Litton hits out at Rebecca Chan unseating

The court decision to unseat Rebecca Chan Hoi-yan from the Legislative Council "makes no sense", said retired Court of Final Appeal judge Henry Litton as he hit out at the election petition system.

Chan was declared “unduly elected” by the High Court last year as former lawmaker Lau Siu-lai won her election petition over being barred from running in a by-election in 2018.

Justice Anderson Chow Ka-ming said it was unfair for Lau to be denied the chance to explain her political views before she was banned. Chan’s appeal against the decision was also dismissed by the Court of Final Appeal.

But Litton said the decision to unseat Chan did not make sense because “neither Ms Chan nor the other four candidates had done anything remotely wrong in the course of that election.”

Litton also mentioned the impact of the court decision on the acts performed by the legislature during the time Chan was serving as a member was also unknown and the West Kowloon seat remains vacant.

“The courts gave no thought to that, as if the proper governance of the region was not their responsibility,” Litton said.

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

Although Litton agreed that returning officer Franco Kwok Wai-fan made a mistake when deciding whether Lau could participate in the by-election, he said Lau’s application to challenge Kwok’s decision should be filed as soon as she was banned in October 2018.

“[Kwok] 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,” Litton said.

“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,” he added. “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.”

He also slammed the appeal committee from the city’s top court which dismissed Chan’s appeal, saying the committee only focused on Kwok’s mistake and did not explain why Chan was 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,” Litton said, adding all logic and reason were “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.”

In 2019, two pro-democracy lawmakers -- Au Nok-hin and Gary Fan Kwok-wai -- were also unseated due to similar reasons after the High Court ruled that two other pro-democracy candidates Agnes Chow Ting and localist Ventus Lau Wing-hong were wrongly banned from running in 2018 by-elections.

Full text of “Deeply flawed election petition”: https://www.thestandard.com.hk/breaking-news/section/4/166938/(Viewpoint)-Henry-Litton:-Deeply-flawed-election-petition