LAM KIN MAN v. LEUNG WAI KUEN EDWARD AND OTHERS

LAM KIN MAN v. LEUNG WAI KUEN EDWARD AND OTHERS

Where a questioned candidate is found to have engaged in corrupt or illegal conduct at or in connection with the election and no relief is granted under ss30 or 31 ECICO, the court must determine that the candidate was not duly elected; concurrently, stay or adjournment of election petition proceedings pending appeal will not be granted absent a real prospect of success because the statutory scheme and public interest demand expeditious resolution.

Citation
LAM KIN MAN v. LEUNG WAI KUEN EDWARD AND OTHERS
Parties
Petitioner: Lam Kin Man; 1st Respondent: Leung Wai Kuen Edward; 2nd Respondent (returning Officer): Kwok Wong Wing-Ki Vicki; Intervener: Chief Electoral Officer
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 March 2013
Case Number
HCAL1/2012
Procedural Posture
Election Petition Under the District Councils Ordinance (cap. 547) / Trial of Preliminary Issue and Judgment; Application to Stay/adjourn Dismissed
Outcome
Summons to stay/adjourn dismissed; Petitioner succeeds; 1st Respondent determined not duly elected; by-election required; costs awarded against 1st Respondent
Legal Topics
Election Petition, Illegal Conduct Under ECICO, Disqualification From Office, Relief Under Ss30 and 31 ECICO, Stay/adjournment Pending Appeal
Source Language
EN
Electoral Law Constitutional Law Administrative Law Criminal Law Election Petition Illegal Conduct Under ECICO Disqualification From Office Relief Under Ss30 and 31 ECICO +1 more

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Parties

Lam Kin Man

Petitioner

Leung Wai Kuen Edward

1st Respondent

Kwok Wong Wing-Ki Vicki

2nd Respondent (returning Officer)

Chief Electoral Officer

Intervener

Procedural Posture

Election Petition Under the District Councils Ordinance (cap. 547) / Trial of Preliminary Issue and Judgment; Application to Stay/adjourn Dismissed

Legal Issues

  1. 1 Whether the 1st Respondent was not duly elected because he engaged in illegal conduct under s49(1)(a)(ii) DCO/ECICO
  2. 2 Whether the court must automatically declare a questioned candidate not duly elected once a ground is established or may consider all circumstances
  3. 3 Whether the hearing of the preliminary issue should be stayed/adjourned pending an appeal

Ratio Decidendi

Where a questioned candidate is found to have engaged in corrupt or illegal conduct at or in connection with the election and no relief is granted under ss30 or 31 ECICO, the court must determine that the candidate was not duly elected; concurrently, stay or adjournment of election petition proceedings pending appeal will not be granted absent a real prospect of success because the statutory scheme and public interest demand expeditious resolution.

Court Disposition

Summons to stay/adjourn dismissed; Petitioner succeeds; 1st Respondent determined not duly elected; by-election required; costs awarded against 1st Respondent

Orders

  • Summons dated 13 March 2013 seeking stay/adjournment dismissed
  • Determine that the 1st Respondent was not duly elected