Hong Kong opposition activist Joshua Wong loses legal bid to overturn district council elections ban
- Wong was disqualified from running because the returning officer did not believe he had changed his stance on Hong Kong independence
- He had asked High Court to rule that he had fulfilled all requirements to run in November polls last year
In a 22-page judgment, Mr Justice Anderson Chow Ka-ming said Wong had picked the wrong legal tool to advance his arguments, stressing the city’s electoral laws only permitted challenges against a candidates’ disqualification by way of an election petition.
Wong expressed disappointment with the ruling, saying he believed it reflected the conservative leanings of Hong Kong’s judges.
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Joshua Wong reacts to his disqualification from running in upcoming Hong Kong elections
“An election petition, first and foremost, cannot settle disputes arising from returning officers’ abuse of their powers,” Wong said. “If [an application for] judicial review is not permitted, does that mean the present judicial regime turns a blind eye to returning officers abusing their immense powers? I am very concerned this would be the case.”
Wong said he had yet to decide whether to lodge an appeal, but hinted it would be difficult given the legal expenses entailed.
In his application for judicial review, Wong asked the court to rule that he had fulfilled the requirements to run in the November 24 polls by signing a declaration showing his intent to both uphold the Basic Law, and pledge allegiance to the Hong Kong Special Administrative Region.
He also requested that the court rule it unlawful for election officials to invalidate nominations on the basis of questioning a candidate’s intentions, sincerity or genuineness in signing such declarations.
At the centre of the legal battle was a procedural question of whether election hopefuls should be allowed to have their disqualifications overturned by way of judicial review, a procedure in which the High Court scrutinises the legitimacy of administrative body actions.
Three opposition hopefuls – former Demosisto member Agnes Chow Ting, protest organiser Ventus Lau Wing-hong and former lawmaker Lau Siu-lai – saw their barring from 2018 Legco by-elections overturned after filing election petitions.
But their court victories had the effect of invalidating the winning bids of three legislators, including two from the opposition camp, who had run for the seats in their absence.
Government lawyer Benjamin Yu SC argued Wong had taken the wrong step in launching the current proceedings. He cited Section 49 of the District Councils Ordinance, under which an election, including nomination proceedings and election officials’ decisions, could only be questioned via an election petition.
Yu suggested Wong had decided not to file an election petition to avoid unseating opposition councillor Kelvin Lam Ho-por, who won the South Horizons West Constituency seat after Wong was forced to drop out.
Wong’s lawyer, Margaret Ng Ngoi-yee, countered by saying the legal challenge was mounted in a bid to protect her client’s constitutional rights, as well as to seek the court’s clarifications on the criteria for nominations and election officials’ vetting powers.
In Wednesday’s ruling, Chow sided with Yu and rejected Ng’s argument that Wong’s rights had been infringed.
“It is clear that the applicant’s challenge to the returning officer’s decision that his nomination was invalid necessarily amounts to questioning an ‘election’ within the meaning of [the District Councils Ordinance],” the judge said.
“The fact that the applicant does not, for any reason, wish to disturb the successful election of Mr Kelvin Lam … is not, in my view, relevant to the question of whether his right of access to the courts … has been infringed.
“The applicant has adopted the wrong legal procedure to challenge the [returning officer’s] decision.”
Chow ordered Wong to bear the legal costs incurred by the Department of Justice in the proceedings.
