CHOW TING v. TENG YU YAN ANNE (THE RETURNING OFFICER FOR THE HONG KONG ISLAND CONSTITUENCY) AND ANOTHER

CHOW TING v. TENG YU YAN ANNE (THE RETURNING OFFICER FOR THE HONG KONG ISLAND CONSTITUENCY) AND ANOTHER

The court held that s40(1)(b)(i) requires an objective, substantive intention to uphold the Basic Law and pledge allegiance; the Returning Officer was required to give the petitioner a reasonable opportunity to respond to adverse materials before invalidating the nomination; the failure to afford that opportunity was a material irregularity; accordingly the Election Petition was allowed and the declared result set aside (Au Nok Hin was not duly elected).

Citation
[2019] HKCFI 2135
Parties
Petitioner: Chow Ting; 1st Respondent: Teng Yu-Yan Anne (The Returning Officer for the Hong Kong Island Constituency); 2nd Respondent: Au Nok-hin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 September 2019
Case Number
HCAL804/2018
Procedural Posture
Election Petition / Judgment (court of First Instance)
Outcome
Election Petition allowed; Au Nok Hin not duly elected; no other candidate declared elected in his place.
Legal Topics
Validity of Nomination, Declaration to Uphold Basic Law, Natural Justice, Returning Officer Powers, NPCSC Interpretation, Election Irregularity
Source Language
EN
Constitutional Law Administrative Law Electoral Law Public Law Validity of Nomination Declaration to Uphold Basic Law Natural Justice Returning Officer Powers +2 more

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Parties

Chow Ting

Petitioner

Teng Yu-Yan Anne (The Returning Officer for the Hong Kong Island Constituency)

1st Respondent

Au Nok-hin

2nd Respondent

Procedural Posture

Election Petition / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether signing the statutory declaration is a formal or substantive requirement under s40(1)(b)(i) of the Legislative Council Ordinance
  2. 2 Whether the Returning Officer must give a nominee a reasonable opportunity to respond to materials relied upon in invalidating a nomination
  3. 3 Whether failure to afford a hearing amounted to a material irregularity in the by-election

Ratio Decidendi

The court held that s40(1)(b)(i) requires an objective, substantive intention to uphold the Basic Law and pledge allegiance; the Returning Officer was required to give the petitioner a reasonable opportunity to respond to adverse materials before invalidating the nomination; the failure to afford that opportunity was a material irregularity; accordingly the Election Petition was allowed and the declared result set aside (Au Nok Hin was not duly elected).

Court Disposition

Election Petition allowed; Au Nok Hin not duly elected; no other candidate declared elected in his place.

Orders

  • Declare that Au Nok Hin was not duly elected as member for the Hong Kong Island Geographical Constituency
  • Declare that neither the Petitioner nor any of the other candidates was duly elected in his place