procedural Posture

Election Petition (challenge to Validity of Nomination) / Judgment on Petition (decision)

Legal Issues

  1. 1 Whether a signed declaration that a candidate will uphold the Basic Law and pledge allegiance is conclusive or only prima facie evidence of intention
  2. 2 Whether a returning officer is entitled to go behind the signed declaration to assess a candidate's genuine intention
  3. 3 Whether failure to give a candidate a prior opportunity to respond to materials relied upon by the returning officer is a material irregularity

Ratio Decidendi

The returning officer's failure to give the petitioner a reasonable opportunity to respond to the materials she intended to rely upon constituted a material irregularity in the election process; the signed declaration is only prima facie evidence and may be displaced, but procedural fairness required an opportunity to be heard, and accordingly the election result was set aside.

Court Disposition

Election petition allowed; declared that Fan Gary Kwok Wai was not duly elected and that no candidate in the by-election was duly elected.

Orders

  • Declare that Fan Gary Kwok Wai was not duly elected as a member for the New Territories East Geographical Constituency
  • Declare that neither the Petitioner nor any of the candidates standing in the by-election was duly elected in his place