Successful struck out election petition involving the first judicial interpretation of section 51 of District Councils Ordinance
In the case of Tung King Lei v Ng Ting Lam Kudama and Others (HCAL 254/2020) [2021] HKCFI 514, the Petitioner, Ms. Tung Kin Lei, the candidate of Tai Wai Constituency of Shatin District in the District Council election held on 24 November 2019, lodged an election petition against the 1st Respondent, Ms. Ng Ting Lam, the elected candidate of Tai Wai Constituency of Shatin District, on the grounds including corrupt and illegal conduct generally prevalent at the election and material irregularity at the polling and counting.
The election petition was also made against the 2nd Respondent, the chairman of the Incorporated Owners of an estate situated in Tai Wai Constituency and the 3rd Respondent, the Returning Officer of Tai Wai Constituency of Shatin District.
The 2nd Respondent brought a strike out application to dismiss the Petitioner’s election petition against him mainly on the ground that under s.51 of the District Councils Ordinance (DCO), the 2nd Respondent cannot be made respondent to an election petition.
Section 51 of DCO provides that ““Any person whose election is questioned by an election petition and the Returning Officer in respect of the election may be made a respondent to the petition.”
Counsel for the 2nd Respondent submitted that the Court should consider the context and purpose of s.51 DCO. Further submissions were made on the legislative history of s.51 DCO which traced back to s.113(2) of the Representation of the People Act 1949 under the English Law.
The Honourable Mr. Justice Yeung accepted the 2nd Respondent’s submissions and held that the proper construction of s.51 DCO should be only a candidate and the Returning Officer may be made a respondent to an election petition.
Costs was awarded to the 2nd Respondent with two certificates of Counsel as the present case was unprecedented and the strike out application involved important legal issue raised involving the legislative history of s.51 DCO.
Judgement can be found here: https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=133834&QS=%2B&TP=JU
