By-election challenge after lawmakers' appeal denied

Top News | Angel Kwan 18 Dec 2019

The prospect of a by-election may arise after democrat lawmakers Au Nok-hin and Gary Fan Kwok-wai lost their seats following the Court of Final Appeal's rejection of their appeal applications over electoral petitions.

The two were declared "not duly elected" yesterday after Demosisto's Agnes Chow Ting and localist Ventus Lau Wing-hong were ruled to have been wrongly disqualified from running in the 2018 by-election on Hong Kong Island and New Territories East, respectively.

Three judges rejected the applications after a short break. Au and Fan were unseated immediately and must clear their offices by January 6.

After the ruling, the Constitutional and Mainland Affairs Bureau turned to the Electoral Affairs Commission to decide if a by-election for the two seats was required.

The commission said it will weigh whether it is practical to hold a by-election.

According to the Legislative Council Ordinance, Legco must declare a vacancy within 21 days, with the EAC required to arrange a by-election following the declaration.

It would not be held within the four months before the end of the council's current term. In this case, the EAC should hold the by-election before June 2020 - just three months before the full Legco election set for September 2020.

An EAC spokesman said they are concerned whether it is feasible to have one before the Legco election, citing manpower and resources issues.

"Unprecedented challenges were faced in the district council election this year," the EAC told The Standard.

Executive councillor Ronny Tong Ka-wah said there might not be enough time for a by-election and it would not be an effective use of public funds if the ones who get elected are only able to attend one or two meetings.

In the appeal hearing yesterday, lawyer Carter Chim Ting-cheong told the court Au served as Chow's "plan B" after she was disqualified by the returning officer in 2018. He said vacating Au's seat would be neglecting the will of voters.

Chow also confirmed in writing that Au had been her "plan B."

But Chief Justice Geoffrey Ma Tao-li questioned whether Au and Chow were "working together," as Chow filed her petition to seek a ruling that Au was not duly elected.

Au afterward said: "The consequences of the mistakes made by the government should not be borne by elected persons or candidates."

Fan said he was trying to uphold justice through the appeal "as under the current mechanism, the only 'compensation' of a returning officer disqualifying any candidate for their political stance is to announce the ineffectiveness of such an election."

Lau said he welcomed the decision of the Court of Final Appeal but also said it is a pity that two pro-democracy lawmakers lost their seats.

Au served a little more than a year as a lawmaker, while Fan lost his seat twice in three years.

In the 2018 by-election, Chow and Lau were disqualified by the returning officer over their political views of self-determination and independence, respectively, with Au and Fan then subsequently elected.

However, the High Court overturned the disqualifications in September, saying Chow and Lau were not given a fair opportunity to respond.

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