Hong Kong Case Law: Decisions & Judgments

Topic

Right to stand for election

Legal area

Court

1 Dec 2023

KWOK CHEUK KIN v. CHIEF EXECUTIVE IN COUNCIL

Citation

[2023] HKCFI 3074
Court

Court of First Instance
Case number

HCAL1978/2023

The court held BL26 and BOR21 were engaged but, applying the proportionality analysis with a margin of appreciation toward the lower end, concluded the Nomination Requirement pursues legitimate aims, is rationally connected to those aims and is not manifestly without reasonable foundation or disproportionate; accordingly leave to apply was granted with an extension of time but the substantive judicial review challenge was dismissed.
28 Sept 2020

CHAN HOI YAN v. LAU SIU LAI AND ANOTHER

Citation

[2020] HKCFA 31
Court

Court of Final Appeal
Case number

FAMV92/2020

The failure of the returning officer to afford an intending candidate any opportunity to be heard before invalidating a nomination is a material irregularity that can vitiate the election result; the court need not determine the substantive question of the candidate's intent where the procedural breach alone renders the irregularity material; accordingly the applications for leave to appeal were dismissed as not reasonably arguable.
11 Jul 2017

KWOK CHEUK KIN v. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS

Citation

KWOK CHEUK KIN v. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS
Court

Court of Final Appeal
Case number

FACV12/2016

s39(2A) is constitutional: the provision pursues a legitimate aim (deterrence of resignations intended to trigger by‑elections), is rationally connected to that aim, and, given the political context and extensive consultation, the legislature is entitled to a wide margin of appreciation so that the impugned measure is not manifestly without reasonable foundation; the restriction is proportionate when balanced overall and the appeal is dismissed.
22 Jun 2016

WONG CHI FUNG v. SECRETARY FOR JUSTICE

Citation

WONG CHI FUNG v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL198/2015

Leave to apply for judicial review was refused because the applicant's challenge was not reasonably arguable: the 21 year candidature age pursues a legitimate aim, is rationally connected to ensuring maturity of officeholders, falls within a range of reasonable legislative options and attracts a broad margin of appreciation; there was no necessity to require evidence equating candidature and voting ages and remedial interpretation to 18 was inappropriate.
22 Oct 2015

KWOK CHEUK KIN v. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS

Citation

KWOK CHEUK KIN v. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS
Court

Court of Appeal
Case number

CACV57/2014

The Court of Appeal held that s39(2A) pursues legitimate aims (deterring engineered resignations and protecting the electoral system), is rationally connected to those aims and is a proportionate response; because the issue is predominantly political the legislature is entitled to a due margin of appreciation and the appeal is dismissed.
5 Mar 2014

KWOK CHEUK KIN v. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS

Citation

KWOK CHEUK KIN v. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS
Court

Court of First Instance
Case number

HCAL72/2012

Applying a due margin of appreciation to the legislature in the electoral context, the court found s 39(2A) pursues a legitimate aim (deterring resignations engineered to trigger by‑elections and protecting electoral integrity), is rationally connected to that aim, and is proportionate (time‑limited, targeted and the product of consultation and legislative debate); therefore s 39(2A) is compatible with BL26 and BOR21 and the judicial review is dismissed.
18 Oct 2013

RE DAVID PANNICK, Q.C.

Citation

RE DAVID PANNICK, Q.C.
Court

Court of First Instance
Case number

HCMP2475/2013

Admission was granted because the application concerns crystallised constitutional questions of high public importance that are bound to reach the Court of Final Appeal; the case raises complex proportionality issues where the applicant's particular expertise will materially assist the court and the admission will not exclude instructed local counsel, so the balance of public interest favours admission, including for consequential appeals.
21 Jun 2012

WONG HIN WAI v. SECRETARY FOR JUSTICE

Citation

WONG HIN WAI v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL51/2012

Section 39(1)(b) (absolute disqualification for any unserved sentence) is not a proportionate or reasonable restriction on the right to stand for election in light of legislative history, the prior three-month threshold, Article 79 Basic Law provisions and the limited legitimate aims advanced; accordingly s39(1)(b) is inconsistent with Article 26 and Article 39 Basic Law and Article 21 BoR and a declaration was granted. The constitutionality of s39(1)(d) was left undecided for future consideration.
21 Jun 2012

LEUNG KWOK HUNG v. SECRETARY FOR JUSTICE

Citation

LEUNG KWOK HUNG v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL54/2012

Applying a proportionality test the court found s39(1)(b)(i) disproportionate as applied to persons who have been sentenced to terms of imprisonment of 3 months or less and are on bail pending appeal; the provision lacks a rational connection and is not proportionate to the legitimate aims relied upon and is therefore inconsistent with Article 26 and 39 of the Basic Law and Article 21 of the BoR, and a declaration to that effect was granted.
29 Jun 1999

TSE KWAN SANG v. PAT HEUNG RURAL COMMITTEE

Citation

TSE KWAN SANG v. PAT HEUNG RURAL COMMITTEE
Court

Court of First Instance
Case number

HCAL28/1999

The Election Rules excluding non-indigenous villagers from candidacy were incompatible with Article 25(a) ICCPR as applied via Basic Law Article 39 and the procedure also offended s.35(5) of the Sex Discrimination Ordinance; accordingly the election was unlawful, declared null and void and a re-election with the applicant permitted to stand was ordered.