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Legislative Council by-election 2018

No interim ban against Hong Kong by-election winner being sworn in

Hearing on challenge against lawmaker-elect Au Nok-hin raises curtain on series of court actions expected in wake of Sunday's parliamentary poll

PUBLISHED : Friday, 16 March, 2018, 3:13pm
UPDATED : Friday, 16 March, 2018, 3:13pm

A pro-Beijing voter who is challenging the candidacy of a pan-democratic winner in the recent parliamentary poll has given up on seeking a temporary ban against the lawmaker-elect being sworn in next week, a court heard on Friday.

Earlier this week, merchant Wong Tai-ho, 47, lodged a judicial review to overturn lawmaker-elect Au Nok-hin’s candidacy, days after the Democratic Party member won a seat in the Legislative Council by-election on Sunday.

Wong argued that returning officer Anne Teng Yu-yan, who gave Au the green light, was wrong to let him run, and also sought an interim order stopping Au from taking office until the end of the legal action.

In addition, Wong asked that the election result not be gazetted for now.

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But at a preliminary proceeding on Friday, High Court judge Mr Justice Anderson Chow Ka-ming pointed out to Wong’s counsel, Tim Wong, that the election results had already been put in the government’s book on Friday morning.

“If that is the case, although the application was seeking an interim injunction … the applicant may seek a mandatory injunction to that effect,” the lawyer said, meaning that his client would focus on the ultimate ban should he win the case in the end.

Au, who contested in the Hong Kong Island constituency, bagged 137,181 votes to beat the New People’s Party’s Judy Chan Ka-pui, who got 127,634.

According to court documents, Wong Tai-ho claimed Au was “ineligible” and “disqualified” from being an election candidate due to his failure to comply with certain provisions of the Legislative Council Ordinance and the Basic Law, the city’s mini-constitution.

The papers said that on November 2, 2016, Au took part in a rally organised by the Civil Human Rights Front, during which he burned a copy of the Basic Law. He was protesting against Beijing’s interpretation of the mini-constitution amid the Legco oath-taking saga, which partly gave rise to Sunday’s by-election following the disqualification of two pro-independence lawmakers, Yau Wai-ching and Sixtus Baggio Leung Chung-hang.

Wong argued this indicated that Au did not intend to uphold the Basic Law despite signing a declaration form to that effect as the law required.

The court heard on Friday that whether Au had burned an actual copy or a prop would be a subject of dispute during the hearing to be held on March 28. But Wong’s counsel said that even if it was a prop, they would argue Au’s move was a symbolic gesture indicating he would not uphold the Basic Law.

The court documents went on to cite a debate arranged by RTHK on March 7, quoting Au as saying he would not mind repeating the act in future protests if necessary. Wong argued that the statement rendered Au’s pledge false and not genuine.

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Wong said the returning officer, Teng, had no power to declare Au’s candidacy valid because Au had not complied with the statutory and constitutional requirements.

In a separate judicial review lodged on Wednesday, former civil servant Kwok Cheuk-kin challenged Vincent Cheng Wing-shun, the candidate from the pro-Beijing Democratic Alliance for the Betterment and Progress of Hong Kong party who won a seat in the Kowloon West constituency.

Agnes Chow Ting, Occupy student leader Joshua Wong Chi-fung’s comrade-in-arms from political party Demosisto, had also hinted she would file an election petition after being barred by a returning officer from running in the by-election.