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High Court confirms constitutionality of Nomination Requirement for 2023 District Council Ordinary Election (due to take place on 10 December 2023)

1 Dec 2023  |  Authors: Jenkin Suen, SC, Michael Lok

In Kwok Cheuk Kin v Chief Executive in Council, Secretary for Justice and Secretary for Constitutional and Mainland Affairs [2023] HKCFI 3074, the Applicant sought to challenge the constitutionality of the recent legislative amendments to the District Councils Ordinance Cap 547 (“DCO”), specifically as to the requirement that a person seeking nomination (in respect of the District Council geographical constituency) must obtain nomination from, inter alia, not less than 3, but not more than 6, members of each of the three District Committees (“3Cs”) in the District (“Nomination Requirement”).

The Applicant contends that the Nomination Requirement is incompatible with Article 26 of the Basic Law and Article 21 of the Hong Kong Bill of Rights.

After a rolled-up hearing taking place yesterday (on 30 November 2023), the Honourable Mr Justice Coleman delivered his Decision this afternoon, dismissing the application.

First, while accepting that there are doubts as to the Applicant’s standing and the substantial undue delay, his Lordship considered that the best overall course in the wider public interest is to deal with the challenge on its merits.  This would serve to provide legal certainty and would put the constitutional challenge to rest.

On the merits, the learned Judge held that the Nomination Requirement is constitutional and compatible with the Basic Law and the Hong Kong Bill of Rights.

Specifically, applying the well-known “4-step” proportionality analysis, held that (i) the Nomination Requirement pursues aims which are legitimate; (ii) the Nomination Requirement is rationally connected with the said aims (particularly in that the aims are logically furthered by the requirement); (iii) the Nomination Requirement is not manifestly without reasonable foundation (which is the appropriate standard bearing in mind the margin of appreciation to be accorded, but that a higher standard would not have yielded a different conclusion); and finally (iv) that a reasonable balance has been struck.

Jenkin Suen SCand Michael Lok, instructed by the Department of Justice, for the Chief Executive in Council (Putative Respondent), as well as the Secretary for Justice and the Secretary for Constitutional and Mainland Affairs (Putative Interested Parties).