RE LEGISLATIVE COUNCIL ELECTION FOR THE HONG KONG ISLAND (EAST) ELECTORAL COLLEGE CONSTITUENCY

RE LEGISLATIVE COUNCIL ELECTION FOR THE HONG KONG ISLAND (EAST) ELECTORAL COLLEGE CONSTITUENCY

Lay assessors and adjudicators do not hold 'public office' for disqualification purposes because their roles are advisory, voluntary, occasional and lack the indicia of an office of emolument under the Crown with continuance; furthermore, statutory time-bars and validation provisions prevent collateral challenges to District Board elections or votes, so Chan's nomination and election were valid.

Citation
RE LEGISLATIVE COUNCIL ELECTION FOR THE HONG KONG ISLAND (EAST) ELECTORAL COLLEGE CONSTITUENCY
Parties
Petitioner: Desmond Lee Yue-tai; 1st Respondent: Chan Ying-lun; 2nd Respondent (returning Officer): Fong Chi-wai
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 March 1989
Case Number
HCMP2226/1988
Procedural Posture
Election Petition (legislative Council) / High Court Judgment Delivered
Outcome
Petition dismissed; Chan Ying-lun duly elected
Legal Topics
Disqualification From Office, Definition of Public Office, Voter Eligibility, Statutory Interpretation, Time Bar and Validation
Source Language
EN
Electoral Law Public Law Administrative Law Constitutional Law Disqualification From Office Definition of Public Office Voter Eligibility Statutory Interpretation +1 more

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Parties

Desmond Lee Yue-tai

Petitioner

Chan Ying-lun

1st Respondent

Fong Chi-wai

2nd Respondent (returning Officer)

Procedural Posture

Election Petition (legislative Council) / High Court Judgment Delivered

Legal Issues

  1. 1 Whether a lay assessor or adjudicator constitutes a 'public office' or 'public officer' for disqualification under s21(1)(b) and s19(1)(a)
  2. 2 Whether votes cast by District Board members alleged to be disqualified (Mrs Lam and Mr Chow) could be impugned in this election petition given statutory time-bars and validation provisions
  3. 3 Whether the election should be declared void or the petitioner declared elected

Ratio Decidendi

Lay assessors and adjudicators do not hold 'public office' for disqualification purposes because their roles are advisory, voluntary, occasional and lack the indicia of an office of emolument under the Crown with continuance; furthermore, statutory time-bars and validation provisions prevent collateral challenges to District Board elections or votes, so Chan's nomination and election were valid.

Court Disposition

Petition dismissed; Chan Ying-lun duly elected

Orders

  • Court certifies that the returning officer's decision as to validity of Chan Ying-lun's nomination was correct
  • Court certifies that Chan Ying-lun was duly elected as Member of the Legislative Council for Hong Kong Island (East) on 22 September 1988