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Legislative Council by-election 2018

Hong Kong court throws out voter’s challenge against new pan-democrat lawmaker Au Nok-hin

Pro-establishment supporter Wong Tai-hoi lodged judicial review application days after Au won a seat in the Legislative Council by-election claiming candidate failed to comply with law

PUBLISHED : Thursday, 29 March, 2018, 11:12am
UPDATED : Thursday, 29 March, 2018, 10:43pm

A Hong Kong court on Thursday threw out a “thoroughly ill-conceived” judicial review application lodged by a pro-establishment voter challenging the candidacy of newly elected pan-democratic lawmaker Au Nok-hin.

Mr Justice Anderson Chow Ka-ming ruled that leave for the legal bid should not be granted to Wong Tai-hoi, secretary general of the Taxi Drivers and Operators Association. The judge said there were other appropriate statutory actions available to Wong to challenge the decision of the returning officer to accept Au’s by-election nomination last month.

“It seems to me it is clear that … the proper procedure to redress the applicant’s complaint would be by way of an election petition,” Chow wrote in a 23-page judgment. “I consider that it is not open to the applicant to proceed by way of judicial review.”

The High Court judge, who called Wong’s bid “thoroughly ill-conceived”, also ordered him to bear the legal costs for Au and returning officer Anne Teng Yu-yan. It was Teng who gave Au the green light to run in the March 11 Legislative Council by-elections.

Au called on the pro-establishment camp to stop bringing trivial matters to court, arguing that another attempt to overturn election results through legal proceedings would indicate his rivals had the mentality of sore losers.

“They’ve already paid a rather high price,” Au said of Wong and former lawmaker Wong Kwok-hing, who helped him launch the challenge.

Hong Kong court urged to dismiss voter’s judicial review bid on pan-democrat’s election candidacy

But Wong Kwok-hing countered that the judge only said the application was procedurally inappropriate and did not touch on questions of Au’s conduct, which they had complained against.

“I would advise Au Nok-hin not to smile too early,” the former unionist lawmaker said.

Wong Tai-hoi lodged the judicial review application days after Au won a seat in the by-election with 137,181 votes in the Hong Kong Island constituency.

I would advise Au Nok-hin not to smile too early
Wong Kwok-hing, former unionist lawmaker

The voter from Siu Sai Wan argued that the returning officer had no power to make her decision as Au did not meet nomination requirements under the Legislative Council Ordinance and the Basic Law, the city’s mini-constitution.

He said Au’s burning of a copy of the Basic Law during a rally in 2016 reflected an “important symbolic act of defiance” that was impossible to ignore given his subsequent statement saying he would not mind doing it again if necessary.

But in his submission, Au’s counsel Paul Shieh Wing-tai SC said Wong Tai-hoi had other alternatives such as an election petition and disqualification proceedings. Teng’s counsel Johnny Mok Shu-luen SC argued that Wong had no standing to challenge by way of judicial review.

Both arguments were accepted by the judge, who said he was unable to see how it could be argued that the returning officer had no power to validate Au’s nomination.

However, the judge did not reach any conclusion on questions about the validity of Au’s nomination, or whether there were any good or sufficient grounds to challenge his qualifications to act as a lawmaker.

Under the Legislative Council Ordinance, an election petition may be lodged by 10 or more voters, or by a person claiming to have been a candidate in the election, for the court to determine if the nomination is correct.