Members of a pro-Beijing taxi drivers union, assisted by a district councillor, are to file a judicial review seeking to disqualify pro-democracy legislative by-election winner Au Nok-hin.

Taxi Drivers and Operators Association Secretary General Wong Tai-hoi and Executive Member Leung Kwok-wai will file the legal challenge on Tuesday morning. They said Au had burned a copy of the Basic Law and supported self-determination for Hong Kong people – which Beijing has deemed as equal to advocating independence.

Au Nok-hin
Au Nok-hin. Photo: In-Media.

Wong and Leung had written to the election officer for Hong Kong Island Anne Teng and chair of the Electoral Affairs Commission Barnabas Fung earlier in March seeking to disqualify Au.

However, the requests were not responded to, according to pro-Beijing district councillor Wong Kwok-hing, who accompanied the pair at a press conference on Monday.

They said Au had violated a declaration in the electoral nomination form, as well as an additional confirmation form, in which he declared that he would uphold the Basic Law, according to pro-Beijing news site Orange News.

Au Nok-hin Judy Chan
Au Nok-hin Judy Chan.

“Au said he will burn the Basic Law again if necessary – it is clearly a violation of his constitutional duty, he may be disqualified even if he was elected,” Wong Kwok-hing said.

During the election race, Au admitted that he was photographed burning a prop of the city’s mini-constitution during a November 2016 protest against Beijing’s Basic Law interpretation on lawmakers’ oath-taking.

He beat pro-Beijing candidate Judy Chan during the by-election on Sunday and is scheduled to take his oath of office on March 21.

Wong Kwok-hing
Wong Kwok-hing. File photo: In-Media.

Wong Kwok-hing said the government did not handle complaints from residents in a timely manner, and time was short ahead of Au taking office. Thus, they have to file a judicial review quickly.

“The Electoral Affairs Commission did not perform its duties,” he said.

He added that the move was not only targeting Au, but the government’s mechanism for handling such complaints.

A spokesperson for the government said that as legal proceedings will soon commence, the government will not comment on the case.

“In fact, resolution of disputes arising from elections through judicial proceedings , including election petitions, is a common occurrence and an integral part of the electoral system in Hong Kong.”

“The HKSAR Government all along respects and safeguards the rights enjoyed by Hong Kong residents according to law, including the rights to vote and to stand for election. At the same time, to uphold the Basic Law and pledge allegiance to the HKSAR are ‘requirements to be complied with by persons nominated as candidates’ under the Legislative Council Ordinance.  ‘Independence of the HKSAR’, ‘self-determination’ or changing the HKSAR system by referendum which includes the choice of independence is inconsistent with the constitutional and legal status of the HKSAR as stipulated in the Basic Law, as well as the established basic policies of the People’s Republic of China regarding Hong Kong.”

“Upholding the Basic Law is a basic legal duty of a legislator. If a person advocates or promotes ‘independence of the HKSAR’ or ‘self-determination’, he or she cannot possibly uphold the Basic Law or fulfil his or her duties as a legislator, and cannot possibly comply with the requirement of the Legislative Council Ordinance that requires a candidate to make a declaration to uphold the Basic Law and pledge allegiance to the HKSAR.”

The by-election was triggered after four lawmakers were ousted by the High Court in 2016 following an interpretation of Article 104 of the Basic Law by Beijing. They were among six who faced legal action for inappropriately taking their oaths of office upon their election. Ex-lawmakers Leung Kwok-hung and Lau Siu-lai are still appealing their disqualifications. Democrats regained only two of the vacated seats on Sunday.

A full round-up of our by-election stories:

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Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.