WONG KIN MAN v. CHAN KOK WAH BEN and Another

WONG KIN MAN v. CHAN KOK WAH BEN and Another

The denial to a registered elector of his right to vote, where that elector would have voted for the petitioner and thereby prevented the declared winner from having more votes, is a material irregularity that renders the declared winner not duly elected; the court's power is limited to certifying that result and reporting, and it cannot substitute another person or invoke the drawing of lots where equality was not found at the time of counting; the legal consequence is vacancy under s42(1) and administrative authorities must address filling the vacancy.

Citation
WONG KIN MAN v. CHAN KOK WAH BEN and Another
Parties
Petitioner: Wong Kin Man; 1st Respondent: Chan Kok Wah Ben; 2nd Respondent (returning Officer): Wong Hon Ho
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 January 1995
Case Number
HCMP2913/1994
Procedural Posture
Election Petition Under the Electoral Provisions Ordinance / Judgment (trial Concluded)
Outcome
1st Respondent (Chan) declared not duly elected; no other person declared duly elected in his place; certification and notification to administrative authorities; seat vacates pursuant to s42(1).
Legal Topics
Voting Rights, Election Irregularity, Election Petition Procedure, Vacancy and by Election
Source Language
EN
Electoral Law Administrative Law Local Government Law Voting Rights Election Irregularity Election Petition Procedure Vacancy and by Election

Case Brief

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Parties

Wong Kin Man

Petitioner

Chan Kok Wah Ben

1st Respondent

Wong Hon Ho

2nd Respondent (returning Officer)

Procedural Posture

Election Petition Under the Electoral Provisions Ordinance / Judgment (trial Concluded)

Legal Issues

  1. 1 Whether denial of a qualified elector's vote that would have affected the result amounts to a material irregularity
  2. 2 Whether the person declared elected was duly elected and whether another person was duly elected in his place
  3. 3 Whether the drawing of lots could remedy the defect

Ratio Decidendi

The denial to a registered elector of his right to vote, where that elector would have voted for the petitioner and thereby prevented the declared winner from having more votes, is a material irregularity that renders the declared winner not duly elected; the court's power is limited to certifying that result and reporting, and it cannot substitute another person or invoke the drawing of lots where equality was not found at the time of counting; the legal consequence is vacancy under s42(1) and administrative authorities must address filling the vacancy.

Court Disposition

1st Respondent (Chan) declared not duly elected; no other person declared duly elected in his place; certification and notification to administrative authorities; seat vacates pursuant to s42(1).

Orders

  • Certificate that the 1st Respondent was not duly elected and that no other person was duly elected in his place
  • Send a copy of this judgment to the Boundary and Election Commission in lieu of a report