ELECTORAL PROVISIONS (ELECTION PETITIONS) RULE

ELECTORAL PROVISIONS (ELECTION PETITIONS) RULE

ELECTORAL PROVISIONS (ELECTION PETITIONS) RULES

ARRANGEMENT OF RULES

Rule Page

1 ......................................... ... ... ... ... ... ... ... C 2
2........Interpretation ................... ... ... ... ... ... ... ... ... ... ... C


3...................General practice and procedure ... ... ... ... ... ... ... ... ... ... C 2

4...............Filing of documents .......... ... ... ... ... ... ... ... ... ... ... C 2

5.....................Form and substance of petitions ... ... ... ... ... ... ... ... ... C 2

6. Copy of petition and a notice to be served on respondent and Attorney General C 2

7............................Manner of application for directions as to security ... ... ... ... ... ... C 3

8................................Affidavit of service to be filed and served on respondents ... ... ... ... C 3

9.......................Grounds of objection to recognizance ... ... ... ... ... ... ... ... C 3

10....................Time and place for trial of petition ... ... ... ... ... ... . ... ... C 3

11............Trial of petition .............. ... ... ... ... ... ... ... ... ... ... C 4

12.........................Lists of objections, etc., to be filed before trial ... ... ... ... ... ... ... C 4
13.........................Application for leave to withdraw petition ... ... ... ... ... ... ... C 5
14.........................Evidence required for withdrawal of petition ... ... ... ... ... ... ... C 5

Is......................Application to stay or dismiss petition ... ... ... ... ... ... ... ... C 6

16..................Notice of abatement of petition ... ... ... ... ... ... ... ... ... ... C 6

17......................Notification of death, etc. of respondent ... ... ... ... ... ... ... ... C 6

18................Filing copy of particulars .. ; ... ... ... ... ... ... ... ... ... C 6

19...............................Notification of respondent's solicitor and service of notices ... ... ... ... C 7

20............Witness' expenses .............. ... ... ... ... ... ... ... ... ... ... C 7
21............Costs of petition .............. ... ... ... ... ... ... ... ... ... ... C 7

22................Forfeiture of recognizance ... ... ... ... ... ... ... ... ... ... ... C 8

Schedule........................................ ... ... ... ... ... ... ... ... C 8





ELECTORAL PROVISIONS (ELECTION
PETITIONS) RULES

(Cap. 367, section 34(3))

[15 January 1982.1

1. These rules may be cited as the Electoral Provisions (Election
Petitions) Rules.

2. In these rules 'petition' means an election petition.

3. Subject to Part VI of the Ordinance and to these rules, the
practice and procedure of the Supreme Court, including the rules relating
to the discovery and inspection of documents and the delivery of
interrogatories, shall apply to a petition as if it were an or dinary action
within its jurisdiction.

4. Any document required to be filed in proceedings on any
petition shall be filed in the Registry of the Supreme Court.

5. A petition shall be in the form set out in the Schedule, or a form
to the like effect with such variations as the circumstances may require,
and shall state

(a)in which of the capacities mentioned in section 31 of the
Ordinance the petitioner or each of the petitioners presents
the petition;

(b)the date and result of the election to which the petition relates,
showing

(i) in the case of an election which was not contested, the
date of the. publication by the returning officer of the list of
persons declared to be elected; and

(ii) in the case of a contested election, the date of the
declaration by the returning officer of the result of the
election; and

(c)the grounds on which relief is sought, setting out with
sufficient particularity the facts relied on but not the evidence
by which they are to be proved,

and shall conclude with a prayer setting out particulars of the relief
claimed.

6. (1) Within 2 days after the presentation of the petition under
section 33 of the Ordinance or such other period as the Court may
direct, the petitioner shall serve on the respondent within the meaning
of section 32(1) of the Ordinance and on the Attorney General a notice
of the presentation of the petition and of the nature of the security for
costs which the petitioner proposes to give pursuant to section 36 of
the Ordinance, together with a copy of the petition.





(2) Service shall be effected in the manner in which a writ of
summons is served and an affidavit of service shall be filed as soon as
practicable after service has been effected.

7. (1) Application to the Court for directions under section 36(2) of
the Ordinance as to the amount and the manner and form of security
shall be made by the petitioner by summons to a judge in chambers.

(2) The copy of the summons which it is desired should be issued
for directions aforesaid shall be filed within 2 days after the
presentation of the petition or such other period as the Court may
direct, and the Registrar shall thereupon forthwith issue the summons.

(3) Where the amount of the security for costs which the petitioner
proposes to give is the maximum which may be directed under section
36 of the Ordinance and the petitioner proposes to give such security
by the deposit of money to the extent of that amount, the application to
fix the security at that amount and for a direction that the security shall
be given by deposit as aforesaid may be made ex parte by summons,
but in such a case the Registrar shall by endorsement on the summons
order the petitioner to appear at the time and place directed by the
Registrar, being not later than 5 days after the presentation of the
petition; in all other cases the application for directions shall be made
inter partes by summons the return-day of which shall not be later than
5 days after the presentation of the petition or the expiration of such
other period as the Court may direct for giving security under section
36(1) of the Ordinance.

8. Where it is proposed to give security under section 36 of the
Ordinance wholly or partly by recognizance entered into by a surety or
sureties, the petitioner shall, together with the copy of the summons
referred to in rule 7(2), file an affidavit sworn by each proposed surety
and stating that after payment of all his debts he is worth a sum not less
than the sum to be specified in the affidavit being the sum for which it is
proposed that he should be bound by a recognizance, and the petitioner
shall forthwith serve or cause to be served on the respondent a copy of
the affidavit together with the summons issued pursuant to rule 7(2).

9. The respondent to a petition at the hearing of the summons for
directions under rule 7 may object to any recognizance on the grounds
that any surety is insufficient or is dead or cannot be found or
ascertained for want of a sufficient description in the copy of the
affidavit of the surety served on him pursuant to rule 8 or in the notice
served on him under rule 6.

10. (1) Within 28 days after the day on which security is given by
the petitioner in accordance with section 36 of the Ordinance and these
rules, the petitioner shall apply by summons to a judge for a





time and place to be fixed for the trial of the petition and, if the
petitioner fails to do so, any respondent may, within a further period
of 28 days, apply in the same manner as the petitioner could have
done.

(2) If no application to fix the time and place for the trial of
the petition is made in accordance with paragraph (1), the Registrar
shall refer the matter to a judge, who shall thereupon fix such a time
and place.

(3) Not less than 7 days before the day so fixed the Registrar
shall cause notice of the time and place of the trial to be displayed in
a conspicuous place in the Supreme Court and sent to-

(a) the petitioner;

(b) the respondent;

(e) the Attorney General; and

(d) the Designated Officer.

(4) The Designated Officer shall, forthwith upon receipt of
such notice, cause it to be displayed in the same manner as provided
under section 33(2) of the Ordinance for a copy of a petition.

11. (1) The trial of a petition shall be proceeded with not-
withstanding that the respondent has ceased to hold the office his
election to which is questioned by the petition.

(2) On the trial of a petition, unless the Court otherwise
directs, any charge of a corrupt or illegal practice may be gone into,
and evidence in relation thereto received, before any proof has been
given of agency on behalf of any candidate in respect of the corrupt
or illegal practice.

(3) On the trial of a petition complaining of an undue election
.and claiming the office for some person, the respondent, subject to
rule 12(4), may give evidence to prove that that person was not duly
elected, in the same manner as if he had presented a petition against
the election of that person.

12. (1) Where the respondent to a petition complaining of an
undue election and claiming the office for some other person intends
to give evidence pursuant to rule 11 (3) to prove that that person was
not duly elected, the respondent shall, not less than 7 days before the
day fixed for the trial of the petition, file a list of his objections to the
election of that person on which he intends to rely and serve a copy
of the list on the petitioner and the Attorney General.

(2) Where the petition claims the office for an unsuccessful
candidate on the ground that he had a majority of lawful votes,
every party shall, not less than 7 days before the date fixed for the
trial, file a list of the votes which he contends were wrongly admitted
,or wrongly rejected, stating in respect of each such vote the grounds





for his contention, and serve a copy of the list on every other party and
the Attorney General.

(3) Any party to a petition may inspect and obtain an office copy
of any list filed pursuant to paragraph (1) or (2).

(4) Except by leave of the Court-

(a)no evidence shall be given by a respondent of any objection
to a person's election which is not specified in a list filed by
him pursuant to paragraph (1); and

(b)no evidence shall be given by a party against the admission
or rejection of any vote, or as to any ground of contention,
which is not specified in a list filed by him pursuant to
paragraph (2).

13. (1) An application for leave to withdraw or abandon or cease to
prosecute a petition shall be made by motion to the Court at such time
and place as the Court may appoint.

(2) Not less than 7 days before the day so appointed the applicant
shall

(a)serve notice of motion on the respondent, the Attorney
General and the Designated Officer, and lodge a copy with the
Registrar;

(b)publish notice of the intended motion in at least two
newspapers circulating in the Hong Kong, one being
published in English and one being published in the Chinese
language.

(3) The notice of motion shall state the grounds on which the
application is made to withdraw or abandon or cease to prosecute the
petition, and shall contain a statement to the effect that on the hearing
of the application any person who might have been a petitioner in
respect of the election or the Attorney General may apply to the Court
to be substituted as a petitioner.

(4) The Designated Officer shall, forthwith upon receipt of the
notice under paragraph (2), cause it to be displayed in the same manner
as provided under section 33(2) of the Ordinance for a copy of a
petition.

14. (1) Before leave to withdraw or abandon or cease to prosecute
an election petition is granted, there shall be produced affidavits by all
the parties to the petition and their solicitors (if any) and by the election
agents (if any) of all the said parties who were candidates at the
election, but the Court may on cause shown dispense with the affidavit
of any particular person if it seems to the Court on special grounds to
be just so to do.

(2) Each affidavit shall state that, to the best of the deponent's
knowledge and belief, no agreement or terms of any kind whatso





ever has or have been made, and no undertaking has been entered into,
in relation to withdrawing or abandoning or ceasing to prosecute the
petition; but if any lawful agreement has been made with respect to
withdrawing or abandoning or ceasing to prosecute the petition, the
affidavit shall set forth that agreement and shall make the foregoing
statement subject to what appears from the affidavit.

(3) The affidavits of the applicant and his solicitor (if any) shall
further state ground on which the petition is sought to be withdrawn or
abandoned or no longer prosecuted.

(4) Copies of the said affidavit shall be delivered to the Attorney
General not less than 7 days before the day appointed for the hearing of
the application for leave to withdraw-or abandon or cease to prosecute
the petition, and the Court may hear the Attorney General or his
representative in opposition to the application for leave to withdraw or
abandon or cease to prosecute the petition, and shall have power to
receive the evidence on oath of any person or persons whose evidence
the Attorney General or his representative may consider material.

(5) Where more than one solicitor is concerned for the petitioner or
respondent,- whether as agent for another solicitor or otherwise, the
affidavit shall be made by all such solicitors.

15. (1) An application by a respondent to stay or dismiss a petition
before the day fixed for the trial shall be made by motion to the Court at
such time and place as the Court may appoint.

(2) Not less than 7 days before the day so appointed the
respondent shall serve notice of motion, stating the grounds thereof, on
the petitioner, any other respondent, the Attorney General and the
Designated Officer, and shall lodge a copy with the Registrar.

16. Where the petition is abated by the death of a sole petitioner or
the survivor of several petitioners, the solicitor acting for him in the
proceedings at the date of his death or, if he had no such solicitor, any
respondent learning of his death shall lodge notice thereof with the
Registrar.

17. On the happening of any event mentioned in section 40(1)(a) of
the Ordinance, the respondent concerned or, in the case of the death of
a respondent, the solicitor acting for him in the proceedings at the date
of his death or, if he had no such solicitor, any petitioner learning of his
death shall lodge notice thereof with the Registrar.

18. A party giving particulars in pursuance of an order or otherwise
shall file a copy within 24 hours after delivering the particulars to the
party requiring them.





19. (1) A solicitor appointed to act for a respondent in proceedings
on a petition shall forthwith give notice of his appointment to the
petitioner and lodge a copy of the notice with the Registrar.

(2) Subject to rule 6(2), any notice required to be served on a
respondent to a petition may be served

(a)by delivering it or sending it by post to any solicitor who has
given notice under paragraph (1) that he is acting for the
respondent; or

(b)if no such notice has been given, by delivering it to the
respondent or by leaving it at, or sending it by post by a
registered letter to his last known place of abode in Hong
Kong, or, if the proceeding is before the Court, in such manner
as the Court may direct.

(3) Subject to rule 6(2), any notice required to be served on the
Attorney General or the Designated Officer in proceedings on any
petition may be served by delivering it or sending it by post to him.

20. The reasonable expenses incurred by any person in appearing
to give evidence at the trial of a petition, equal to such sum of money as
would be allowed to such person under section 52 of the Supreme Court
Ordinance if he were a witness in any civil proceeding, may be allowed
to him by a certificate of the Court or of the Registrar, and shall be
deemed costs of the petition.

211. (1) All costs of any incidental to the presentation of a petition
and the proceedings consequent thereon, except such as are under
paragraph (2) otherwise provided for, shall be defrayed by the parties to
the petition in such manner and in such proportions as the Court may
determine; and in particular any costs which in the opinion of the Court
have been caused by vexatious conduct, unfounded allegations or
unfounded objections on the part either of the petitioner or of the
respondent, and any needless expense incurred or caused on the part of
the petitioner or respondent, may be ordered to be defrayed by the
parties by whom it has been incurred or caused whether or not they are
on the whole successful.

(2) Where upon the trial of a petition it appears to the Court that a
corrupt practice has not been proved to have been committed in
reference to the election by or with the knowledge and consent of the
respondent to the petition, and that the respondent took all reasonable
means to prevent corrupt practices being committed on his behalf, but
that any person or persons is or are proved, whether by providing
money or otherwise, to have been extensively engaged in corrupt
practices, or to have encouraged or promoted extensive corrupt
practices, in reference to the election, the Court may, after giving that
person or those persons an opportunity of being heard by counsel or
solicitor and examining and cross-examining witnesses to show cause
why the order should not be made, order the whole or part of the costs
to be paid by that person or those persons or any of





them, and may order that if the costs cannot be recovered from one or
more of those persons they shall be paid by some other of those
persons or by either of the parties to the petition.

22. If a petitioner neglects or refuses for 3 months after demand to
pay to any person summoned as a witness on his behalf or to the
respondent any sum due to him or his costs, and the neglect or refusal
is, within 1 year after the demand, proved to the satisfaction of the
Court, every person who under these rules entered into a recognizance
relating to the petition shall be held to have made default in the
recognizance, and the Court shall thereupon certify the recognizance to
be forfeited.

SCHEDULE

ELECTION
PETITION

IN THE SUPREME COURT OF HONG KONG
ORIGINAL JURISDICTION

In the Matter of the Electoral Provisions Ordinance (Chapter 367)
and

In the Matter of *an Urban Council/a District Board Election for the [state
constituency) held on the day of ,19

The Petition of A.B. of
[and C.D. of

shows-

1 That the Petitioner A.B. is a person who had a right to vote at the above
election [or was a candidate at the above election] and the Petitioner C.D. [state
similarly the capacity in which he presents the petition].

2. That the election was held on the day of

19 when E.F., G.H., and J.K. were candidates, and on the day
of ' 19, the result of the election was declared by the

Returning Officer wherein E.F., and G.H. were declared to be duly elected [or,
in the case of an election which was not contested, and on the day of

' 19 the list of persons declared to be elected was published
by the Returning Officer, wherein was included the names of E.F., G.H., and LK.I.

3. That [state the facts on which the petitioner (s) *relies/rely].

The Petitioner(s) therefore pray(s)-

(1)that it may be determined that the said E.F. was not duly elected and that
the election was void [or that the said LK. was duly elected and ought to
have been declared elected].

(2) that the Petitioner(s) may have such further or other relief as maybe just.

Dated this day of '19

(Signed)
Petitioner(s).

This Petition is presented by whose address for service is [and who is agent for

of solicitor for the said






Petitioner].

It is proposed to serve a copy of this petition on
of
[and of
and on the Attorney General.

(Note.. * delete if not applicable).
L.N. 9/82. Citation. Interpretation. General practice and procedure. Filing of documents. Form and substance of petitions. Schedule. Copy of petition and a notice to be served on respondent and Attorney General. Manner of application for directions as to security. Affidavit of service to be filed and served on respondents. Grounds of objection to recognizance. Time and place for trial of petition. Trial of petition. Lists of objections, etc., to be filed before trial. Application for leave to withdraw petition. Evidence required for withdrawal of petition. Application to stay or dismiss petition. Notice of abatement of petition. Notification of death, etc. of respondent. Filing copy of particulars. Notification of respondent's solicitor and service of notices. Witness' expenses. (Cap. 4.) Costs of petition. Forfeiture of recognizance.

L.N. 9/82. Citation. Interpretation. General practice and procedure. Filing of documents. Form and substance of petitions. Schedule. Copy of petition and a notice to be served on respondent and Attorney General. Manner of application for directions as to security. Affidavit of service to be filed and served on respondents. Grounds of objection to recognizance. Time and place for trial of petition. Trial of petition. Lists of objections, etc., to be filed before trial. Application for leave to withdraw petition. Evidence required for withdrawal of petition. Application to stay or dismiss petition. Notice of abatement of petition. Notification of death, etc. of respondent. Filing copy of particulars. Notification of respondent's solicitor and service of notices. Witness' expenses. (Cap. 4.) Costs of petition. Forfeiture of recognizance.

https://oelawhk.lib.hku.hk/items/show/3363

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