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

A pro-establishment supporter’s judicial challenge on the validity of a newly elected pan-democratic lawmaker should be thrown out of court, Hong Kong’s secretary for justice and the lawmaker both argued on Wednesday, saying the applicant was using the wrong procedure.

Wong Tai-hoi, secretary general of the Taxi Drivers and Operators Association, lodged a judicial review application with the High Court to overturn Au Nok-hin’s candidacy days after the former Democratic Party member won a seat in the Legislative Council by-election on March 11.

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

Wong, a voter from Siu Sai Wan, argued that returning officer Anne Teng Yu-yan, who gave Au the green light to run in the by-election, was wrong. He asked the court to nullify Au’s oath as well as for the government to gazette a clarification that the pan-democrat should not have been validated as a candidate in the first place.

Wong argued in his judicial review application filed earlier that when Au took part in a rally organised by the Civil Human Rights Front on November 2, 2016, he burned a copy of the Basic Law. Au was protesting against Beijing’s interpretation of the Basic Law amid the oath-taking saga, which partly gave rise to the by-election following the disqualification of two pro-independence lawmakers, Yau Wai-ching and Sixtus Baggio Leung Chung-hang.

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The court paper cited another debate arranged by RTHK on March 7, in which it quoted Au as saying he would not mind doing it again in future protests if necessary.

Wong’s counsel Tim Wong explained during a leave application hearing on Wednesday that the judicial review was “properly instituted” because he could not ask for specific relief under an election petition and that it would be more efficient to deal with the case through the judicial review application that has already been filed.

But Au’s counsel, Paul Shieh Wing-tai SC, countered: “The applicant has used what is blatantly the wrong procedure and the application for leave should be rejected for this reason alone.”

Johnny Mok Shu-luen SC, for the returning officer, echoed that view.

“A challenge in the present case can only be brought by way of election petition … Judicial review is totally inappropriate,” he said.

Shieh and Mok said one can only challenge the validity of a nomination via an election petition lodged by a candidate or 10 voters, otherwise the applicant would be circumventing requirements under the Legislative Council Ordinance.

“It’s open for him to ask nine other electors to join hands,” Shieh said.

Given the available option, Mok said the court should not exercise its discretion to grant leave for judicial review.

Mr Justice Anderson Chow Ka-ming will hand down his decision on the leave application on Thursday.