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

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

The court held it has jurisdiction to entertain an election petition after the Chief Executive assumes office; the 7-working-day lodging limit in s34 engages the constitutional right of access to court and fails the proportionality requirement because there is internal inconsistency with s39 which allows a residual discretion; accordingly s34 must be read to include a residual judicial discretion to extend time analogous to s39(2); the pleaded ECICO s26 claim based on the May 2011 statement was not arguable as continued publication by the candidate could not be established, but the March 2012 debate statement was not plainly incapable of bearing the alleged meanings and therefore the...

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): The Hon Mr Justice Poon Shiu-Chor, Jeremy
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 September 2012
Case Number
HCAL85/2012
Procedural Posture
Election Petition (chief Executive) With Constitutional Challenge / Interlocutory Motion to Strike Out/stay/dismiss; Judgment on Motion and Directions to Permit Extension Application
Outcome
Motion to strike out/stay/dismiss refused in material respects; remedial reading-in ordered
Legal Topics
Time Bar, Jurisdiction After Assumption of Office, Proportionality, Remedial Interpretation (reading In), Access to Courts, Illegal Conduct Under ECICO S26, Freedom of Expression, Abuse of Process
Source Language
EN
Constitutional Law Administrative Law Election Law Electoral Offences Judicial Review Time Bar Jurisdiction After Assumption of Office Proportionality +5 more

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Parties

Ho Chun Yan, Albert

Petitioner

Leung Chun Ying

1st Respondent

The Hon Mr Justice Poon Shiu-Chor, Jeremy

2nd Respondent (returning Officer)

Procedural Posture

Election Petition (chief Executive) With Constitutional Challenge / Interlocutory Motion to Strike Out/stay/dismiss; Judgment on Motion and Directions to Permit Extension Application

Legal Issues

  1. 1 Whether court retains jurisdiction to hear election petition after Chief Executive has assumed office
  2. 2 Whether the 7-working-day time limit for lodging an election petition (CEEO s34) engages the constitutional right of access to court and is proportionate
  3. 3 Whether a residual judicial discretion to extend time can be read into s34 if s34 is unconstitutional

Ratio Decidendi

The court held it has jurisdiction to entertain an election petition after the Chief Executive assumes office; the 7-working-day lodging limit in s34 engages the constitutional right of access to court and fails the proportionality requirement because there is internal inconsistency with s39 which allows a residual discretion; accordingly s34 must be read to include a residual judicial discretion to extend time analogous to s39(2); the pleaded ECICO s26 claim based on the May 2011 statement was not arguable as continued publication by the candidate could not be established, but the March 2012 debate statement was not plainly incapable of bearing the alleged meanings and therefore the...

Court Disposition

Motion to strike out/stay/dismiss refused in material respects; remedial reading-in ordered

Orders

  • Refused to strike out the petition on grounds of jurisdiction, time-bar and abuse of process
  • Read into CEEO s34 a residual judicial discretion to extend time analogous to s39(2)