Hong Kong Case Law: Decisions & Judgments

Topic

Disqualification from office

Legal area

Court

21 May 2020

LAU SIU LAI v. KWOK WAI FUN, FRANCO (RETURNING OFFICER FOR THE KOWLOON WEST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

Citation

[2020] HKCFI 787
Court

Court of First Instance
Case number

HCAL245/2019

The Returning Officers failure to give the petitioner a proper opportunity to respond to the materials he intended to rely upon rendered his decision to invalidate the nomination a material irregularity under the Ordinance; accordingly the election result was invalid and the 2nd respondent was not duly elected, with no other candidate found duly elected.
15 Feb 2019

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. CLERK TO THE LEGISLATIVE COUNCIL

Citation

[2019] HKCA 173
Court

Court of Appeal
Case number

CACV201/2017

The NPCSC Interpretation was valid, binding and retrospective; the Interpretation correctly stated existing constitutional and statutory requirements that an oath must be read in the exact form and taken solemnly and sincerely; on objective assessment the appellant’s conduct (use of props, chanting, tearing paper and related conduct) fell outside the permissible range of solemnity and altered the oath’s form and substance; therefore the appellant declined or neglected to take the LegCo oath and is disqualified; appeal dismissed.
1 Sept 2017

SIXTUS LEUNG CHUNG HANG v. CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, SECRETARY FOR JUSTICE

Citation

SIXTUS LEUNG CHUNG HANG v. CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, SECRETARY FOR JUSTICE
Court

Court of Final Appeal
Case number

FAMV10/2017

The applications for leave to appeal were dismissed because the questions, though of public importance, were not reasonably arguable; the courts are obliged to determine whether BL104 and the Ordinance were complied with, the factual findings that the applicants declined or neglected to take the LegCo oath were unassailable, section 21 operates to disqualify in those circumstances, and the NPCSC Interpretation is binding and does not oust judicial review in this context.
1 Sept 2017

YAU WAI CHING v. CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, SECRETARY FOR JUSTICE

Citation

YAU WAI CHING v. CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, SECRETARY FOR JUSTICE
Court

Court of Final Appeal
Case number

FAMV8/2017

Leave to appeal was refused because, although the issues raised are of public importance, there is no reasonably arguable case to disturb the findings below: the courts are obliged to determine compliance with BL104; the factual findings that the applicants declined or neglected to take the oath are unassailable; section 21 operates to disqualify in those circumstances; and the NPCSC Interpretation is binding and consistent with that outcome.
14 Jul 2017

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. CLERK TO THE LEGISLATIVE COUNCIL

Citation

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. CLERK TO THE LEGISLATIVE COUNCIL
Court

Court of First Instance
Case number

HCAL224/2016

Applying an objective test, the court held that on 12 October 2016 each of the four members-elect (Nathan Law, Leung Kwok Hung, Lau Siu Lai and Yiu Chung Yim) failed to comply with the statutory and constitutional requirements (exact form, solemnity and sincere belief) for taking the LegCo Oath—by adding words, delivering the oath in a deliberately disruptive or incoherent manner, or otherwise altering the oath—thereby declining or neglecting to take the oath and becoming disqualified from assuming office with effect from 12 October 2016; the Clerk's and President's rulings accepting or allow…
14 Jul 2017

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. PRESIDENT OF THE LEGISLATIVE COUNCIL

Citation

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. PRESIDENT OF THE LEGISLATIVE COUNCIL
Court

Court of First Instance
Case number

HCAL223/2016

Applying the Interpretation, Basic Law and ODO, the court held that each of the four members-elect objectively declined or neglected to take the LegCo Oath on 12 October 2016 because their conduct failed the Exact Form and Content Requirement, the Solemnity Requirement and/or the Substantive Belief Requirement (additions of words, theatrical or incoherent delivery, and other alterations). The court quashed the administrative rulings permitting retakes, declared the four disqualified from assuming office from 12 October 2016, and granted declarations and injunctions accordingly; civil standard…
18 Oct 2016

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. YAU WAI CHING AND OTHERS

Citation

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. YAU WAI CHING AND OTHERS
Court

Court of First Instance
Case number

HCMP2819/2016

The court refused the interim injunction because, on the balance of convenience and having regard to the wider public interest, the prejudice of depriving duly elected members of representation and maintaining the President's exercise of his constitutional role outweighed the prejudice argued by applicants; status quo should be preserved pending a substantive hearing scheduled within weeks.
18 Oct 2016

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL

Citation

CHIEF EXECUTIVE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION AND ANOTHER v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL
Court

Court of First Instance
Case number

HCAL185/2016

Although the applicants demonstrated a good arguable case that the two individuals may be disqualified under s21 read with Article 104, the court refused the interim injunction because the balance of convenience and wider public interest favoured maintaining the status quo: the prejudice of depriving elected representation outweighed the prejudice of allowing the individuals to retake the oath pending an expedited substantive hearing; therefore interim relief that would disturb the status quo was not justified.
22 Mar 2013

LAM KIN MAN v. LEUNG WAI KUEN EDWARD AND OTHERS

Citation

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

Court of First Instance
Case number

HCAL1/2012

Where a questioned candidate is found to have engaged in corrupt or illegal conduct at or in connection with the election and no relief is granted under ss30 or 31 ECICO, the court must determine that the candidate was not duly elected; concurrently, stay or adjournment of election petition proceedings pending appeal will not be granted absent a real prospect of success because the statutory scheme and public interest demand expeditious resolution.
24 Nov 2009

TSE HUNG HING v. THE MEDICAL COUNCIL OF HONG KONG AND OTHERS

Citation

TSE HUNG HING v. THE MEDICAL COUNCIL OF HONG KONG AND OTHERS
Court

Court of First Instance
Case number

HCAL84/2009

Section 4(2)(b) is an indiscriminate blanket disqualification that fails the reasonableness and proportionality requirements under Article 21 HKBOR (as applied by Article 39 Basic Law); because the Council's 2 July 2009 motion was substantially influenced by the application of that invalid provision the motion is quashed and the applicant is restored as lawfully elected.