Hong Kong Case Law: Decisions & Judgments

Topic

Election petitions

Legal area

Court

1 Mar 2021

董健莉對吳定霖及另二人

Citation

[2021] HKCFI 514
Court

Court of First Instance
Case number

HCAL245/2020

Section 51 of the District Councils Ordinance must be interpreted in context and purpose to mean that only the person whose election is questioned (the successful/elected person) and the Returning Officer in respect of the election may be made respondents to an election petition; third parties alleged to have committed corrupt or illegal electoral acts are not respondents under s.51 and the petition parts against the second respondent must be struck out.
20 Dec 2019

AU NOK HIN v. TENG YU YAN ANNE (THE RETURNING OFFICER FOR THE HONG KONG ISLAND CONSTITUENCY) AND ANOTHER

Citation

[2019] HKCFA 50
Court

Court of Final Appeal
Case number

FAMV307/2019

Where an election petition establishes a statutory ground (material irregularity) under the Ordinance the court must determine that the person was not duly elected; the court has no discretion to retain the elected candidate based on political considerations or representativeness; applicants who took a neutral stance below and now rely on new, unsupported facts cannot obtain leave to appeal.
20 Dec 2019

FAN GARY KWOK WAI v. CHAN YUEN MAN, AMY (RETURNING OFFICER FOR THE NEW TERRITORIES EAST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

Citation

[2019] HKCFA 50
Court

Court of Final Appeal
Case number

FAMV324/2019

Where an election petition establishes a statutory ground such as material irregularity arising from a wrongful disqualification, the court must determine under section 67(2) that the person whose election is challenged was not duly elected; the court has no discretion to allow that person to remain in office based on political considerations or alleged representativeness; applicants who took a neutral stance below and advance new factual assertions unsupported by evidence are not permitted to raise those arguments on leave to appeal; accordingly leave to appeal was dismissed.
28 Feb 2018

郭卓堅 v. 香港島地方選區選舉主任鄧如欣

Citation

[2018] HKCFI 433
Court

Court of First Instance
Case number

HCAL130/2018

Leave to apply for judicial review was refused because, as a matter of discretion, granting leave would risk prejudicing the imminent by-election and there was an adequate alternative remedy by way of an election petition under s.62 of the Legislative Council Ordinance (cap. 542); additionally the applicant lacked the stronger interest of a candidate or elector and any challenge to the earlier decision regarding Mr Law was time‑barred and lacked merit given no obligation on the Returning Officer to take the Legislative Council Oath.
11 Jul 2013

LEUNG CHUN YING v. HO CHUN YAN ALBERT AND ANOTHER

Citation

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

Court of Final Appeal
Case number

FACV25/2012

CEEO ss32-33 must be read together: where a s33 person relies on s32(1)(a) or (b) grounds the challenge to a Chief Executive election is available only by election petition; non-s33 persons may challenge by judicial review (subject to leave) including on comparable grounds; s34(1)'s absolute seven-day time limit for lodging election petitions does not infringe the Article 35 right of access to the courts and is constitutional; accordingly Mr Ho's out-of-time election petition was barred and should be struck out, and the earlier costs order is set aside and replaced by no order as to costs.
11 Jul 2013

LAM KIN MAN v. LEUNG WAI KUEN EDWARD AND ANOTHER

Citation

LAM KIN MAN v. LEUNG WAI KUEN EDWARD AND ANOTHER
Court

Court of Final Appeal
Case number

FAMV11/2013

Leave to appeal refused because the proposed questions lacked sufficient merit: the first question was academic and the second was not reasonably arguable; Lam JA correctly refused s31 relief because the non-compliance with s27(1) was not shown to be inadvertent or for reasonable cause, the after-the-event declarations were inadequate, s30 did not apply, and given the narrow two-vote margin and public interest in prompt determination the discretion was properly exercised against the applicant.
11 Jul 2013

RE HO CHUN YAN ALBERT

Citation

RE HO CHUN YAN ALBERT
Court

Court of Final Appeal
Case number

FACV1/2013

Court held that ss 32 and 33 must be read together: s33 persons challenging on s32(1)(a) or (b) grounds can only do so by election petition; non-s33 persons may still challenge whether a declared Chief Executive can lawfully assume office by judicial review (subject to standing and leave); s34(1)'s seven-day non-extendable limit does not impair the essence of the Article 35 right and is constitutional; accordingly Mr Ho's election petition was time-barred and should be struck out; the costs order of 28 September 2012 was set aside and replaced with no order as to costs (order nisi made for ap…
11 Jul 2013

LEUNG CHUN YING v. HO CHUN YAN ALBERT AND ANOTHER

Citation

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

Court of Final Appeal
Case number

FACV24/2012

ss32 and 33 of the CEEO must be read together: where s33 persons challenge an election on s32(1)(a) or (b) grounds they must do so by election petition (as of right) and not by judicial review; non‑s33 persons may, subject to ordinary locus standi and leave requirements, bring judicial review or other proceedings to challenge whether a declared Chief Executive can lawfully assume office and may in principle rely on similar substantive grounds; the absolute seven‑day time limit in s34(1) does not infringe the core of Article 35 and is constitutionally permissible; Mr Ho's election petition was…
11 Jul 2013

SECRETARY FOR JUSTICE v. HO CHUN YAN, ALBERT AND OTHERS

Citation

SECRETARY FOR JUSTICE v. HO CHUN YAN, ALBERT AND OTHERS
Court

Court of Final Appeal
Case number

FACV27/2012

The Court held that ss32 and 33 of the CEEO mean that where persons within the s33 class challenge an election on grounds specified in s32(1)(a) or (b) they must do so by election petition and not by judicial review; non-s33 persons may nevertheless seek judicial review on such grounds subject to ordinary standing and leave requirements. The absolute seven-day limit in s34(1) does not infringe Article 35 Basic Law when read in the context and purpose of the CEEO regime and is therefore constitutional. Mr Ho's election petition was time-barred and should be struck out; the earlier costs order…
13 Nov 2012

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

Citation

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

Court of Final Appeal
Case number

FAMV26/2012

The Court held it has jurisdiction under a purposive construction of section 22(1)(c) to hear leap-frog appeals in CEEO matters; Lam JA was right to strike out the first statement as not falling within ECICO s26 (continued publication argument not reasonably arguable); reading in a discretion to extend time is the proper minimal remedial response to an unconstitutional seven-day limit and the appropriate threshold for granting extension is that the petition has a real prospect of success; applying those principles, the challenges to the election lacked reasonable arguability or real prospect…