(Viewpoint) Henry Litton: Deeply flawed election petition

At the end of January 2019 Chan Hoi Yan was a duly elected member of the Legislative Council (LegCo) representing the West Kowloon constituency, having won the seat against four other candidates at a by-election held at the end of November 2018.

Neither Ms Chan nor the other four candidates had done anything remotely wrong in the course of that election. And yet Anderson Chow J, by his determination of 21 May 2020, declared that Ms Chan was not duly elected.

Ms Chan’s application to the Court of Final Appeal (CFA) for leave to appeal against that determination was dismissed by the Appeal Committee.  

What impact that has on the acts performed by the legislature during the time Ms Chan was a serving member is unknown. The courts gave no thought to that, as if the proper governance of the Region was not their responsibility. The result is that the West Kowloon seat remains vacant to this day.

This, by any standards, goes totally against all common sense. It is highly damaging to the democratic process and to the rule of law. 

How did this come about?  The answer lies in the deeply flawed culture of the Judiciary.

The challenge to Ms Chan’s standing as a duly elected member of LegCo came from Lau Siu Lai who had taken no part in the election. Yet she felt free to contest the result. Ms Lau launched her petition on 25 January 2019, just within the two months’ time limit provided for in the Legislative Council Ordinance.

An election petition is special litigation. Its scope is governed by the Ordinance.

Section 67(2) says that “in relation to an election that was contested, the Court must determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected”.

Section 58A raises a statutory presumption that a person is duly elected where the Returning Officer has so declared.

Section 61 limits the scope of challenge to specified grounds.

Section 61(1)(a)(iv) says that an election “may be questioned on the ground that material irregularity occurred in relation to the election”. That was the provision on which Ms Lau founded her case.

In her petition, she cited the Returning Officer as the 1st Respondent and Ms Chan as the 2nd Respondent.

The case against the Returning Officer came about in this way.

Ms Lau had been engaged in politics for some time. From statements she had made in the past and from her conduct, there was strong indication that she supported the cause of Hong Kong independence, and that she favoured activists intent on overthrowing the established order. This was, on its face, renunciation of the Basic Law, making her ineligible to serve as a Legislative Councillor.

On 20 September 2018 she announced her intention to stand as a candidate in the by-election, claiming that she had never supported Hong Kong independence.

On 2 October she submitted her nomination form in which she declared that she would uphold the Basic Law, pledging allegiance to the HKSAR. At the same time she submitted a form confirming that she understood that Hong Kong was an inalienable part of China.

The Returning Officer, having studied all the relevant material, concluded that she “did not genuinely and truly intend to uphold the Basic Law and to pledge allegiance to the HKSAR”. He found that she did not “make a genuine declaration as required under s. 40(1)(b)(i) of the Legislative Council Ordinance” and so declared by notice dated 12 October 2018.

The issues before the Returning Officer were these: ( 1 ) Did her actions and statements over the previous two years amount to her espousing the cause of Hong Kong independence; was she in favour of overthrowing the established order; ( 2 ) however one might construe her past actions and statements, had she “repented” ( a term used in the trial court) of her previous stance at the time she made her declaration on 2 October.

These were matters for the Returning Officer alone to decide, no one else: s.42A(1). But he made an administrative mistake. He ought, in fairness, to have put these matters to Ms Lau before making up his mind. This was not done.

It was a procedural irregularity, recognised as such in common law.

The remedy was simple: an immediate application for judicial review. There was ample time for this, since the election was not due to take place until 25 November. The application would have been made under Order 53 of the Rules of the High Court, not by way of election petition. The only person concerned would have been the Returning Officer, not Ms Chan who had nothing whatever to do with Ms Lau’s nomination process.

This obvious point did not seem to have occurred to the judge who, as usual, was led by the nose by counsel. Hence the proceedings went off the rails.

Anderson Chow J gave judgment on 21 May 2020, more than 1 ½ years after Ms Lau had lodged her petition. He seemed oblivious of the confines to his own jurisdiction.

Under s. 67(2) of the Ordinance, his prime function was to determine whether Ms Chan had been duly elected.

But, in his long, rambling 26-page judgment, full of citation of cases, he never asked himself the question: How was the Returning Officer’s procedural error material to Ms Chan’s status as a duly elected Councillor?

Perhaps his conclusion says it all:

“33. Overall, I consider it to be clear that there was material irregularity in relation to the by-election by reason of the Returning Officer’s failure or refusal to give Ms Lau a proper opportunity to respond to the materials intended to be relied upon by him prior to making the decision, regardless of whether the decision was, strictly speaking, correct or incorrect”.    

Then, without explanation, the judge added:

“I also find that Ms Chan was not duly elected in the by-election”.  

In the morass of case law and counsel’s arguments, it is impossible to find a strand of logic leading to Ms Chan’s disqualification.

Ms Chan appealed, as did the Returning Officer.

If the judge’s determination is highly damaging to the rule of law, the Appeal Committee’s refusal of leave to appeal is even worse.

The Appeal Committee’s entire focus was on the Returning Officer’s procedural error. Its determination said not one word about how Ms Chan came to be dislodged from her seat. It seems to have been enough that Ms Lau’s nomination was affected by procedural irregularity; that spark was sufficient to cause the entire electoral process to be engulfed in flames, taking Ms Chan down in the process. 

This is how the Committee defined the “one real issue” in its determination of 28 September 2020:

“Para 7 ……whether the judge could decide the question of whether there was a material irregularity in relation to the by-election, without first determining whether the Returning Officer’s conclusion that Ms Lau did not genuinely and truly intend to uphold the Basic Law and pledge allegiance to the HKSAR was correct – taking into account what Ms Lau now said in the proceedings would have been her response had she been given a proper opportunity to be heard”.

It is impossible to make sense of this convoluted sentence, yet this is how the Committee defined the “one real issue” in the case.

It could in fact have been stated in a just a few words: “Was Ms Chan duly elected in terms of s.67(2) of the Legislative Council Ordinance ?”

In paras 13 and 14 of its determination the Committee referred to the importance of an intending candidate’s right to stand for election, citing Article 26 of the Basic Law and Article 21(b) of the Bill of Rights in support. It said that to deprive the candidate of an opportunity to be heard “is an extremely serious matter”; and, being so, it could not be “reasonably argued that the irregularity involved in the present case was not a material one”.

But all that Article 26 says is that permanent residents have the right to vote and to stand for election in accordance with law. Full stop. Article 21(b) of the Bill of Rights says effectively the same thing.  How could this be interpreted as justifying the judge’s conclusion?

Paragraph 14 of the determination ended with a homily: Procedural fairness “is a major theme underlying our civil as well as criminal justice system”; it stressed the importance of “the larger picture of the integrity and credibility of the electoral process”.  

This “larger picture” as seen by the Committee totally excluded Ms Chan. It never considered the impact of the irregularity on Ms Chan’s position as a sitting member of LegCo; it was enough that there was procedural unfairness in processing Ms Lau’s nomination.

Here, once again, one sees the call of some unexpressed ideology dominating every other consideration. Because the Returning Officer’s mistake was “an extremely serious matter”, logic and reason can be thrown to the wind.

This warped culture, coming from the highest court in the land, bodes ill for the rule of law in Hong Kong.