LEGISLATIVE COUNCIL (ELECTORAL PROVISIONS) (ELECTORAL PROVISIONS) (ELECTION PETITION) RULES

LEGISLATIVE COUNCIL (ELECTORAL PROVISIONS) (ELECTORAL PROVISIONS) (ELECTION PETITION) RULES

LEGISLATIVE COUNCIL (ELECTORAL PROVISIONS)
(ELECTION PETITION) RULES

ARRANGEMENT OF RULES

Rule
Pag


1. Citation . ... ... ... ... ... ... ... ... ... ... ... ... ... ... C2
2. Interpretation ... ... ... ... ... ... ... ... ... ... ... ... ... ... C2
3. General practice and procedure ... ... ... ... ... ... ... ... ... ... ... C2
4. Filing of document ... ... ... ... ... ... ... . ... ... ... ... ... ... C2
5. Form and substance of petitions ... ... .. ... ... ... ... ... ... ... C2
6. Signature and presentation of petition ... ... ... ... ... ... ... ... ... C3
7. Notice of presentation of petition ... ... ... ... ... ... ... ... ... ... C3
8. Manner of application for chambers .... ... ... ... ... ... ... ... ... ... C3
9. Affidavit of proposed surety to be filed and served on respondents ... ... ...
C4
10. Grounds of objection to recognizance ... ... ... ... ... ... ... ... C4
11. Time and place for trial of petition ... ... ... ... ... ... ... ... ... ... C4
12. Trial of petition ... ... ... ... ... ... ... ... ... ... ... ... ... ... C5
13. Lists of objections. in recriminatory case ... ... ... ... ... ... ... ... ... C5
14. Application for leave to withdraw petition ... ... ... ... ... ... ... ... C6
15. Evidence required for withdrawal of petition ... ... ... ... ... ... ... ... C6
16. Application to stay or dismiss petition ... ... ... ... ... ... ... ... ... C7
17. Notice of abatement of petition ... ... ... ... - ... ... ... ... ... ... C7
is. Notification of death, etc. of respondent ... ... - ... ... ... ... ... ... C7
19. Filing copy of particulars ... ... ... ... ... ... ... ... ... ... ... ... C7
20. Notification of respondent's solicitor and service of notices ... ... ... ... ... C8
21. Witness' expenses ... ... ... ... ... ... ... ... ... ... ... ... ... ... C8
22. Costs of petition ... ... ... ... ... ... ... ... ... ... ... ... ... ... C8
23. Forfeiture of recognizance .. ... ... ... ... ... ... ... ... ... C

Schedule ....................................... ... ... ... ... C9





LEGISLATIVE COUNCIL (ELECTORAL PROVISIONS)
(ELECTION PETITION) RULES

(Cap. 381, section 32(3))

[16 August 1985.]

1. These rules may be cited as the Legislative Council (Electoral
Provisions) (Election Petition) Rules.

2. In these rules, unless the context otherwise requires-

'petition' means an election petition presented under Part VII of the
Ordinance;

'respondent' means a respondent within the meaning of section 31 of
the Ordinance.

3. Subject to Part VII 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 nearly as circumstances admit
as it were an ordinary action within its jurisdiction.

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

(2) The Supreme Court Fees Rules shall apply in respect of all
proceedings relating to election petitions subject to necessary
modifications.

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 30 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 relief claimed.

6. (1) A petition shall be signed by the petitioner or by each
petitioner if there is more than one and shall be presented to the Court
by leaving the petition, together with 2 copies thereof, with the
Registrar who shall give a receipt therefor, if required so to do.

(2) Where a petition relates to an election to a functional
constituency, and the petitioner, or where there is more than one
petitioner, one or more of the petitioners, is a person other than an
individual, the petition shall be signed on behalf of the petitioner or
each such petitioner by a representative authorized for that purpose.

(3) The Registrar shall, forthwith on presentation of the petition

(a)send a certified true copy thereof to the Chief Secretary, who
shall forthwith upon receipt thereof cause that copy to be
displayed in some conspicuous place on or near the outer
door of the Legislative Council Chamber;

(b)cause a certified true copy thereof to be displayed on a
conspicuous place in the Supreme Court; and

(c)cause a notice which shall state that such a petition has been
presented and specify the parties thereto, to be published in
the Gazette.

(4) The Registrar shall cause a list of the election petitions to be
displayed on a conspicuous place in the Supreme Court.

7. (1) The petitioner shall, within 2 days of the presentation of the
petition or such other period as the Court may direct, serve on the
respondent and the Attorney General, notice of the presentation of the
petition and the nature of the security for costs which the petitioner
proposes to give pursuant to section 34 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
possible after service has been effected.

8. (1) Application to the Court for directions under section 34(2) of
the Ordinance, shall be made by the petitioner by summons to a judge
in chambers, at the time of presenting the petition, or within 2 days
thereafter or such other period as the Court may direct.

(2) The summons under paragraph (1) shall be issued by the
Registrar forthwith upon being filed.

(3)(a) Subject to sub-paragraph (b) all applications under
paragraph (1), shall be made inter partes by summons, the
return day of which shall be not 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 34(1) of the Ordinance;

(b)where the petitioner proposes to give the maximum amount, of
security that may be directed under section 34(2) of the
Ordinance, and proposes to give such amount by the deposit
of money to that extent, an application for directions that the
security be given in such maximum amount and by the deposit
of money, may be made ex parte by summons, and 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.

9. (1) Where the petitioner proposes to give security under section
34 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 issued under rule 8(1), file an affidavit sworn by the surety or
each proposed surety, which shall specify the sum in which it is
proposed the surety should be bound by a recognizance and shall state
that after payment of all his debts the surety is worth a sum not less
than the sum so specified.

(2) The petitioner shall forthwith serve or cause to be served on the
respondent the summons under rule 8(1) and a copy of the affidavit filed
pursuant to paragraph (1).

10. (1) The respondent to a petition may, at the hearing ofthe
summons issued under rule 8(1), object to any recognizance on the
grounds that any surety is insufficient or is dead, or cannot be found, or
cannot be ascertained for want of a sufficient description in the notice
served under rule 7 or in the copy of the affidavit served pursuant to
rule 9.

(2) The Court may, at any time during the hearing of an election
petition, increase the amount of security ordered on an application
under rule 8(1), subject to the maximum amount specified in section 34
of the Ordinance and give directions as to the manner and form of
giving such increased security.

11. (1) The petitioner shall, within 28 days of giving security in
accordance with section 34 of the Ordinance and these rules, apply by
summons to ajudge for a time and place to be fixed for the trial of the
petition.

(2) If the petitioner fails to make an application under paragraph (1)
within the time period specified under that paragraph, any respondent
may, within 7 days of the expiration of such time period, apply to a judge
in the same manner as specified in paragraph (1) for a time and place to
be fixed for the trial of the petition.

(3) If no application to fix the time and place for the trial of the
petition is made in accordance with paragraph (1) or (2), the





Registrar shall refer the matter to a judge, who shall thereupon fix
such a time and place.

(4) 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;

(c) the Attorney General; and

(d) the Chief Secretary.

(5) The Chief Secretary shall, forthwith upon receipt of such
notice, cause it to be displayed in the same manner as provided under
rule 6(3)(a) in respect of a copy of a petition.

12. (1) The trial of a petition shall be proceeded with
notwithstanding that the respondent has ceased to hold the office hi&
election to which is questioned by the petition.

(2) Where more petitions than one are presented relating to the
same election, the Court may, upon its own motion or application by a
party to any such election petition, order those petitions to be
consolidated on such terms as it thinks fit or order er them to be tried at
the same time or one immediately after another.

(3) On the trial of a petition, unless the Court otherwise directs, any
charge of a corrupt or illegal practice may be inquired 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.

(4) On the trial of a petition complaining of an undue election and
claiming the office for some person, the respondent, subject to rule
13(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.

13. (1) Where on the trial of a petition complaining of an undue
election and claiming the office for some other person, the respondent
intends to give evidence pursuant to rule 12(4) 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, and upon such terms as the Court
may order, no evidence shall be given

(a)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);
or

(b)by a par 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).

14. (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 Chief Secretary, and lodge a copy with the
Registrar;

(b)publish notice of the intended motion in at least two
newspapers circulating in 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 Chief Secretary shall, forthwith upon receipt of the notice
under paragraph (2), cause it to be displayed in the same manner as
provided under rule 6(3)(a) for a copy of petition.

15. (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 whatsoever
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 the ground or grounds 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.

16. (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
Chief Secretary, and-shall lodge a copy with the Registrar.

17. 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.

18. On the happening of any event mentioned in section 38(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.

19. 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.





20. (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 7(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 7(2), any notice required to be served on the
Attorney General or the Chief Secretary in proceedings on any petition
may be served by delivering it or sending it by post to him.

21. 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.

22. (1) All costs of or 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 the petitioner or petitioners or the respondent or
respondents.

23. 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 [r. 5.]

ELECTION PETITION

IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION

In the Matter of the Legislative Council (Electoral Provisions) Ordinance
(No. 13 of 1985)

and

In the Matter of Legislative Council Election for the [stale 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 JK. 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 JK.].

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


The Petitioner(s) therefore pray(s)
(1) that it amy be determined that the said E.F. was not duly elected and that the
election was void [or that the said J.K. was duly elected and ought to have
been declared elected].
(2) that the Petitioner(s) may have such further or other relief as may be just.

Dated this day of 19

(Signed) Petitioner(s).



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 may be just.

Dated this day of 19

(Signed)
Petitioner(s).





This Petition is presented by
whose address for service is

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. 233/85. Citation. Interpretation. General practice and procedure. Filing of document. (Cap. 4, sub. leg.) Form and substance of petitions. Schedule. Signature and presentation of petition. Notice of presentation of petition. Manner of application for chambers. Affidavit of proposed surety to be filed and served on respondents. Grounds of objection to recognizance. Time and place for trial fo petition. Trial of petition. Lists of objections, in recriminatory case. Applicantion 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 particualrs. Notification of respondent's solicitor and service of notices. Witness' expenses. (Cap. 4) Costs of petition. Forfeiture of recognizance.

L..N. 233/85. Citation. Interpretation. General practice and procedure. Filing of document. (Cap. 4, sub. leg.) Form and substance of petitions. Schedule. Signature and presentation of petition. Notice of presentation of petition. Manner of application for chambers. Affidavit of proposed surety to be filed and served on respondents. Grounds of objection to recognizance. Time and place for trial fo petition. Trial of petition. Lists of objections, in recriminatory case. Applicantion 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 particualrs. Notification of respondent's solicitor and service of notices. Witness' expenses. (Cap. 4) Costs of petition. Forfeiture of recognizance.

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