HO CHUN YAN, ALBERT v. LEUNG CHUN YING AND ANOTHER

HO CHUN YAN, ALBERT v. LEUNG CHUN YING AND ANOTHER

The court declared s34(1) CEEO unconstitutional and read in a remedial discretion to extend time subject to s39(2)‑style conditions; applying those criteria the petitioner satisfied the 'best endeavours' limb but failed the 'interest of justice' limb because his sole remaining challenge (the second statement) lacked a real prospect of success, so extension was refused and the petition dismissed.

Citation
HO CHUN YAN, ALBERT v. LEUNG CHUN YING AND ANOTHER
Parties
Petitioner: Ho Chun Yan, Albert; 1st Respondent: Leung Chun Ying; 2nd Respondent (returning Officer): Jeremy Poon
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 October 2012
Case Number
HCAL85/2012
Procedural Posture
Election Petition (chief Executive Election) / Judgment on Applications for Extension of Time, Amendment and Striking Out; Declarations and Dismissal of Petition
Outcome
Declarations granted that s34(1) CEEO is unconstitutional and should be read to permit a judicial discretion to extend time; application for extension refused; election petition dismissed.
Legal Topics
Extension of Time, Election Petition, Remedial Interpretation, Publication and Meaning of Statements (section 26 Ecico), Time Limits (section 34 Ceeo)
Source Language
EN
Constitutional Law Administrative Law Election Law Extension of Time Election Petition Remedial Interpretation Publication and Meaning of Statements (section 26 Ecico) Time Limits (section 34 Ceeo)

Case Brief

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Parties

Ho Chun Yan, Albert

Petitioner

Leung Chun Ying

1st Respondent

Jeremy Poon

2nd Respondent (returning Officer)

Procedural Posture

Election Petition (chief Executive Election) / Judgment on Applications for Extension of Time, Amendment and Striking Out; Declarations and Dismissal of Petition

Legal Issues

  1. 1 Whether section 34(1) CEEO is unconstitutional
  2. 2 Whether a remedial interpretation should read in a judicial discretion to extend time
  3. 3 Whether petitioner satisfied the 'best endeavours' limb and the 'interest of justice' limb (s39(2) criteria)

Ratio Decidendi

The court declared s34(1) CEEO unconstitutional and read in a remedial discretion to extend time subject to s39(2)‑style conditions; applying those criteria the petitioner satisfied the 'best endeavours' limb but failed the 'interest of justice' limb because his sole remaining challenge (the second statement) lacked a real prospect of success, so extension was refused and the petition dismissed.

Court Disposition

Declarations granted that s34(1) CEEO is unconstitutional and should be read to permit a judicial discretion to extend time; application for extension refused; election petition dismissed.

Orders

  • Declaration that the time limit in s34(1) Chief Executive Election Ordinance (Cap 569) is unconstitutional
  • Remedial interpretation reading in a judicial power to extend the time for lodging an election petition subject to conditions mutatis mutandis of s39(2) CEEO