A resident in Hong Kong Island’s Eastern District – assisted by a pro-Beijing district councillor – has filed a judicial review challenge over incoming lawmaker’s Au Nok-hin’s candidacy. They say that Au was not eligible to run in the election due to his alleged promotion of self-determination and Hong Kong independence.

Au defeated the pro-Beijing New People’s Party’s Judy Chan in Sunday’s Legislative Council by-elections, which took place to fill four seats previously vacated in the oath-taking row. He is scheduled to take the oath on March 21.

Federation of Trade Unions district councillor Wong Kwok-hing told reporters outside the High Court on Tuesday that they are demanding a review of the election officer’s decision, claiming that the officer has failed to carry out his duties in allowing Au to run.

Au Nok-hin. Photo: Au Nok-hin via Facebook.

Wong also said that Au’s actions and statements – including burning a copy of the Basic Law and allegedly supporting Hong Kong independence – mean that he has violated the requirements in his election declaration and was therefore not eligible to stand in the by-election.

Wong said Au publicly sang the “national anthem recognised by independence advocates,” violating the election declaration he signed.

The song Wong was referring to, City State will emerge victorious, was a parody version of the pro-democracy song Democracy will emerge victorious. The song contains lyrics satirising Chin Wan, the founder of the Hong Kong City State theory, who has denied supporting independence.

The district councillor said that complaints were made to election officers before voting day on March 11, but they were ignored. They then made two complaints to Election Affairs Commission Chairman Barnabas Fung, who on March 10 said the matter will be dealt with on March 18. Wong added that they resorted to a judicial review because the government did not respond to or follow up on their complaints.

The resident, Wong Tai-hoi, is a businessman. He was listed as the secretary general of the pro-Beijing Taxi Drivers and Operators Association on Monday, but as of Tuesday his name had been removed from the website. Wong said that he will bear the legal fees himself.

Wong Kwok-hing. Photo: RTHK screenshot.

Challenges ‘part of election system’

On Tuesday morning, Chief Executive Carrie Lam said that she would not comment on the case as legal proceedings will be initiated over the matter.

“But everyone knows that in every election – during the election or after – people use legal proceedings, whether it’s a judicial review or election petition, to handle matters they believe are controversial with the election,” she said.

“This is part of our election system and happens from time to time, so we respect the legal challenge,” she said.

In a statement on Tuesday, Au addressed the pro-establishment camp’s move to lodge a judicial review. “When I was running for election, I already signed the declaration form to confirm that I respect the Basic Law. What I previously burned was a protest prop of [Basic Law] Annex III, in order to oppose the interpretation which destroys the requirements in Basic law Annex III.”

“I firmly believe that I meet the requirements for a legislator and will not let down the expectations of 130,000 voters to serve the public in the Legislative Council. I hope the pro-establishment camp will respect the outcome of the election and not destroy Hong Kong’s limited democratic institution.”

Alvin Yeung. File Photo: Handout.

Civic Party lawmaker and barrister Alvin Yeung told reporters on Tuesday: “Anybody could file a [judicial review] to the court, but whether the court will entertain you, that is another matter. As in the case of [Albert Ho] and Leung Chun-ying… back in 2012, the Court of Final Appeal has made it very clear that judicial review should be the last resort when it comes to election matters. If anybody is concerned or has any dispute regarding an election result, they could file an election petition instead.”

Yeung said that he understood that someone has filed a judicial review and another is seeking an injunction to prevent Au from taking his oath, but stated that the court declined to grant an injunction for the oath-taking even in the “relatively extreme” case of Youngspiration’s Baggio Leung and Yau Wai-ching back in 2016. “I could not see how on earth the court would grant an injunction to stop Au Nok-hin from taking an oath this time,” he said.

“[I] would remind those who are not happy with the election result to take time and to study the result, and try to do better next time. That applies to anybody, including the democrats,” he added.

Karen is a journalist and writer covering politics and legal affairs in Hong Kong for HKFP. She has also written features on human rights, public space, regional legal developments, social and grassroots activism, and arts & culture. She is a BA and LLB graduate from the University of Hong Kong.