C.Y.'s lawyers: review would not be legal
Lawyers for Chief Executive Leung Chun-ying and the government say the Court of First Instance has no power to hear a judicial review sought to unseat him over allegations that he lied about illegal structures at his Peak home.
Asking the court not to grant leave for two lawmakers to mount a review, lawyers for the Secretary for Justice said there were only three circumstances, under the Basic Law, in which a chief executive could be removed: if his term of office has expired, if he dies, or if the central government removes him 'in accordance with the law'.
Johnny Mok SC, for Leung, said it would be absurd if permission was granted for Democratic Party chairman Albert Ho Chun-yan - who came third in the vote won by Leung - and lawmaker 'Long Hair' Leung Kwok-hung to launch the reviews.
Mok also applied to strike out an election petition filed by Ho. The application will be heard on August 15.
The two pan-democratic lawmakers argue C. Y. Leung engaged in illegal conduct by allowing false and misleading statements he made a year before the election started to remain in the public sphere, creating a false impression of credibility.
They say the new leader, a chartered surveyor, told reporters in May last year that it had been confirmed by two lawyers and an architect that he had no illegal structures at his luxuryhome. But six illegal structures, including a glass enclosure and a wooden trellis, were later uncovered by the media.
This meant C. Y. Leung was not a 'person of integrity' - a requirement for a chief executive under article 47 of the city's mini-constitution.
Martin Lee Chu-ming SC, for Ho, said even though Leung might argue that he was not aware of the illegal structures at his home when he spoke to journalists, he could easily have retracted the statement later, but he did not do so.
Lee and Philip Dykes SC, for 'Long Hair', said Leung had taken advantage of a false statement to the detriment of his main opponent, Henry Tang Ying-yen, whose credibility was then in doubt over an illegal structure in the basement of his Kowloon Tong house.
But Mok said it would be absurd to allow the court to review a chief executive election result other than following a petition, as it would require the judge to rewrite the law.
He stressed that the statements in question were made before the election period began and that it would be a 'stretch of imagination' to link a statement made a year before the election to an attack on an opponent's integrity during the campaign.
Jin Pao, for the government, said a judicial review might be permitted where an election petition was not possible, for instance when there was only one candidate in the election, which did not apply in this case. A petition must be lodged by a person who participated in the election.
The judge questioned 'Long Hair's' qualifications for lodging his request and suggested that, if successful, it would mean anyone could mount such a challenge.
Dykes said his client was a member of the election committee that selected the chief executive and that he had been misled by Leung's alleged misstatement when deciding on his vote.
The hearing continues today.