LAU WING HONG v. CHAN YUEN MAN, AMY (RETURNING OFFICER FOR THE NEW TERRITORIES EAST GEOGRAPHICAL CONSTITUENCY) AND ANOTHER

HCAL 844/2018

[2019] HKCFI 2287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 844 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  In this Election Petition, the Petitioner seeks to challenge the decision of 1^st Respondent on 31 January 2018 that his nomination as a candidate in the Legislative Council by-election for the New Territories East Geographical Constituency to be held on 11 March 2018 (“the By-election”) was invalid.

BASIC FACTS

2.  The Petitioner (“Mr Lau”) was born in Hong Kong on 8 October 1993, and has been ordinarily resident in Hong Kong for the whole of his life.  He is a Chinese citizen and a permanent resident of Hong Kong.  In or about December 2017, he decided to run in the By-election.  The 1^st Respondent (“the Returning Officer”) was the returning officer for the By-election.

3.  On 25 January 2018, Mr Lau submitted a duly completed and signed nomination form (“the Nomination Form”) dated 24 January 2018 to the Returning Officer in order to run as a candidate in the By-election.  The Nomination Form contained a declaration (“the Declaration”) by Mr Lau as follows –

“I declare that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

4.  In the Nomination Form, Mr Lau stated, in relation to “Political Affiliation”, that he was an “Independent Localist” (獨立本土派).  Accompanying the Nomination Form was a promissory oath (“the Promissory Oath”) signed by Mr Lau on 25 January 2018, in which he stated that –

“if elected as a Member of the Legislative Council in the above by-election, I will not do anything during my term of office that would result in any one of the conditions specified in section 40(1)(b)(iii) of the Legislative Council Ordinance (Cap 542).”

5.  Mr Lau also submitted a duly signed confirmation form (“the Confirmation Form”) dated 24 January 2018 to the Returning Officer, in which he declared and confirmed, inter alia, the following –

“1. In respect of the above by-election, I have, in accordance with section 40(1)(b)(i) of the Legislative Council Ordinance (Cap. 542), already declared in the nomination form that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.

2. I understand that to uphold the Basic Law means to uphold the Basic Law including the following provisions:

Article 1

The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China.

Article 12

The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government.

Article 159(4)

No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong.

3. I understand that in accordance with section 103 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D), a person who, in an election related document, makes a statement which that person knows to be false in a material particular or recklessly makes a statement which is incorrect in a material particular or knowingly omits a material particular from an election related document commits an offence. I also understand that this confirmation form will be made available for public inspection together with the nomination form.

4. I hereby confirm that I understand the content of paragraph 2 above and, in particular, the reference to Article 1, Article 12 and Article 159(4) of the Basic Law, and, on that basis, I have declared in the nomination form that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.”

6.  By a “Notice of Decision as to Validity of Nomination” dated 31 January 2018 (“the Decision”), the Returning Officer informed Mr Lau that his nomination as a candidate in the By-election had been declared by her (the Returning Officer) to be invalid, on the ground that she was not satisfied that Mr Lau genuinely and truly intended to uphold the Basic Law and pledge allegiance to the HKSAR and that he had duly complied with Section 40(1)(b)(i) of the Legislative Council Ordinance, Cap 542 (“the Ordinance”).  Essentially, the Returning Officer came to that conclusion by reason of Mr Lau’s manifest and sustained stance in support of the independence of Hong Kong up to at least November 2016, notwithstanding Mr Lau’s purported public renunciation of that stance since December 2017 in order to qualify as a candidate to run in the By-election.  On the other hand, Mr Lau’s position was that he had a genuine change of heart after he came to realise, as a result of having worked with a Shatin District Councillor since 1 January 2016 and listening and interacting with fellow citizens, that most people in Hong Kong were against Hong Kong independence.  Attached to the Notice of Decision was a document titled “Reasons for Ruling LAU Wing-hong’s Nomination as Invalid” (“Reasons for Decision”), a copy of which is attached to this judgment as “Annex I”.

7.  As a result of the Decision, Mr Lau was precluded from standing as a candidate in the By-election.  The By-election took place on 11 March 2018, with 6 candidates contesting in the By-election. The voter turnout rate was 41.69%, with 412,325 valid votes cast.  On 12 March 2018, the Returning Office published a “Notice of Result of Election” in the Gazette declaring the 2^nd Respondent (Fan Gary Kwok Wai) to be elected for the New Territories East Geographical Constituency.

8.  On 15 May 2018, Mr Lau commenced the proceedings herein to challenge the Decision.  In the Election Petition, Mr Lau sought the court’s determination on, inter alia, whether Mr Fan Gary Kwok Wai declared by the Returning Officer for the New Territories East Geographical Constituency to be elected in the Notice of Result of Election was duly elected.

9.  On behalf of Mr Lau, Mr Jin Pao, SC raises three principal arguments in support of the Election Petition:

(1)  The requirement under Section 40(1)(b)(i) of the Ordinance was satisfied by Mr Lau by signing the required declaration in the Nomination Form that he would uphold the Basic Law and pledge allegiance to the HKSAR.  It was wrong for the Returning Officer to go behind the signed declaration and examine whether Mr Lau, as a matter of fact, held such an intention.

(2)  Mr Lau was unfairly deprived of the opportunity to make representations in response to the alleged concerns of the Returning Officer as to his intention to uphold the Basic Law and pledge allegiance to the HKSAR.  This was in clear breach of the principles of fairness, which is particularly flagrant since Mr Lau was deprived of his right to stand for election.  The Decision was one-sided and based on selective and incomplete information.

(3)  On the basis of the materials before her, the Returning Officer was wrong to conclude that the Petitioner did not have the requisite intention to uphold the Basic Law and pledge allegiance to the HKSAR.  There were no cogent, clear and compelling materials which objectively and plainly showed that Mr Lau did not have that intention at the time of his nomination.  The materials which she relied on in her reasons did not show that.  The Returning Officer did not attribute the proper weight to the signed declaration that it deserved.

By reason of the aforesaid, Mr Pao invites the court to conclude that Mr Lau was wrongly determined by the Returning Officer to be invalidly nominated, and that a material irregularity occurred in relation to the By-election under Section 61(1)(a)(iv) of the Ordinance[1].

DISCUSSION

10.  Shortly before the hearing of the present Election Petition on 4 September 2019, this court handed down its decision in another election petition, namely, Chow Ting v Teng Yu-Yan Anne (the Returning Officer for the Hong Kong Island Constituency) and Another[2019] HKCFI 2135, on 2 September 2019 (“the Chow Ting Decision”).  The issues determined by the court there are materially the same as those raised for determination in this Election Petition.  In that case, as here, the candidate was not given an opportunity to respond to the materials intended to be relied upon by the returning officer for the decision that the candidate’s nomination was invalid.  The court held, inter alia, that:

(1)  The requirement that a person, to be validly nominated as a candidate in a Legislative Council election for a geographical constituency, should genuinely and truly intend to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region was a “substantive”, and not a mere “formal”, requirement.  The mere fact that the candidate had signed a declaration in his/her nomination form to that effect was not conclusive of the matter.

(2)  The returning officer ought to have given a candidate a reasonable opportunity to respond to the materials intended to be relied upon by the returning officer for a decision that the candidate’s nomination was invalid prior to making the decision, and such failure amounted to a material irregularity in the election.

(3)  Having regard to the importance of the principle of natural justice and the circumstances of that case (including the absence of any urgency which made it impracticable for the returning officer to afford the candidate an opportunity to respond to the relevant materials and allegations, as well as the nature of the decision in question, being one which deprived a Hong Kong permanent resident of the right to stand in a Legislative Council election), the court did not consider it appropriate to exercise its discretion to refuse to grant relief to the petitioning candidate even though the returning officer might well have reached the same conclusion had she given the candidate an opportunity to make representations.

11.  Mr Pao (for Mr Lau) and Mr Johnny Mok, SC (for the Returning Officer) have drawn my attention to various features in the present case which were absent in Chow Ting’s case.  In particular:

(1)  Mr Pao contends that the deprivation of Mr Lau’s right to stand in the By-election is more serious than that in Chow Ting’s case because the Returning Officer in the present case did not even consider whether Mr Lau should be given a chance to make representations, whereas in Chow Ting’s case the returning officer did consider that question but eventually decided against it.  I do not consider this difference to be significant in the present context.  The focus of the inquiry is whether there was a material irregularity in the election.  The material irregularity was constituted by the failure to give the candidate an opportunity to respond to the materials intended to be relied upon by the returning officer for the decision that the candidate’s nomination was invalid.  Whether the returning officer did, subjectively, consider the question of whether to give the candidate an opportunity to make representations prior to making the decision does not, it seems to me, affect the nature or seriousness of the “irregularity” in question.  What is important, I consider, is whether there was/were, in fact, good ground(s) for denying the candidate of such opportunity.

(2)  Mr Pao also argues that the present case is a more serious one because the Returning Officer formed the view that Mr Lau was disingenuous when he publicly declared that he no longer supported the independence of Hong Kong, and she ought to have given Mr Lau an opportunity to answer such serious allegation.  While I accept that the Returning Officer ought to have been given Mr Lau an opportunity to answer this serious allegation prior making the Decision, I do not consider that this matter adds anything of significance to Mr Lau’s case here.

(3)  On the other hand, Mr Mok points out that in the present case (but not in Chow Ting’s case), there is confirmation by the Returning Officer that she would have come to same conclusion even if she had given Mr Lau an opportunity to make representations and he had responded by relying on the same materials and explanations being put forwards in these proceedings.  As mentioned in paragraph 39 of the Chow Ting Decision, I am of the view that the principle of natural justice requires that the person affected by an adverse decision ought generally to be given an opportunity to make representations prior to the decision being made against him.  Retrospective consideration of the representations by the decision-maker is generally unsatisfactory, and should not be accepted by the court as being sufficient save in exceptional circumstance, for the reasons mentioned in paragraph 40 of the Chow Ting Decision.

12.  In short, I see no reason to differ from the conclusions that I reached in Chow Ting’s case.  In respect of the three principal arguments raised by Mr Pao mentioned in paragraph 9 above, my views are as follows:

(1)  The requirement under Section 40(1)(b)(i) of the Ordinance was not satisfied by Mr Lau merely by signing the required declaration in the Nomination Form that he would uphold the Basic Law and pledge allegiance to the HKSAR.  The Declaration was only prima facie evidence of Mr Lau’s intention to uphold the Basic Law and pledge allegiance to the HKSAR.  The Returning Officer was entitled, as a matter of law, to to go behind the signed Declaration and examine whether Mr Lau genuinely and truly held such an intention.

(2)  The Returning Officer ought to have given Mr Lau an opportunity to respond to the materials intended to be relied upon by her for the Decision that the Nomination was invalid prior to making the Decision, and her failure to do so amounted to a material irregularity in the By-election.  The court should not exercise its discretion to refuse to grant relief in the present case.

(3)  Having reached these conclusions, it is not necessary for the court to determine whether the Returning Officer was right or wrong to conclude that Mr Lau did not have the requisite intention to uphold the Basic Law and pledge allegiance to the HKSAR.  This is a hypothetical question which does not arise for determination.  As for the suggested requirement of “cogent, clear and compelling materials” before the prima facie evidence of the Declaration may be displaced, I repeat my observations in paragraph 24 of the Chow Ting Decision.

MR LAU’S SUMMONS FOR LEAVE TO ADDUCE FURTHER EVIDENCE

13.  On 30 July 2019, Mr Lau issued a summons seeking leave to file and serve the Affidavit of Chan Chun Tat, the purpose of which was to adduce evidence to show that there was an instance in relation to the 2018 Legislative Council By-election for the Kowloon West Geographical Constituency where the returning officer did ask Mr Yiu Chung-yim about certain statements that he had made and his intention to uphold the Basic Law, and eventually ruled that Mr Yiu Chung-yim’s nomination was valid.  According to Mr Pao, such evidence shows “the value of the right to be heard, how it is practicable for inquiries to be asked before a decision is made, and the completely arbitrary nature of the failure to make inquiries in the present case”.

14.  There are, I understand, cases where the returning officer made relevant inquiries with a candidate prior to ruling on the validity of the candidate’s nomination, and there are cases where no such inquiries were made.  What happened in one case has, I consider, no relevance to the question of whether, as a matter of law, the Returning Officer ought to make relevant inquiries with Mr Lau prior to ruling on the validity of the Nomination.  The proposed evidence is, in my view, irrelevant.  Accordingly, Mr Lau’s summons dated 30 July 2019 is dismissed with costs to the Returning Officer.

DISPOSITION

15.  For the foregoing reasons, I allow the Election Petition, and declare that (i) Mr Fan Gary Kwok Wai was not duly elected as a member of the Legislative Council for the New Territories East Geographical Constituency as stated in the Notice of Result of Election published in the Gazette on 12 March 2018, and (ii) neither the Petitioner nor any of the candidates standing in the By-election was duly elected in his place.

16.  The parties are agreed that the costs order made in Chow Ting’s case would be appropriate to be made in the event that I should come to the same conclusions based on the same reasons, which I do.  Accordingly, I make an order that the 1^st Respondent shall pay two-third of the costs of the Petitioner in these proceedings (save those mentioned in paragraph 14 above and subject to previous costs order(s) made by the court) to be taxed if not agreed, with certificate for two counsel.  The Petitioner's own costs are to be taxed in accordance with Legal Aid Regulations.

HCAL 844/2018

[2018] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 844 OF 2018

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DECISION

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INTRODUCTION

1.  I have before me three summonses: -

(1)   the Petitioner’s ex parte summons dated 15 May 2018 (“the Ex Parte Directions Summons”) seeking an order that his obligation to give security as required by Section 66 of the Legislative Council Ordinance, Cap 542 (“the Ordinance”), be waived;

(2)   the Petitioner’s inter partes summons dated 21 May 2018 (“the Inter Partes Directions Summons”) seeking (i) leave to withdraw the Ex Parte Directions Summons; and (ii) an order that his obligation to give security as required by Section 66 of the Ordinance be dispensed with; and

(3)   the Petitioner’s inter partes summons dated 6 June 2018 (“the Time Extension Summons”), a draft of which was handed up by Mr Marwah on behalf of the Petitioner to the court at the hearing on 6 June 2018, seeking (i) an extension of time for the Legal Aid Department to pay the security of HK$20,000 for the Petitioner, or (ii) an extension of time for the Petitioner to file the Inter Partes Directions Summons.

In what follows, references to Sections shall be to the Ordinance.

BASIC FACTS

2.  The Petitioner was a prospective candidate at the 2018 Legislative Council By‑election for the New Territories East Geographical Constituency (“the By-election”).  According to the Petitioner, on 25 January 2018, he attended the offices of the Returning Officer and submitted his nomination form, duly signed and completed and including the declaration required by Section 40(1)(b)(i) to the effect that he “will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

3.  On 31 January 2018, the Returning Officer issued a Note of Decision as to Validity of Nomination informing the Petitioner that his nomination as a candidate at the By-election was invalid, on the ground that she was not satisfied that the Petitioner genuinely and truly intended to uphold the Basic Law of the HKSAR and pledge allegiance to the HKSAR and that he had duly complied with Section 40(1)(b)(i) in making the aforesaid declaration, without having given the Petitioner any prior opportunity to address the Returning Officer’s concerns or explain the matters relied upon by the Returning Officer in coming to her conclusion.  The Petitioner contends that there were multiple material irregularities resulting in his nomination being determined to be invalid.

4.  For the present purposes, it is not necessary for me to set out the Returning Officer’s reasoning process which led to her conclusion that the Petitioner’s nomination as a candidate at the By-election was invalid, or the alleged material irregularities relied upon by the Petitioner, save to mention that the grounds relied by the Petitioner in support of this Election Petition are, in my view, reasonably arguable.

5.  On 11 March 2018, the By-election took place. On 16 March 2018, the Returning Officer published in the Gazette a notice declaring that Mr Fan Kwok-wai Gary (“Mr Fan”) was elected as a member of the Legislative Council for the New Territories East Geographical Constituency.

6.  On 11 May 2018, legal aid was granted to the Petitioner to pursue the present Election Petition, and Messrs Daly Ho & Associates (“DHA”) were assigned as solicitors to act for the Petitioner.  On 14 May 2018, counsel were assigned to act for the Petitioner.

7.  On 15 May 2018, the Petitioner lodged the Election Petition, and gave Notice of Lodgement of Petition to the Returning Officer, Mr Fan and the Secretary for Justice.  In the Notice, it was stated that “the Petitioner is aided by the Legal Aid Department in these proceedings and would seek Order from the Court to waive the requirement to give security as required by section 66 of the Legislative Council Ordinance (Cap 542)”.

8.  On 15 May 2018, the Petitioner took out the Ex Parte Directions Summons seeking an order that his obligation to give security as required by Section 66 be waived.

9.  On 17 May 2018, the court wrote to the Petitioner’s solicitors asking the Petitioner to justify why the said application could be made by way of an ex parte summons.

10.  On 21 May 2018, the Petitioner’s solicitors wrote to the court stating that after further reviewing the matter with counsel, it was acknowledged that a mistake had been made in lodging the said application by way of an ex parte summons, and that the application for dispensing with the requirement of giving security for costs should instead be made by way of an inter partes summons.  Accordingly, the Inter Partes Directions Summons was taken out to rectify the mistake.

11.  On 24 May 2018, the Department of Justice drew DHA’s attention to the fact that the Inter Partes Directions Summons was issued out of time and asked DHA whether any affirmation in support of the Inter Partes Directions Summons had been filed by the Petitioner.

12.  On 29 May 2018, the Department of Justice invited DHA to file an affirmation or affirmations to explain (i) why no application for extension of time to apply for directions was made; and (ii) the delay in taking out the Inter Partes Directions Summons.

13.  By a letter dated 30 May 2018, DHA responded, or purportedly responded, to the matters raised by the Department of Justice.

14.  The Ex Parte Directions Summons and Inter Partes Directions Summons came before this court on 6 June 2018.  At the hearing, Mr Marwah handed up a copy of the Time Extension Summons and informed the court that it would be issued on the same date and asked the court to deal with the application at the same time.  Ms Chung (for the Returning Officer) did not object to the Time Extension Summons being dealt with by the court together with the other two summonses, but opposed the extension of time sought by the Petitioner.

DISCUSSION

15.  Section 66 states as follows:-

“(1) Within 5 days after lodging an election petition in the Court, or within such other period as the Court directs, the petitioner must give security for all costs that may become payable by the petitioner to any witness who gives evidence in the proceedings on the petitioner’s behalf or to any respondent.

(2) The amount of security to be given under this section is to be of such amount, not exceeding $20,000, as the Court directs. That amount is to be provided in such manner and form as the Court directs.

(3) An election petition is taken to have been withdrawn if this section is not complied with.”

16.  Rule 6 of the Legislative Council (Election Petition) Rules, Cap 542F, provides that:-

“The petitioner shall, within 2 days of the lodgement of the petition or such other period as the Court may direct, serve on the respondent and the Secretary for Justice, notice of the lodgement of the petition and the nature of the security for costs which the petitioner proposes to give in accordance with section 66 of the Ordinance, together with a copy of the petition.”

In what follows, references to Rules shall be to the Legislative Council (Election Petition) Rules.

17.  Rule 7 further makes provisions regarding the manner of application for the court’s directions under Section 66(2), as follows:-

“(1) Application to the Court for directions under section 66(2) of the Ordinance shall be made by the petitioner by summons to a judge in chambers at the time of lodging the petition, or within 2 days thereafter or such other period as the Court may direct.

(3) Subject to subrule (4), all applications under subrule (1) shall be made by inter partes summons, the return day of which shall be not later than 5 days after the lodgement of the petition or the expiry of such other period as the Court may direct for giving security under section 66(1) of the Ordinance.

(4) Where the petitioner proposes to give the maximum amount of security that may be directed under section 66(2) of the Ordinance, and proposes to give such amount by the deposit of money to that extent, an application for directions that the security be given in such maximum amount and by the deposit of money, may be made by ex parte summons, and the Registrar shall by endorsement on the summons order the petitioner to appear at the time and place directed by the Registrar, being not later than 5 days after the lodgement of the petition.”

18.  The meaning and effect of similar provisions relating to District Council election were considered by To J in Yip Yiu Shing Chris v Chan Yuk Ming, HCAL 8/2016 (26 February 2016):-

“[4] The Ordinance and the District Councils (Election Petition) Rules (the ‘Rules’) specified the procedural steps to be taken by a petitioner who wishes to question an election and the time limits within which such steps are to be taken. There are only three simple steps.

[5] The first step is to lodge an election petition pursuant to section 50 of the Ordinance. The petition must be lodged within two months following the date on which the Returning Officer published the result of election in the Gazette. The section does not give the court any discretion to extend the time limit.

[6] Second, pursuant to rule 6 of the Rules, the petitioner has to serve on the respondent and the Secretary for Justice, a notice of the lodgement of election petition and the nature of the security for costs which the petitioner proposes to give in accordance with section 54 of the Ordinance. The petitioner only has two days to serve the notice.

[7] The third step is to give security for costs. Section 54(1) of the Ordinance provides that within five days after lodgement of an election petition, the petitioner must give security for all costs that may become payable by him to any witness who gives evidence in the proceedings on his behalf or to any respondent. The amount of security to be provided, which shall not exceed $20,000, and the manner and form in which it is to be provided shall be determined by the court. For the purpose of seeking that direction, rule 7(1) provides that the petitioner shall apply by inter partes summons to a judge in chambers at the time of lodging the election petition or within two days thereafter. However, rule 7(4) provides a simpler procedure for petitioners who are prepared to give the maximum amount of security, ie $20,000 by depositing cash in court. He may apply by ex parte summons and the Registrar shall order his attendance before the Registrar within not later than five days after the lodgement of the election petition.

[8] In short, a petitioner shall give security for costs, being not more than $20,000 within five days of his lodgement of the election petition. If he is prepared to pay the maximum amount of security in cash, he may apply by ex parte summons to the Registrar to make payment in court. If he wishes to seek direction for giving security in a lesser sum or otherwise than in cash, he has to apply by inter parte summons to a judge in chambers at the time he lodges his petition or within two days thereafter. The court has jurisdiction to extend the time limit in respect of these applications. It would be expedient to adopt the ex parte procedure.

[9] Under section 54(3), if security is not given, the petition is taken to have been withdrawn.  When the above three steps are completed, the petitioner shall within 28 days of giving security apply, pursuant to rule 10, by summons to a judge for a time and place to be fixed for the trial of the election petition.  Failing that, the respondent may within seven days thereafter make the application.”

19.  The above analysis is equally applicable to an election petition lodged under the Ordinance.  In summary:-

(1)   The petitioner is required to –

(a)   take out a summons at the time of lodging the petition, or within 2 days thereafter, for the court’s directions as regards the amount, manner and form of the security; and

(b)   give the security as directed by the court within 5 days of lodging the election petition.

(2)   The application referred to in (1)(a) above should be made by way of an inter partes summons, unless the petitioner proposes to give security in the amount of HK$20,000 by deposit of money in which event the application may be made by way of an ex parte summons.

(3)   The time limits referred to in (1)(a) and (b) above may be extended by the court.

(4)   In default of the obligation to give security as required by Section 66(1), the election petition is taken to have been withdrawn.

20.  In the present case, it is clear that the Petitioner’s application for directions under Section 66(2), namely, a waiver of his obligation to give security, ought to have been made by way of an inter partes summons because the Petitioner was not proposing to give security in the amount of HK$20,000 by deposit of money.  It follows that the Ex Parte Directions Summons was incorrectly issued.

21.  The Petitioner sought to rectify that mistake by issuing the Inter Partes Directions Summons, but it was only issued on 21 May 2018, which was later than 2 days after the time of lodging the Election Petition.  Mr Marwah accepts that there was still time for the Petitioner to issue the Inter Partes Directions Summons on 17 May 2018 upon being alerted by the court on that day that the application for directions ought to have been made by way of an inter partes summons.  However, the Petitioner did not issue the Inter Partes Directions Summons until 21 May 2018, apparently because time was taken by DHA to seek advice from counsel and counsel were not available to advise on the matter promptly or in good time.

22.  The Inter Partes Directions Summons was made returnable on 6 June 2018.  The return date of the Inter Partes Directions Summons should, where possible, be not later than 5 days after the lodgement of the petition pursuant to Rule 7(3) of the Rules.  Be that as it may, in view of the fact that the Inter Partes Directions Summons was returnable only on 6 June 2018, should the court decide to order the Petitioner to give security, the Petitioner would be out of time in giving the security under Section 66(1), which requires such security to be given within 5 days after lodging the petition in the court (unless the court directs otherwise).

23.  Accordingly, the Petitioner required an extension of time to apply for directions as regards the amount, manner and form of the security and/or give such security as may be directed by the court.  The Petitioner did not apply for any extension of time until Mr Marwah indicated at the hearing on 6 June 2018 that the Petitioner would take out the Time Extension Summons.  As mentioned above, the Returning Officer did not object to the court dealing with the Time Extension Summons together with the other two summonses.

24.  The central issue for determination is whether the court ought to extend the time for the Petitioner to apply for directions as regards the amount, manner and form of the security and/or give such security as may be directed by the court.

25.  In relation to the principles for granting an extension of time in this context, Ms Chung has drawn my attention to the following passages in the decision of To J in Yip Yiu Shing Chris, ante:-

“[10] These are simple rules. They impose very tight time limits. There are good reasons. Election petitions are taken out to challenge the result of a District Council election. For the District Council to be able to function efficiently, it is important that there is finality in the election. It cannot be left for an unduly long period of time in an uncertainty as to whether an elected member, ie the respondent, would be successfully challenged. That apart, the respondent who is being challenged has to prepare his case; identify, locate and interview his witnesses; take witness statements; collect exhibits; collate evidence, etc. He has to do so before witnesses and exhibits disappear or otherwise become unavailable or could not be located. Usually, the petitioner who initiates a petition has a good head start and the respondent is at a disadvantage. This makes time all the more of importance to the respondent. That is why the Ordinance and the Rules impose very tight time limits and anticipate petitioners to prosecute their election petition regularly and with due diligence.

[13] While the court has discretion under the Rules to extend time limits, such discretion should be exercised in accordance with legal principles.  It should be sparingly exercised and only for good reasons. Usually leave to serve a notice out of time has to be obtained before the time limit expires.  Retrospective leave may be granted only under unforeseen and rare circumstances.  Ignorance of the procedures and time limits under the Rules is not a good reason.  People who engage in such sort of election activities must have informed themselves about the rules of the election and the rules of challenging it.  After all, there are but a few simple rules to comply with.”

26.  Ms Chung has also referred me to the recent decision of Au J in Lo King Yeung v Eddie Chu Hoi Dick, HCMP 482/2017, 31 July 2017, where the learned judge (in the context of a similar obligation to give security in disqualification proceedings brought under Section 73) stated the following:-

“[23] As Mr Ma fairly accepts, ignorance of the law generally does not amount to a good excuse to justify a default in time. Hence, in Yip Yiu Shing Chris v Chan Yuk Ming (unreported, HCAL 8/2016, 26 February 2016, To J), where the petitioner in an election petition case sought an extension time to ask for directions to give security for costs, To J observed at paragraph 13 as a general principle in guiding the exercise of discretion to grant an extension of time that ‘[i]gnorance of the procedures and time limits under the Rules is not a good reason…’.

[24] If ignorance of the law cannot be regarded as a good excuse or reason, I cannot see how a mistake of law as alleged in the present cases can be accepted as a good reason to excuse a delay.  The mere fact that the mistake was made by the solicitor but not the plaintiff personally does not by itself amount to a sufficiently good reason to justify an exercise of discretion to extend time to the plaintiff.”

27.  In the present case, the Petitioner’s failure to apply for directions and/or give security within the relevant time limits is the result of a combination of two factors: (i) a mistake of law on the part of the Petitioner’s legal adviser(s) as regards the correct form or manner of the application for directions, and (ii) a failure on the part of the Petitioner’s legal adviser(s) to act promptly upon being alerted by the court that the original application for directions by way of the Ex Parte Directions Summons was incorrectly issued.  Neither reason could be regarded as a good excuse for the delay or a good reason for the court to exercise its discretion to extend time.

28.  These having been said, the overriding consideration in determining whether to grant an extension of time must, in my view, be the interest of justice.  The following factors are relevant in the present case.  First, the delay here is for a short period of time only.  The Inter Partes Directions Summons was taken out on 21 May 2018, some 4 days beyond the time limit.  On the other hand, it may be noted that in Lo King Yeung, the application for directions was made some 4 months after the commencement of action.  Second, the Petitioner did attempt to apply, by way of the Ex Parte Directions Summons, for directions on the day of lodging the Election Petition, but mistakenly used an incorrect form of summons.  Third, in view of the fact that the Petitioner was at all material times, and is, legally aided, there are good reasons to dispense with the requirement of security being given by the Petitioner.  Fourth, the Returning Officer has not, in my view, suffered any real or substantial prejudice as a result of the delay which could not be compensated for by an appropriate order as to costs.  Fifth, the Petitioner’s case is, I consider, reasonably arguable.  Sixth, the issues raised by the Petitioner in this Election Petition, in particular the issue of whether the Returning Officer ought to have given the Petitioner a proper opportunity to address her concerns or explain the matters relied upon by her in coming to her conclusion that the Petitioner’s nomination was invalid before making her decision, are issues of general public importance.

29.  It seems to me that refusing to extend time here would, effectively, be punishing the Petitioner for mistakes made, or lack of diligence being exercised, by his legal adviser(s).  I do not consider that to be a proportionate response to the short delay in making the application for directions, and I am prepared to exercise my discretion to extend time in the Petitioner’s favour.

30.  On the question of security, I do not consider that there is any useful purpose in requiring the Petitioner to pay HK$20,000, or a lesser amount, as security for the costs that may become payable by the Petitioner to any witness who gives evidence in the proceedings on the petitioner’s behalf or to any respondent, because the Director of Legal Aid would obviously be able to pay the relevant costs on behalf of the Petitioner if ordered to be so by the court at the end of the day.  I consider that this is an appropriate case to dispense with the requirement of giving security by the Petitioner.

DISPOSITION

31.  In respect of the Ex Parte Directions Summons, I grant leave to the Petitioner to withdraw the same.

32.  In respect of the Time Extension Summons, I grant an extension of time retrospectively for the Petitioner to file the Inter Partes Directions Summons on 21 May 2018.

33.  In respect of the Inter Partes Directions Summons, I make an order directing that the obligation of the Petitioner to give security under Section 66 of the Legislative Council Ordinance, Cap 542, be dispensed with.

34.  On the question of costs, Mr Marwah fairly accepts that the Returning Officer should have the costs of these applications.  I order the Petitioner to pay the Returning Officer’s costs of and occasioned by the three summonses, including the costs of the hearing on 6 June 2018, to be taxed if not agreed.

35.  In so far as the Petitioner’s own costs are concerned, I am not minded to allow legal aid taxation, because those costs have been incurred as a result of what I regard to be elementary mistakes on the part of the Petitioner’s legal adviser(s) who have acted well below the standard that could reasonably be expected of reasonably competent lawyers.  In this regard, in addition to the mistake in using the incorrect form of application originally, there was a failure to apply for directions promptly on 17 May 2018 even though they had been alerted by the court of the mistake, and also a failure to apply for an extension of time to issue the Inter Partes Directions Summons until the hearing on 6 June 2018 notwithstanding the Department of Justice’s letters dated 24 and 29 May 2018 respectively.  In my view, the mistakes and shortcomings are quite inexcusable, and costs have been unnecessarily incurred and wasted.  However, in case there should be some other relevant matters which I am not aware of or which I ought to have taken into account in deciding whether to disallow legal aid taxation, the order disallowing legal aid taxation is an order nisi only, with liberty to the Petitioner or his legal advisers to apply for a variation of the same within 14 days from the date of this decision.