HCAL51_2012 Right Vote

8/12/2019 HCAL51_2012 Right Vote

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HCAL 51/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 51 OF 2012

____________

IN THE MATTER of an Application

by the Applicant for Leave to Apply

for Judicial Review pursuant to

Order 53, rule 3 of the Rules of the

High Court, Cap 4A

and

IN THE MATTER of

sections 39(1)(b)(i) and 39(1)(d) of

the Legislative Council Ordinance,

Cap 542and

IN THE MATTER of Articles 25, 26,

28 and 39 of the Basic Law and/or

Articles 5(1) and 11(4) and 21 of the

Hong Kong Bill of Rights and/or


International Covenant on Civil and

Political Rights 1966____________

BETWEEN

WONG HIN WAI Applicant

and

SECRETARY FOR JUSTICE Respondent

____________

AND


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HCAL 54/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 54 OF 2012

____________

IN THE MATTER of an Application

by the Applicant for Leave to Applyfor Judicial Review pursuant to

Order 53, rule 3 of the Rules of the

High Court, Cap 4A

and

IN THE MATTER of

sections 39(1)(b)(i) and 39(1)(d) of

the Legislative Council Ordinance,

Cap 542

and

IN THE MATTER of Articles 25, 26,

28 and 39 of the Basic Law and/or


Hong Kong Bill of Rights and/or


International Covenant on Civil and

Political Rights 1966____________

BETWEEN

LEUNG KWOK HUNG Applicant

and

SECRETARY FOR JUSTICE Respondent

____________(Heard together)


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Before: Hon Lam J in Court

Dates of Hearing: 6 and 14 June 2012

Date of Decision: 14 June 2012

Date of Reasons for Decision: 21 June 2012

________________________________

R E A S O N S F O R D E C I S I O N

________________________________

1. These two cases were heard together in view of thecommonality in the issues being involved. In both cases, challenge is

mounted against the disqualification provisions under Section 39(1)(b)(i)

and (d) of the Legislative Council Ordinance [the Impugned Provisions]

regarding their constitutionality. The main relief sought is in the

following terms,

A declaration that sections 39(1)(b)(i) and 39(1)(d) of the

LCO are inconsistent with Articles 25, 26, 28 and 39 of the

Basic Law of the Hong Kong Special Administrative Region

and/or Articles 5(1), 5(4) and 21 of section 8 of the Hong KongBill of Rights Ordinance Cap 383 and/or Articles 9(1), 9(4) and

25 of the International Covenant on Civil and Political Rights1966, and are unconstitutional.

2. The Applicant in HCAL 51 of 2012, Wong Hin Wai[Wong] was convicted in the Eastern Magistracy on 11 January 2012 of

behaving in a disorderly manner in a public place, contrary to Section

17B(2) of the Public Order Ordinance Cap 245 in respect of an incident

on 10 April 2011. The magistrate sentenced him to 14 days

imprisonment. He lodged an appeal against the conviction and sentence.

He was granted bail pending appeal. The appeal is unlikely to be heard


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before the nomination period for the 2012 Legislative Council [LegCo]

Election.

3. The Legislative Council Election will be held on9 September 2012. The nomination period (14 days) is likely to be in the

second half of July or early August 2012.

4. Wong intends to stand for election in the LegCo Election.However, by reason of the Impugned Provisions, he is disqualified frombeing nominated unless he served his sentence in the meantime despite

his appeal. I will set out Section 39(1) to (4) below,

(1) A person is disqualified from being nominated as a

candidate at an election, and from being elected as a

Member, if the person

(a) is

(i) a judicial officer; or

(ii) a prescribed public officer; or

(iii) an officer of the Legislative Council or a

member of staff of The Legislative Council

Commission; or

(b) has, in Hong Kong or any other place, been

sentenced to death or imprisonment (by whatever

name called) and has not either

(i) served the sentence or undergone such other

punishment as a competent authority may have

been substituted for the sentence; or

(ii) received a free pardon; or

(c) has been convicted of treason; or

(d) on the date of nomination, or of the election, is

serving a sentence of imprisonment; or

(e) without limiting paragraph (b), where the election is

to be held or is held within 5 years after the date of

the persons conviction, is or has been convicted

(i) in Hong Kong or any other place, of an offencefor which the person has been sentenced to

imprisonment, whether suspended or not, for a


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term exceeding 3 months without the option of a

fine; or

(ii) of having engaged in corrupt or illegal conduct

in contravention of the Elections (Corrupt andIllegal Conduct) Ordinance (Cap. 554); or

(iii) of an offence against Part II of the Prevention of

Bribery Ordinance (Cap. 201); or

(iv) of any offence prescribed by regulations in force

under the Electoral Affairs Commission

Ordinance (Cap. 541); or

(f) is

(i) ineligible to be a candidate, or to be elected as a

Member, at the election; or(ii) disqualified from being a candidate, or from

being elected as a Member, at the election,

because of the operation of this or any other law; or

(g) is a representative or salaried functionary of a

government of a place outside Hong Kong; or

(h) is a member of any national, regional or municipallegislature, assembly or council of any place outside

Hong Kong, other than a peoples congress or

peoples consultative body of the Peoples Republicof China, whether established at the national or locallevel; or

(i) is an undischarged bankrupt or, within the previous

5 years, has either obtained a discharge in bankruptcy

or has entered into a voluntary arrangement withinthe meaning of the Bankruptcy Ordinance (Cap. 6)

with the persons creditors, in either case withoutpaying the creditors in full.

(2) A person is also disqualified from being nominated as a

candidate at an election if the person has been foundunder the Mental Health Ordinance (Cap. 136) to be

incapable, by reason of mental incapacity, of managing

and administering his or her property and affairs, but aperson disqualified under this subsection is eligible for

nomination as a candidate if, under that Ordinance, it issubsequently found that the person has become capable of

managing and administering his or her property andaffairs.

(3) A person is also disqualified from being elected as a

Member if the person has been found under the Mental

Health Ordinance (Cap. 136) to be incapable, by reason ofmental incapacity, of managing and administering his or


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her property and affairs, but a person disqualified under

this subsection ceases to be disqualified if, under that

Ordinance, it is subsequently found that the person has

become capable of managing and administering his or her

property and affairs.

(4) A person is also disqualified from being elected as a

Member for a functional constituency (other than the

District Council (first) functional constituency and the

District Council (second) functional constituency) if,

since the close of nominations, the person has ceased to

have a substantial connection with the constituency.

5. The Applicant in HCAL 54 of 2012, Leung Kwok Hung[Leung], who is an incumbent LegCo member, faced a similar dilemma.

On 19 March 2012, he was convicted of two charges of criminal damage,

one charge of acting in a disorderly manner at a public gathering and one

charge of behaving in a noisy or disorderly manner in a public place in

the Kowloon City Magistracy. He was sentenced on 20 March 2012 to

2 months imprisonment for the criminal damage charges, 5 weeks

imprisonment for acting disorderly, 5 weeks imprisonment for behaving

in a noisy and disorderly manner. The magistrate also ordered a total of

2 months imprisonment to be served concurrently. Leung lodged an

appeal against conviction and sentence and he obtained bail pending

appeal. Again, it is unlikely that the appeal can be heard prior to the

nomination period. Leung also intends to stand for election in the LegCo

Election.

6. By reason of his sentence, Leung also faced a motion torelieve him of his duty as LegCo member pursuant to Article 79(6) of the

Basic Law, which provides,

Article 79

The President of the Legislative Council of the HongKong Special Administrative Region shall declare that a


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member of the Council is no longer qualified for the office

under any of the following circumstances:

(1) When he or she loses the ability to discharge his or her

duties as a result of serious illness or other reasons;(2) When he or she, with no valid reason, is absent from

meetings for three consecutive months without the

consent of the President of the Legislative Council;

(3) When he or she loses or renounces his or her status as a

permanent resident of the Region;

(4) When he or she accepts a government appointment and

becomes a public servant;

(5) When he or she is bankrupt or fails to comply with a court

order to repay debts;(6) When he or she is convicted and sentenced to

imprisonment for one month or more for a criminal

offence committed within or outside the Region and is

relieved of his or her duties by a motion passed by two-

thirds of the members of the Legislative Council present;

and

(7) When he or she is censured for misbehaviour or breach of

oath by a vote of two-thirds of the members of theLegislative Council present.

7. The motion was debated on 19 April 2012 in the LegCo.Out of the 46 members who were present, 19 voted in favour of the

motion and 25 voted against it. One member abstained. Since the motion

did not attain the requisite majority, it was negatived. Leung continued to

serve as an incumbent LegCo member.

8. In his Second Affirmation, Leung set out the history of hisprevious convictions and sentences and his election results in the previous

LegCo elections at paras 11 and 12. I quote the relevant data,

11. The following are the occasions when I was sentenced to

imprisonment:

(1) On 5 June 1979, I was sentenced to one months

imprisonment for Unlawful Assembly (contrary tosection 18 of the Public Order Ordinance, Cap. 245)


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(2) On 11 May 1999, I was sentenced to 14 day

imprisonment suspended for 12 months for Contempt

of legislative Council (contrary to section 17 of the

Legislative Council (Powers and Privileges)

Ordinance, Cap. 382).

(3) On 26 May 2000, I was sentenced to 7 day

imprisonment for Contempt of Legislative Council

(contrary to section 17 of the Legislative Council

(Powers and Privileges) Ordinance, Cap. 382). On

the same day, I was sentenced to 7 day imprisonment

for a Breach of Suspended Sentence (contrary to

section 109F the Criminal Procedure Ordinance,

Cap. 221). The above sentences were to be served

consecutively.

(4) On 27 March 2001, I was sentenced to 7 day

imprisonment for Contempt of Legislative Council


(Powers and Privileges) Ordinance, Cap. 382)

(5) On 23 April 2002, I was sentenced to 2 weeksimprisonment for Contempt of Legislative Council


(Powers and Privileges) Ordinance, Cap. 382).

12. The following are my election results in the previousLegCo Elections in which I was nominated as a candidate:

(1) I received 18,235 votes in the 2000 LegCo Election

and was not elected as a Legislative Council memberin the 2000 LegCo Election. The percentage of votes

which I received was 5.9%.

(2) I received 60,925 votes in the 2004 LegCo Election

and was being elected as a Legislative Council

member in the 2004 LegCo Election. The percentage

of votes which I received was 14.1%.(3) I received 44,763 votes in the 2008 LegCo Election

and was being elected as a Legislative Council

member in the 2008 LegCo Election. The percentage

of votes which I received was 12.4%.

(4) I received 108,927 votes in the 2010 LegCo By-

election and was being elected as a Legislative

Council member in the 2010 LegCo By-election.

The percentage of votes which I received was

79.7%.


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The relevant constitutional framework and the provisions relied upon

9. Article 66 of the Basic Law provides that the LegCo shall bethe legislature of the Hong Kong Special Administrative Region. Its

composition is governed by Article 67. At least 80 per cent of its

membership shall be composed of Chinese citizens who are permanent

residents of Hong Kong with no right of abode in any foreign country.

10. Article 68 is important, and I quote,Article 68

The Legislative Council of the Hong Kong Special

Administrative Region shall be constituted by election.

The method for forming the Legislative Council shall be

specified in the light of the actual situation in the Hong Kong

Special Administrative Region and in accordance with the

principle of gradual and orderly progress. The ultimate aim is

the election of all the members of the Legislative Council by

universal suffrage.

The specific method for forming the Legislative Counciland its procedures for voting on bills and motions are

prescribed in Annex II: Method for the Formation of the

Legislative Council of the Hong Kong Special Administrative

Region and Its Voting Procedures

11. Annex II Part I set out the method for the formation of theLegCo, specifically prescribing the composition for the first three terms.

12. Article 69 provides that (apart from the first term), the termof office of the LegCo shall be four years.

13. Article 73 sets out the powers and functions of the LegCoand Article 74 provides for how bills may be introduced by members.

14. I have already referred to Article 79(6).


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15. Therefore the Basic Law envisages that membership to theLegCo, which plays the important role of the legislature for Hong Kong,

by election. Article 26 of the Basic Law confers the rights pertaining to

election, including LegCo election, to permanent residents. It reads,

Permanent residents of the Hong Kong Special Administrative

Region shall have the right to vote and the right to stand for

election in accordance with law.

16. These are rights to be exercised in accordance with law. Thelaw is to be found in the Hong Kong Bill of Rights [BoR], Article 21 ofwhich reads:

Right to participate in public life

Every permanent resident shall have the right and the

opportunity, without any of the distinctions mentioned in

article 1(1) and without unreasonable restrictions

(a) to take part in the conduct of public affairs, directly orthrough freely chosen representatives;

(b) to vote and to be elected at genuine periodic electionswhich shall be by universal and equal suffrage and shallbe held by secret ballot, guaranteeing the free expressionof the will of the electors;

(c) to have access, on general terms of equality, to publicservice in Hong Kong.

17. Chief Justice Li considered the permissible restrictions thatcould be imposed on fundamental rights and freedoms under Chapter III

of the Basic Law on proper construction of Article 39 in Gurung Kesh

Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at paras 26 to

28. As for rights protected both under the Basic Law and the BoR, His

Lordship said at para 26,

Thus, in the context of rights recognized by the ICCPR as

applied to Hong Kong (whether or not such rights are also

enshrined in the Basic Law), art 39(2) spells out the two

requirements which any purported restriction must satisfy.


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The two requirements are: (1) prescribed by law; and (2) the restrictions

shall not contravene the provisions of Article 39(1), viz it must be

consistent with the ICCPR as applied to Hong Kong prior to 1 July 1997.

18. The Applicants said the Impugned Provisions areinconsistent with Article 21 of the BoR and Article 26 of the Basic Law.

They also relied on the right to equality under Article 25 of the Basic Law.

19.

In addition, they asked the court to strike down theImpugned Provisions by reason of the curtailment of their rights to liberty,

in particular their rights to bail pending appeal, with reference to

Article 28 of the Basic Law and Article 5(1) and (4) of the BoR.

The proper approach in addressing the challenge based on Article 21

BoR and Article 26 of the Basic Law

20. In Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD166, A Cheung J (as he then was) had to consider what is the correct

approach in determining whether a restriction is reasonable in the context

of Article 21 of the BoR. His Lordship held that the proper approach is to

apply the proportionality test. At para 73, he said,

Furthermore, for a right as fundamental as the right to vote,a restriction that is not proportionate to the achievement of the

(legitimate) aim that it seeks to achieve and that goes beyond

what is necessary to achieve that aim can hardly be said to be areasonable one.

That was a conclusion reached after a full discussion and review of the

relevant local and international authorities. It was also premised on the

proposition that despite the difference in the language between Article 3

of Protocol No 1 of the ECHR and Article 21 of the BoR, the substance


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of the rights are the same and European jurisprudence can provide

guidance on the construction of the latter (see para 102). His Lordship, in

essence, applied the approach of Hirst v United Kingdom (No 2) (2006)

42 EHRR 41 to the local context in rejecting the justifications offered by

the Government for the restriction on prisoners right to vote, see paras

104 to 108 of Chan Kin Sum.

21. In the present case, Mr Thomas SC (who also appeared forSecretary for Justice in Chan Kin Sum) repeated his contention that thecourt should not adopt the proportionality test, at least not a

proportionality test with the requirement that the restriction is no more

than what is necessary to achieve the legitimate aim. In addition to cases

he cited before A Cheung J, counsel referred to Solicitor v Law Society of

Hong Kong (2003) 6 HKCFAR 570 paras 31 to 34 for a proportionality

test without any reference to necessity. At para 31, the Chief Justice said,

The limitation imposed must pursue a legitimate purpose andthere must be reasonable proportionality between the limitation

and the purpose sought to be achieved. These dual

requirements will be referred to collectively as the

proportionality test.

22. Mr Thomas also submitted that conceptually the right to voteand the right to stand for election stand on different footings though both

rights are protected under art 26 BL and art 21 BoR. Thus the

jurisprudence on the right to vote cannot be carried across for the purpose

of resolving cases on the right to stand for election. In this connection,

counsel cited the decision of the Supreme Court of the United Kingdom

inR (Barclay) v Lord Chancellor [2010] 1 AC 464 at paras 53 to 64 and

the judgment of the Grand Chamber of the European Court of Human

Rights inZdanoka v Latvia (2007) 45 EHRR 17 paras 102 to 115. Those


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cases concerned the rights under Article 3 of Protocol No.1 to the

European Convention on Human Rights, which is in the following terms,

The High Contracting Parties undertake to hold free electionsat reasonable intervals by secret ballot, under conditions whichwill ensure the free expression of the opinion of the people in

the choice of the legislature.

23. InZdanoka, the Grand Chamber said at para 115(e),As regards the right to stand as a candidate for election,

i.e. the so-called passive aspect of the rights guaranteed by

Art 3 of Protocol No 1, the Court has been even more cautiousin its assessment of restrictions in that context than when it has

been called upon to examine restrictions on the right to vote, i.e.the so-called active element of the rights under Art 3 of

Protocol No 1. In the Melnychenko judgment cited above, theCourt observed that stricter requirements may be imposed on

eligibility to stand for election to Parliament than is the case for

eligibility to vote. In fact, while the test relating to the active

aspect of Art 3 of Protocol No 1 has usually included a wider

assessment of the proportionality of the statutory provisions

disqualifying a person or a certain group of persons from the

right to vote, the Courts test in relation to the passive aspectof the above provision has been limited largely to a check on

the absence of arbitrariness in the domestic procedures leading

to disqualification of an individual candidate.

24. Para 115(b) and (c) on implied limitations are also relevantfor our purposes,

(b) The concept of implied limitations under Art.3 of

Protocol No.1 is of major importance for the determination of

the relevance of the aims pursued by the restrictions on the

rights guaranteed by this provision. Given that Art.3 is notlimited by a specific list of legitimate aims such as those

enumerated in Arts 8 to 11, the contracting states are thereforefree to rely on an aim not contained in that list to justify a

restriction, provided that the compatibility of that aim with the

principle of the rule of law and the general objectives of the

Convention is proved in the particular circumstances of a case.

(c) The implied limitations concept under Art.3 of Protocol

No.1 also means that the Court does not apply the traditional

tests of necessity or pressing social need which are used inthe context of Arts 8-11. In examining compliance with Art.3


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of Protocol No.1, the Court has focused mainly on two criteria:

whether there has been arbitrariness or a lack of proportionality,

and whether the restriction has interfered with the free

expression of the opinion of the people. In this connection, the

wide margin of appreciation enjoyed by the contracting stateshas always been underlined. In addition, the Court has stressed

the need to assess any electoral legislation in the light of thepolitical evolution of the country concerned, with the result that

features unacceptable in the context of one system may bejustified in the context of another.

25. These passages provide some support for the submission ofMr Thomas on the difference between Art 21 of BoR and the application

of the justification test in respect of other articles in the BoR, but only to

the limited extent of the non-application of the traditional test of necessity.

The Grand Chamber explicitly referred to proportionality as one of the

criteria for assessing compliance with Art 3 of Protocol No 1.

26. InBarclay, Lord Collins summarized the relevant Europeanjurisprudence in several propositions set out at paras 52 to 64 of the

judgment. The relevant test can be found at paras 58 and 59,

58. Sixth, limitations on the exercise of the right to vote or

stand for election must be imposed in pursuit of a legitimate

aim, must not be arbitrary or disproportionate, and must not

interfere with the free expression of the opinion of the people in

the choice of the legislature

59. Seventh, such limitations must not curtail the rights under

article 3 to such an extent as to impair their very essence, anddeprive them of their effectiveness. They must reflect, or not

run counter to, the concern to maintain the integrity and

effectiveness of an electoral procedure aimed at identifying the

will of the people through universal suffrage.

27. In the latest decision of the Grand Chamber on Art 3 ofProtocol No 1, Scoppola v Italy (No 3) Application no 126/05, 22 May

2012, the general approach can be found at paras 83 to 84 of thejudgment,


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83. Nevertheless, the rights enshrined in Article 3 of Protocol

No. 1 are not absolute. There is room for implied limitations

and the Contracting States must be afforded a margin of

appreciation in this sphere. The Court has repeatedly affirmed

that the margin in this area is wide (see Mathieu-Mohin andClerfayt, cited above, 52; Matthews v. the United Kingdom

[GC], no. 24833/94, 63, ECHR 1999-I; Labita v. Italy[GC],no. 26772/95, 201, ECHR 2000-IV; and Podkolzina v. Latvia,

no.46726/99, 33, ECHR 2002-II). There are numerous ways

of organising and running electoral systems and a wealth of

differences, inter alia, in historical development, cultural

diversity and political thought within Europe which it is for

each Contracting State to mould into its own democratic vision

(seeHirst (no. 2)[GC], cited above, 61).

84. However, it is for the Court to determine in the last resortwhether the requirements of Article 3 of Protocol No. 1 have

been complied with; it has to satisfy itself that the conditions donot curtail the rights in question to such an extent as to impair

their very essence and deprive them of their effectiveness; that

they are imposed in pursuit of a legitimate aim; and that the

means employed are not disproportionate (see Mathieu-Mohinand Clerfayt, cited above, 52). In particular, any conditions

imposed must not thwart the free expression of the people in

the choice of the legislature in other words, they must reflect,

or not run counter to, the concern to maintain the integrity and

effectiveness of an electoral procedure aimed at identifying thewill of the people through universal suffrage. Any departure

from the principle of universal suffrage risks undermining the

democratic validity of the legislature thus elected and the lawsit promulgates. Exclusion of any groups or categories of the

general population must accordingly be reconcilable with theunderlying purposes of Article 3 of Protocol No. 1 (see Hirst

(no.2)[GC], cited above, 62).

28. Similar statements can be found in the judgment in Frodl vAustria (2011) 52 EHRR 5. At para 35 of the judgment, the court

expressed the principle of proportionality in these terms,

The principle of proportionality requires a discernible and

sufficient link between the sanction and the conduct and the

circumstances of the individual concerned.

29. These last two cases, like Chan Kin Sum, were about theright to vote. But the principle of proportionality is equally applicable to


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the right to stand for election though stricter requirement can be imposed

on eligibility to stand as compared with eligibility to vote. Given the

distinction between the role of a voter and the role of candidate for Legco

election (who, if elected, would have to perform the duties of a Legco

member), the legitimate aims for which reasonable restriction can be

imposed can be different. Thus, the criteria for eligibility for the latter

could be considerably stricter than those for the former. This is not

disputed by Mr Dykes SC. However, the criteria restricting the right to

stand for election must still subject to the proportionality test asdemonstrated byZdanoka andBarclay, both of which were cases on right

to stand for election.

30. The principle of proportionality has also been applied in thecontext of ICCPR. In Nowaks CCPR Commentary, 2

ndEdn para 27 at

p 578-579, in the discussion of reasonable restriction in the context of the

right to be elected under Article 25 of ICCPR (the equivalent of

Article 21 of BoR), it is said that the restriction cannot be excessive or

discriminatory and must be adequately justified. At footnote 70, the

learned author commented that the requirement of special justification

was inferred by the Committee from the principle of proportionality.

Further at paras 48 to 49 (at p 592-3), the origin of the phrase without

unreasonable restrictions was traced back to the Yugoslav-French

proposal at the drafting stage. After a review of the cases considered by

the Committee, the learned author concluded at para 49,

it is difficult to draw general conclusions as to the

permissibility of restrictions on democratic participation. Many

questions remain controversial, for example: whether

persons convicted of minor criminal offences may be excluded

from right to vote In other words, whether specificrestrictions on various political rights are reasonable may only

be evaluated on a case-by-case basis by drawing on the


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principle of proportionality and taking into account the overall

political situation of the State concerned.

31. The proportionality test was adopted by Cheung J (asCheung JA then was) in the context of right to stand for election under

Article 21 of BoR inLau San Ching v Liu, Apollonia (1995) 5 HKPLR 23.

Mr Thomas submitted that the test was agreed between the parties. That

may be so. However, as evident from the judgment, Cheung J also

reviewed the relevant cases on the topic when His Lordship agreed to

adopt the same approach. Lau San Ching was cited by Cheung J in

Chan Kin Sumat para 73.

32. In the context of election for the Medical Council, Chu J (asshe then was) also applied the proportionality test with reference to

Article 21 of BoR in Tse Hung Hing v Medical Council [2010] 1 HKLRD

111. Though it was a judgment given after parties had agreed on themanner in which the case was to be disposed of, Her Ladyship did give

reasons for making the order at the request of the parties. It is also plain

from the judgment that Her Ladyship did not simply endorse the agreed

position of the parties (as she was entitled to). Instead, Her Ladyship did

give her independent consideration to the submissions of the parties and

explained in her judgment why she held the restriction in question to be

unreasonable. At para 9 of her judgment, Her Ladyship applied the

proportionality test.

33. Having considered the authorities and the submissions of theparties, I come to the conclusion that as a matter of Hong Kong law,

whether a restriction is unreasonable in the context of Article 21 of BoR

should be determined by reference to the following test,


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(a) Whether the restriction is imposed to pursue a legitimate aim;

(b) Whether there is a rational connection between the aim and

the restriction adopted;

(c) Whether the restriction is proportionate.

34. In view of the European jurisprudence on Article 3 ofProtocol No 1 discussed above (where a distinction was drawn with the

necessity test under other articles of the ECHR), I refrain from using any

criteria based on necessity or the third limb of the justification test laid

down by the Chief Justice Li in Secretary for Justice v Yau Yuk Lung

(2007) 10 HKCFAR 335 at p 349 in the context of right to equal

treatment under Article 25 of the Basic Law. The concept of no more

than necessary in the context of that test has recently been discussed by

Chief Justice Ma in Fok Chun Wa v Hospital Authority FACV 10 of 2011,

2 April 2012, at paras 75 to 77.

35. It does not matter whether the test is called a proportionalitytest or a reasonable test. In the context of Article 21 of BoR, the criterion

of proportionality (the third limb) is to ensure that the restriction does not

curtail the rights in question to such an extent as to impair their very

essence or to deprive them of their effectiveness, and there has to be a

discernible and sufficient link between the sanction and the conduct and

the circumstances of the individual concerned. In the application of the

test, the court must also have regard to the historical and current state of

political development in Hong Kong. This has been emphasized in the

European jurisprudence, as summarized in the fourth proposition of

Lord Collins inBarclay at para 56,


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Fourth, the content of the obligation under article 3 varies in

accordance with the historical and political factors specific to

each state; and for the purposes of applying article 3, any

electoral legislation must be assessed in the light of the political

evolution of the country concerned, so that features whichwould be unacceptable in the context of one system may be

justified in the context of another

The history of the disqualification provision in the Impugned Provisions

36. In the Affidavit of the Secretary for Constitutional andMainland Affairs, he set out the legislative history in Hong Kong

regarding restrictions imposed on the right of a convicted person to stand

for election. He traced the first introduction of a similar provision to

Clause 6(b) of the Urban Council Bill 1955, which was passed without

any amendment. The provision was in these terms,

6. A person shall be disqualified for being elected or being

nominated for election or being appointed or holding office as

an ordinary member if he

(a) holds any office of emolument under the Crown otherthan as a member of the Defence Force and Auxiliary

Services or Hong Kong Police Reserve Force or any

office of emolument in the gift or disposal of the Council

or any committee thereof or having held such office has

been dismissed therefrom;

(b) has in any part of Her Majestys Dominions or in anyterritory under Her Majestys Protectorate or in any

territory in which Her Majesty has from time to timejurisdiction been sentenced by one of Her Majestys

Courts to death or imprisonment (by whatever name

called) for a term exceeding twelve months and has not

either suffered the punishment to which he was sentenced

or such other punishment as may by competent authority

have been substituted therefor or received a free pardon;

(c) has been convicted of treason;

(d) is disqualified for being elected or being nominated for

election or being appointed or holding office as an

ordinary member under any enactment relating to corrupt

and illegal practices;


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(e) is a member of Parliament, assembly or council whether

central or local of a foreign government or a salaried

functionary of such government;

(f) is an undischarged bankrupt or within five years beforehas either obtained his discharge in bankruptcy or has

entered into a composition with his creditors, in either

case, without paying his creditors in full.

37. A similar provision was found in Clause 10(b) of the UrbanCouncil Bill 1973 which was passed without any amendment.


nominated for election or being appointed or holding office as amem ber if he

(a) holds any office of emolument under the Crown (other

than as a member of an auxiliary force) or any office of

emolument in the gift or disposal of the Councilor any

committee thereof or having held such office has been

dismissed therefrom;

(b) has in any Commonwealth country been sentenced todeath or imprisonment (by whatever name called) for a

term exceeding twelve months and has not either suffered

the punishment to which he was sentenced or such otherpunishment as may by competent authority have been

substituted therefor or received a free pardon;


(d) is disqualified from being elected or being nominated for

election or being appointed or holding office as a member

under any enactment;

(e) is a member of any Parliament. assembly or council.

whether central or local, of a foreign country or a salaried

functionary of a foreign government;

(f) is an undischarged bankrupt or, within the previous five

years, has either obtained his discharge in bankruptcy orhas entered into a composition with his creditors, in either

case without paying his creditors in full.

38. In those days, there were only elections for the UrbanCouncil, which did not play the role of legislature. The disqualification

only applied to those convicted and sentenced to imprisonment for a term


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of more than 12 months. It covered conviction and sentence imposed by

courts in any Commonwealth country.

39. In the early 1980s, the Government consulted the public withregard to district administration in Hong Kong. The idea of setting up

District Boards with elected membership was discussed. The Green

Paper on A pattern of District Administration in Hong Kong published

in June 1980 gave a brief account of the development of local

administrative institutions up to that point in time. After consultation, inJanuary 1981, a White Paper was published. The proposal for the setting

up of District Boards was explained as follows at para 14 of the White

Paper and the elections to the Boards at para 17,

14. One of the main proposals of the Green Paper was thatthe inhabitants of each district should participate to a greater

degree than at present through representatives in administrationat the district level. With this in mind it was proposed that a

District Board should be formed in each district in order toprovide a means of obtaining better local advice and

participation. These Boards would be developed from the City

District Committees in the urban area and from the District

Advisory Boards in the New Territories. They would be

composed of unofficial members representing the people of the

district and the key official members of the District

Management Committee in that district. These proposals have

been generally well supported and the Government intends to

proceed with the establishment of District Boards in all districts.

Elections to District Boards

17. It was proposed in the Green Paper that an elected

element should be added to the District Boards as soon as this

was practicable. The proposal was for this to be done in the

urban area by providing seats on the District Boards for the

Urban Councillors elected in the constituency concerned in

order that they could participate in the work of the Board in

each district. For the New Territories it was proposed that the

residents of each district should elect a certain number of the

members of the relevant District Boards. These proposals have

been generally supported by the public, but a fair number ofcomments have been made about the absence of, and a case has

been argued for, direct elections to District Boards in the urban


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area, on the grounds that the same opportunity for participation

in district administration should be available in all districts. On

this basis, it has been argued that even though there would be

elected Urban Councillors serving on District Boards in the

urban area, this was insufficient and the present proposalswould not ensure adequate representation; also the size of the

Board is such that these Councillors would have less influencethan the larger number of directly elected members will have in

the Boards in the New Territories. The Government acceptsthese arguments and therefore intends to introduce direct

elections to seats on the District Boards representing

constituencies in each district; for the urban area, these would

be in addition to the seats provided for elected Urban

Councillors.

40. Paras 42, 44 and 48 of the White Paper dealt withqualifications for candidates and the disqualifications of some persons to

stand for election,

Qualifications for Candidates

42. As stated, some part of public opinion suggests that

candidates should meet certain higher standards of quaIification

than those required for a voter. The best interests of thecommunity require that those elected should be the most

suitable candidates. The Government takes the view that this

should largely be achieved by the electorate in the deliberateexercise of the vote. To prescribe too many qualifications, over

and above those required for a voter, might inhibit some goodcandidates from coming forward. It might also restrict the

range of choice of appointed members who will continue to beselected, individually, on their merits. Nevertheless, in view of

the strength of the opinion expressed by the public, the

Government considers it justified to introduce a longer period

of residence for candidates than that for the ordinary voter.Certain categories of persons will be excluded from becoming

candidates.

44. Linking the qualifications for candidates to the

qualifications for registered voters would mean that a person

who is disqualified from becoming a registered voter

(paragraph 36 in Chapter 4) would not be eligible to stand for

election. It would also mean that a person of either sex and of

any nationality can stand for election. There will be no

educational or language requirement.


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Exclusion of Certain Persons from becoming a Candidate

48. As stated, a primary qualification for a candidate is that

he is a registered voter who has been ordinarily resident in

Hong Kong for 10 or more years. Accordingly, any candidatemust not fall within the categories set out in paragraph 36 in

Chapter 4 and in paragraph 41(b) above. However, as is

generally desired, the Government will, in addition, propose

that the following categories of persons should not be eligible

to stand as a candidate:

(a) persons who have in the past 10 years been convicted of

any offence in Hong Kong or elsewhere and have hadpassed on them a sentence of imprisonment (whether

suspended or not) for a period not less than 3 months

without the option of a fine;

(b) persons who have been convicted in the past 10 years ofan offence under section 3 or 4 of the now repealed

Prevention of Corruption Ordinance, any offence underPart II of the Prevention of Bribery Ordinance (Cap. 201),

or a corrupt or illegal practice within the meaning of theCorrupt and Illegal Practices Ordinance (Cap. 288); and

(c) employees of the Crown or of the Urban Council, and

full-time judicial officers as defined in the Judicial

Service Commission Ordinance (Cap. 92).

Consideration has been given to excluding from candidacy apractising professional person whose name has been struck off

the register or roll of his profession for professional misconduct.

Such exclusion is considered desirable but difficult to define.

Further consideration will be given to this issue in the drafting

of the necessary legislation.

41. Para 42 referred to the public opinion that candidates shouldmeet higher standards of qualification than those required for voters.

Para 48 referred back to para 36 of the White Paper regarding the

disqualification provision for voters (same as those provided under the

then Urban Council Ordinance). One category listed there was,

a person who has in any Commonwealth country been

sentenced to death or imprisonment for a term exceeding sixmonths and has not either suffered the punishment (or such

other punishment as may have been substituted therefor) orreceived a free pardon.


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42. Thus, there were multiple disqualifications with regard toconvictions and those sentenced to a term of imprisonment and they

appeared in the Electoral Provisions Ordinance 1981 Section 19(b), (c),

(g) and (h),


nominated as a candidate or holding office as a member if he

(a) holds any public office (other than as a member of an

auxiliary force) or any office of emolument in the gift ordisposal of the Urban Council or any committee thereof

or having held such office has been dismissed therefrom;

(b) has in Hong Kong or any other territory or country beensentenced to death or imprisonment (by whatever namecalled) for a term exceeding 3 months and has not either

suffered the punishment to which he was sentenced orsuch other punishment as may by competent authority

have been substituted therefor or received a free pardon;


(d) is disqualified for being elected or being nominated as acandidate or holding office as a member under any

enactment;

(e) is a member of any parliament, assembly or council,

whether central or local, of a foreign country or a salariedfunctionary of a foreign government;

(f) is an undischarged bankrupt or, within the previous

5 years, has either obtained his discharge in bankruptcy or

has entered into a composition with his creditors, in either

case without paying his creditors in full;

(g) where the election is to be held or is held within 10 years

from the date of conviction, has been convicted

(i) of any offence in Hong Kong or any other territoryor country and sentenced to imprisonment, whether

suspended or not, for a term exceeding 3 months withoutthe option of a fine;

(ii) of a corrupt practice or illegal practice within the

meaning of the Corrupt and Illegal Practices Ordinance,

other than the illegal practice consisting of a

contravention of any of the provisions of section 19(2) of

that Ordinance, or of a corrupt or illegal practice within

the meaning of any other enactment for the time being in

force providing for the punishment of corrupt or illegalpractices;


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(iii) of an offence under section 3 or 4 of the repealed

Prevention of Corruption Ordinance;

(iv) of any offence under the Prevention of Bribery

Ordinance; or(h)on the date of nomination or of the election is serving a

sentence of imprisonment.

43. Regarding the disqualification provision under Section 19(b),the relevant period of prison sentence was exceeding 3 months, more

stringent than the equivalent disqualification for voters which was

exceeding 6 months under Section 11(1)(a). Though it was more

stringent, according to the White Paper, the correlation between the two

could be traced back to the public opinion gathered during the 1980

consultation that candidates should meet higher standards of qualification

than voters.

44. Disqualification was provided for those who were servingprison sentence at the time of registration/nomination or at the time of

election for voters under Section 11(1)(e) and for candidates under

Section 19(h). There was no discussion about this provision in the White

Paper.

45. In 1985, election was first introduced for membership ofLegCo for functional constituencies. Disqualification provisions for

voters and candidates which are relevant for our purposes were to be

found in Section 15(2)(a), (d) and (e) and Section 21(1)(c), (g) and (h) of

the Legislative Council (Electoral Provisions) Ordinance 1985. I set

them out as follows,

15 (2) A person shall be disqualified from being registered

as an elector, or even if registered, from voting at an election,if


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(a) he has in Hong Kong or any other place been sentenced to

death or imprisonment (by whatever name called) for a

term exceeding 6 months and has not either suffered the

punishment to which he was sentenced or such other

punishment as may by competent authority have beensubstituted therefor or received a free pardon;

(d) without prejudice to paragraph (a), where the election is

to be held or is held within 7 years from the date of hisconviction he has been convicted

(i) of a corrupt practice or of an illegal practice within

the meaning of the Corrupt and Illegal Practices

Ordinance, other than the illegal practice consisting of a

contravention of any of the provisions of section 19(2) ofthat Ordinance, or of a corrupt or illegal practice withinthe meaning of any other enactment providing for the

punishment of corrupt or illegal practices;

(ii) of any offence under the Prevention of Bribery

Ordinance; or

(e) on the date he applies for registration or on the date of the

election, he is serving a sentence of imprisonment.

21. (1) A person shall be disqualified from being nominatedas a candidate in an election or holding office as an elected

Member if

(c) he has in Hong Kong or any other place been sentenced to

death or imprisonment (by whatever name called) for a

term exceeding 3 months and has not either suffered the

punishment to which he was sentenced or such other

punishment as may by competent authority have been

substituted therefor or received a free pardon;

(g) without prejudice to paragraph (c), where the election is

to be held or is held within 10 years from the date of hisconviction he has been convicted

(i) of any offence in Hong Kong or any other place in

respect of which he has been sentenced to imprisonment,

whether suspended or not, for a term exceeding 3 months

without the option of a fine;

(ii) of a corrupt practice or illegal practice within the

meaning of the Corrupt and Illegal Practices Ordinance,other than the illegal practice consisting of a

contravention of any of the provisions of section 19(2) of


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that Ordinance, or of a corrupt or illegal practice within

the meaning of any other enactment providing for the

punishment of corrupt or illegal practices;

(iii) of any offence under the Prevention of BriberyOrdinance; or

(h) on the date of his nomination or of the election he is

serving a sentence of imprisonment.

46. The disqualification provisions for candidates were the sameas those for the District Boards under the 1981 Ordinance. The same

provisions applied in 1991 when direct election to LegCo was extended

to geographical constituencies.

47. In July 1995, a LegCo member, the Hon Andrew Wong,tabled a private members Bill to amend these disqualification provisions.

The proposals in the Bill included the narrowing of the scope of these

disqualification provisions to those committed of offences specified at

Section 21(1)(g)(ii) and (iii) only and removing the other restrictions

relating to conviction or serving prison sentences. The Bill was opposed

by the Government. The then Secretary for Constitutional Affairs

defended the existing provisions at the Second Reading of the Bill on

28 July 1995.

When introducing his Bill into this Council on 5 July,

Mr WONG argued that our electoral laws should not unduly

limit the franchise or the pool of candidates. This I entirely

agree. Indeed, our electoral system is built precisely on theprinciple of broad based participation. This is what open and

fair elections are all about. But I hardly need toremind thisCouncil that all responsible administrations, and this includes

those in the more liberal jurisdictions, have legislated to

exclude various categories of persons from the electoral process.

And Hong Kong is of no exception. The disqualification

provisions are necessary to protect the integrity not only of the

elections, but also of the representative institutions to which the

candidates are to be returned.


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Most of the disqualification provisions which Mr WONG

tries to remove have been in the statute book for many years.

All were drawn up after extensive public discussion, including

a Green Paper consultation exercise in 1981. They are well

accepted by the public, and there are no known implementationdifficulties. It is, therefore, most astonishing that Mr WONG

should seek to introduce fundamental changes over-night.Indeed, to do so would be wrong in public policy terms:

Firstly, it goes against our proven approach to

constitutional development: gradual, measured evolution rather

than radical, headlong, rush.

Secondly, it goes against the established practice in Hong

Kong that any proposal for major changes are preceded by, and

subject to, comprehensive public consultation. Are the public

ready for the radicalism embodied in the Bill? Has Mr WONG

carried out any systematic public sounding? I certainly am not

aware of any. If he has, he should share his methodology and

results with the Council.

All the above does not mean that the existing legislative

provisions are sacrosanct. But the Administration does firmly

believe that any fundamental change to the electoral system

should be made with extreme care, after detailed study, andthorough consultation. The appropriate time for a

comprehensive review, if the public consider one necessary,should be after the September Legislative Council elections.

48. The motion was negatived with 22 members voted in favourand 32 members voted against it.

49. The Affidavit of the Secretary did not refer to any publicconsultation or review after the LegCo election in September 1995. If

there had been any public consultation or review between September

1995 and the resumption of sovereignty, I would expect the Secretary to

have produced the same in accordance with the duty of candour

expounded by Ma CJHC (as the Chief Justice then was) in Chu Woan

Chyi v Director of Immigration [2009] 6 HKC 77 at paras 11 to 14, see


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also Inglory Ltd v The Director of Food and Environmental Hygiene

HCAL 87 of 2011, 24 May 2012 para 52.

50. I must therefore proceed on the basis that there was neitherpublic consultation nor review of the position during that period. The

Secretary has produced a memorandum of July 1997 prepared by the

Constitutional Affairs Bureau and the debate in the Provisional LegCo

regarding the Legislative Council Ordinance 1997. I shall come to these

materials later.

51. On 23 February 1997, the Standing Committee of the EighthNational Peoples Congress adopted the Decision on Treatment of the

Law previously in force in Hong Kong in accordance with Article 160 of

the Basic Law of Hong Kong. Paragraph 2 of the Decision reads,

Such of the ordinances and subordinate legislation previouslyin force in Hong Kong as set out in Annex 1 to this Decisionare in contravention of the Basic Law and are not adopted as

the laws of the Hong Kong Special Administrative Region.

52. The Electoral Provisions Ordinance and the LegislativeCouncil (Electoral Provisions) Ordinance were included in Annex 1.

They were therefore not adopted and ceased to be law after the

resumption of sovereignty and the establishment of the Hong Kong

Special Administrative Region with the coming into force of the Basic

Law.

53. It should be noted that there was no suggestion fromMr Thomas that the disqualification provisions in the Legislative Council

(Electoral Provisions) Ordinance were in any way in contravention of theBasic Law.


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54. It was therefore necessary for the local legislature to enactnew legislation to provide for the election for LegCo. That legislation

must comply with the Basic Law, including Articles 26, 39 and 68 of the

Basic Law.

55. The task fell upon the Provisional Legislative Council. InAugust 1997, the Government introduced the Legislative Council Bill

1997. The Impugned Provisions were introduced in that Bill.

56. Regarding the change from the pre-existing 3-monththreshold under the disqualification provision in the Legislative Council

(Electoral Provisions) Ordinance for those not yet served their prison

sentences to the absolute ban under the current Section 39(1)(b)(i), the

only explanation is to be found in the memorandum prepared by the then

Constitutional Affairs Bureau in July 1997 on Review of the Electoral

Provisions Ordinance.

57. In that memorandum, at p 6, the following was said withregard to the disqualification criterion under the old Section 19(1)(b) of

the Electoral Provisions Ordinance,

Under s 19(1)(b) of EPO, escaped convicts who have been

sentenced to death or more than 3-month imprisonment and

have not served the sentence or any substituted sentence or

received a free pardon shall be disqualified. The proposal nowis to tighten up the restriction by removing the 3-month

threshold for disqualification. This is because as a matter ofprinciple, we should not allow any escaped convict to hold a

LegCo office, no matter how light or serious his offence (andpunishment) is.

58. In the discussion with regard to disqualification provision forcandidates, this observation was adopted, see p 10 of the memorandum at


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para 12(e). The same applies to the observation with regard to the

disqualification provision for voters, see p 13 para 16(a).

59. With respect, as the facts of the present cases demonstrate,these comments distorted the effect of the old Section 19(1)(b) and the

current Section 39(1)(b)(i). The sub-section catches not only escaped

convicts, it also catches people like Mr Leung and Mr Wong who were

given bail pending their appeal against criminal convictions and

sentences. It is not correct to describe them as escaped convicts orfugitives. Though he has put it rather obliquely, this much is

acknowledged by the Secretary at para 32 of his Affidavit.

60. To that extent, the memorandum was regrettably misleading.The Secretary did not state in his Affidavit whether the memorandum had

been circulated to members of the Provisional LegCo. But this is the

evidence he produced as being the relevant material leading to the

enactment of the Legislative Council Ordinance 1997. Further, in a

House Committee Paper (PLC Paper No CB(2) 329, dealing with

proposals to amend the disqualification provisions in the Bill regarding

candidates as well as voters, the Administration opposed the proposals on

the ground that the provisions in the Bill are already less stringent than

those contained in the previous electoral legislation. Such stance could

not be sustained if members of the Provisional LegCo appreciated the

true impact of Section 39(1)(b)(i).

61. The debate at the Provisional LegCo showed that even themember who proposed the amendments to the Bill was misled as to the


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effect of this particular provision because he also described the subjects

of it as fugitives.

62. In so saying, I should not be taken as suggesting that theAdministration had deliberately misled members of the Provisional

LegCo. I do not say so. There is no evidence to suggest that to be the

case. Actually, reading the memorandum as a whole, the Administration

was trying to liberalize the restrictions in other respects, eg shortening the

disqualifying period under Section 39(1)(e) to 5 years as compared withthe previous period of 10 years under Section 21(1)(g) of the Legislative

Council (Electoral Provisions) Ordinance on the ground proportionality,

see p 7 under para 8(q), and p 11 para 12(k) and similar shortening from

10 years to 3 years with respect to disqualification for voters, see p 13

para 16(d).

63. The Administration set out a principle relevant for ourpurposes at para 11 of the memorandum,

As a matter of principle, the disqualification for

candidature/election should not be more restrictive than the

disqualification from holding office.

This would have a bearing in the consideration of the implications

flowing from Article 79(6) of the Basic Law.

64. Amendments proposed the Hon Mr Andrew Wong(including an amendment restoring the pre-existing position of confining

disqualification under Section 39(1)(b) to sentences for a term exceeding

3 months) was voted down and the Bill in the form as proposed by the

Administration was passed.


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65. In view of the evidence, I must reject Mr Thomassuggestion that the change in 1997 was due to the provision in

Article 79(6) of the Basic Law. Counsel proceeded on the basis that the

restriction for candidate should be more stringent than that for the

disqualification of member of the LegCo. The evidence shows that the

principle adopted was the other way round.

The nature of the right to stand for election

66. Like the right to vote, the right to stand for election is afundamental right. This is expressly recognized under Article 26 of the

Basic Law. These rights are crucial to establishing and maintaining the

foundations of an effective and meaningful democracy, seeZdanokapara

103. But they are not absolute. This is reflected in the European

jurisprudence on implied limitations and the cases on reasonable

restrictions under the ICCPR.

67. The European Court of Human Rights has repeatedlyemphasized on the latitude given to each State in setting the rules

governing eligibility to stand for election and the diversity of possible

approaches within the European Union. In respect of such right, it was

stressed at paras 103 and 106 in the judgment of Zdanoka,

There are numerous ways of organizing and running electoral

systems and a wealth of differences, inter alia, in historical

development, cultural diversity and political thought within

Europe, which it is for each Contracting State to mould into its

own democratic vision.

for the purposes of applying Article 3, any electorallegislation must be assessed in the light of the political

evolution of the country concerned


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To the same effect is the fourth proposition of Lord Collins in Barclayat

para 56 of that judgment quoted above.

68. In the present context, the constitutionality ofSection 39(1)(b) must be assessed against the legislative history discussed

at the preceding section and the overall political development in Hong

Kong. Overseas decisions on similar restriction, gearing towards political

and historical developments in those countries, would not be of much

assistance in deciding the proper balance to be struck in Hong Kong.

69. But overseas decisions can be useful in shedding light on thenature of restrictions which may be imposed. In that respect, Nowaks

CCPR Commentarypara 27 at p 578-9 provide a good summary,

With respect to the right to be elected, farther-reaching

restrictions are sometimes permissible. For instance, the

minimum age for holding office normally lies somewhat higherthan that for voting As a consequence of the higher

responsibility associated with election to a public office, certaingrounds for exclusion going beyond those on the right to vote

may also be considered reasonable in this regard. For instance,

one might imagine specific qualification requirements or the

exclusion of extremist parties and certain groups of persons,

such as priests, civil servants and military persons. In addition,

the observance of certain formal requirements for submitting a

nomination for election, such as payment of a fee or deposit or

presentation of a certain number of declarations of support,

could be a permissible restriction, so long as it is not excessiveor discriminatory. However, these restrictions must be

adequately justified.

70. Zdanoka was a case concerning the disqualification of aLatvian national from standing for election in the Latvian parliament as

persons who actively participated in certain political organizations which,

according to the judgment of the Latvian Constitutional Court, attempted

to re-establish the former regime through active participation and the


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overthrow of the existing State regime. The aim of the restrictions is to

protect he democratic State order, national security and territorial

integrity of Latvia. The ECHR found, in the circumstances of Latvia,

the restriction to be in accordance with Article 3.

71. In Touroon v Uruguay UN Doc CCPR/C/12/D/32/1978;IHRL 2783 (UNHRC 1981), the Human Rights Committee of the United

Nation recognized that legislations in many countries deprived criminal

offenders political rights, including the rights to stand for election. Onthe facts of the case, the Committee was of the opinion that the

deprivation of political rights for 15 years were not justified.

72. In General Comment 25 adopted by the UN Human RightsCommittee on 12 July 1996, the following comments were made

regarding reasonable restrictions that may be imposed on the right to

stand for election. At para15,

The effective implementation of the right and the opportunityto stand for elective office ensures that persons entitled to vote

have a free choice of candidates. Any restrictions on the rightto stand for election, such as minimum age, must be justifiable

on objective and reasonable criteria. Persons who are

otherwise eligible to stand for election should not be excluded

by unreasonable or discriminatory requirements such as

education, residence or descent, or by reason of political

affiliation. No person should suffer discrimination or

disadvantage of any kind because of that persons candidacy.

States parties should indicate and explain the legislative

provisions which exclude any group or category of persons

from elective office.

Para 16 dealt with nomination procedure and measures to avoid conflicts

between elective offices and holders of other specific positions (judges,

high-ranking military officers and public servants).

Para 17 continues,


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The right of persons to stand for election should not be limited

unreasonably by requiring candidates to be members of parties

or of specific parties. If a candidate is required to have a

minimum number of supporters for nomination this

requirement should be reasonable and not act as a barrier tocandidacy. political opinion may not be used as a ground to

deprive any person of the right to stand for election.

73. Drawing from these authorities, I can make the followingobservations which are relevant for present purposes,

(a) The permissible restrictions can go beyond mere procedural

regulations of the nomination process and disqualification

criteria based on certain attributes of a candidate may be

permissible;

(b) The restrictions have to be justified. They must be

reasonable, not excessive and non-discriminatory in addition

to being prescribed by law;

(c) Justification has to be considered against the historical and

political developments of the state or region in question.

Evidence as to objectives of the Impugned Provisions

74. In his Affidavit, the Secretary recognized that thecontemporaneous evidence of the legislative process pertaining to thepassing of the Legislative Council Ordinance by the Provisional LegCo is

limited. The Secretary then went on to set out what the current

Administration perceives as the important social and political objectives

served by the Impugned Provisions with regard to persons in similar

position to the Applicants, viz convicts sentenced to imprisonment but

released on bail pending appeal.


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75. Four objectives were identified by the Secretary,(a) Maintaining public confidence in the LegCo and ensuring its

proper operation;

(b) Maintaining public confidence in the electoral process;

(c) Ensuring fitness to serve as a member of the LegCo;

(d) Respect for the law and enhancing civic responsibility.

76.

These objectives were not mentioned in thecontemporaneous evidence. InLam Wo Lun v Director of Social Welfare

HCAL 133 of 2010, 14 May 2012, this Court considered how a court

should approach justifications advanced in judicial review proceedings

which had not been canvassed in the contemporaneous documents. At

para 49, after considering the relevant authorities, the following view was

expressed,

In principle, the submission of Lord Pannick must be correct.

When the court considers whether a policy is justified in the

wake of constitutional challenges, the issue is whether the

relevant constitutional rights have been violated. A policy may

be justified on its merits even though the way in which the

policy was explained during its introduction did not quite fit

into a structured analysis in terms of the justification test. At

the same time, the court will subject the reasons put forward as

justification to scrutiny as in the case of George Yao. If the

evidence of a witness is at odds with the justification previouslyput forward in contemporaneous document, the court willweigh the same with caution. But the court will not be pedantic

in the reading of the evidence and contemporaneous documentsshould not be read as if they were statutes.

77. On the facts of that case, this Court concluded that thereason advanced in the affidavit of the responsible officer had already

been canvassed in the contemporaneous documents. However, the

position is different in the present case. Not only were the stated


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objectives advanced by the Secretary not being mentioned in the

contemporaneous documents in 1997, a very different justification had

been put forward in 1997 in respect of the reduction of the threshold

period under Section 39(1)(b), viz the lack of justification for giving any

escaped convict the benefit of any threshold.

78. In my judgment, this must have a bearing on the weight tobe attached to the objectives now put forward in the Affidavit and the

standard of scrutiny to be applied by the court. Mr Thomas submittedthat the court should accord a high margin of appreciation to the

judgment of the LegCo. Several observations can be made in response to

this submission in the present context. First, as observed by Sir Anthony

Mason NPJ in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at

para 45,

The weight to be accorded to the legislative judgment bythe court will vary from case to case depending upon the natureof the problem, whether the executive and the legislature are

better equipped than the courts to understand its ramification

and the means of dealing with it. It is for the Court to

exercise its constitutional responsibility by determining the

issue, after giving appropriate respect to the legislativejudgment. At the end of the day, to repeat the words of Lord

Nicholls of Birkenhead inR v Johnstone [2003] 1 WLR 1736 atp.1750 F:

The court will reach a different conclusion from the

legislature only when it is a

HCAL51_2012 Right Vote

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