54. Consequences of non-compliance with
requirements of this Ordinance

In any proceedings brought to question the validity of an election, the Court must not declare the election to be invalid only because of---

  1. a failure to comply with the regulations or with regulations in force under the Electoral Affairs Commission Ordinance (129 of 1997); or

  2. a mistake in the use of a nomination form,

    if it appears to the Court that the election was conducted in accordance with the principles laid down in this Ordinance and the Electoral Affairs Commission Ordinance (129 of 1997) and that the failure to comply or mistake did not affect the result of the election.

55. Misnomer or inaccuracy not to affect
operation of election document

  1. A misnomer or inaccurate description of a person, a person's identity document or place specified in a document to which this section applies does not limit the full operation of the document with respect to that person, identity document or place if the description of the person, identity document or place is such as to be commonly understood.

  2. This section applies to a register, nomination paper, ballot paper, notice or other document prepared for the purposes of an election.

56. Election to be presumed to be valid

Every election is presumed to be valid until it is questioned by an election petition within the period permitted by section 65 and the Court, on the hearing of the petition, determines that the election is invalid.

57. Election not to be questioned only because of defect
in the appointment of an electoral officer

An election is not to be questioned only because of a defect in the appointment of a person as an electoral officer if the person was at the relevant time holding office or acting as such an officer at the election.

58. Returning Officer to publish result of election

  1. The Returning Officer for an election to return Members for a geographical constituency must publish in the Gazette a notice declaring that the candidates returned at the election are the Members duly elected for the constituency.

  2. The Returning Officer for an election to return a Member or Members for a functional constituency must publish in the Gazette a notice declaring that the candidate or candidates returned at the election is or are the Members duly elected for the constituency.

  3. The Returning Officer for an election by the Election Committee must publish in the Gazette a notice declaring that the candidates returned at the election are the Members duly elected by that Committee.

  4. The Returning Officer concerned must ensure that the publication and notice required by this section comply with regulations in force under the Electoral Affairs Commission Ordinance (129 of 1997).
59. Offences by electoral officers with
respect to conduct of election

  1. Any person holding office as an electoral officer at an election who neglects or refuses to perform the functions or duties of that office in relation to the election commits an offence and is liable on conviction to a fine at level 2.

  2. A prosecution for an offence under this section may be brought only with the consent of the Secretary for Justice.

  3. A person is not to be liable to conviction under this section unless the complaint or information alleging the offence is laid within 3 months after the date of the alleged commission of the offence.

60. Elector not to be required to
disclose how vote was cast

  1. An elector who is asked to disclose the name of, or any particulars relating to, the candidate for whom the elector voted at the election is not required to answer the question.

  2. A person must not, without lawful authority, require, or purport to require, an elector to disclose the name of, or any particulars relating to, the candidate for whom the elector voted at an election.

  3. In this section, "elector" (選民) includes an authorized representative of a corporate elector.

  4. A person who contravenes subsection (2) commits an offence and is liable on conviction to a fine at level 2.

PART VII

Election Petitions

61. Election may be questioned only by election
petition made on specified grounds

  1. An election to return a Member may be questioned only on the following grounds---

    1. the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (129 of 1997) to have been elected as a Member at the election was not duly elected because---

      1. the person was ineligible to be, or was disqualified from being, a candidate at the election; or

      2. a corrupt or illegal practice was engaged in by or in respect of that person at or in connection with the election; or

      3. corrupt or illegal practices were generally prevalent at or in connection with the election; or

      4. material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or

    2. a ground specified in any other enactment that enables an election to be questioned.

  2. An election to return a Member may be questioned only by an election petition lodged under section 62.

  3. In this section, "election" (選舉) includes nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer.

62. Who may lodge election petition

  1. An election petition may be lodged, in the case of an election for a constituency---

    1. by 10 or more electors entitled to vote at the election; or

    2. by a person claiming to have been a candidate in the election.

  2. An election petition may be lodged, in the case of an election by the Election Committee---

    1. by 10 or more members of that Committee; or

    2. by a person claiming to have been a candidate in the election.

63. Who may be made respondent to election petition

  1. Any person whose election is questioned by an election petition and the Returning Officer in respect of the election may be made a respondent to the petition.

  2. Two or more candidates at an election may be made respondents to the same election petition and their cases may be tried at the same time, but for the purposes of this Part, and in relation to any order for giving security for costs, the petition is taken to be a separate election petition against each respondent.

64. Court to have jurisdiction to determine
election petitions

  1. The Court has the same jurisdiction and the same functions in respect of an election petition as it has in respect of an ordinary cause of action within its jurisdiction.

  2. An election petition is triable in open court and, unless the Chief Justice otherwise directs, before one judge.

  3. The Chief Justice may make rules providing for giving effect to this Part and for regulating matters relating to the preparation, lodgement, service, trial and withdrawal of election petitions and costs in respect of those petitions (including the giving of security for costs), and the practice and procedure concerning the trial of those petitions.

65. Period within which election petition is to be lodged

An election petition questioning an election may be lodged only during the period of 2 months following the date on which the Returning Officer has published the result of the election in the Gazette.

66. Court may direct security to be given for costs

  1. Within 5 days after lodging an election petition in the Court, or within such other period as the Court directs, the petitioner must give security for all costs that may become payable by the petitioner to any witness who gives evidence in the proceedings on the petitioner's behalf or to any respondent.

  2. The amount of security to be given under this section is to be of such amount, not exceeding $20,000, as the Court directs. That amount is to be provided in such manner and form as the Court directs.

  3. An election petition is taken to have been withdrawn if this section is not complied with.

67. Court to determine election petition

  1. At the end of the trial of an election petition that relates to an election that was not contested, the Court must determine whether any decision of the Returning Officer as to the validity of a nomination was correct and, if not correct, determine whether the person declared by that Officer to have been elected in that election was or was not duly elected.

  2. At the end of the trial of an election petition in relation to an election that was contested, the Court must determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead.

  3. At the end of the trial, the Court must certify the determination of the Court in writing. The judge must sign the certificate and ensure that the seal of the Court is applied to the certificate. The determination as certified is final as to the matters at issue concerning the election petition.

  4. The Registrar of the High Court must arrange for a copy of the certificate of the Court to be delivered to the Secretary for Constitutional Affairs, the Electoral Affairs Commission and the Clerk to the Legislative Council.

  5. The Court may, on its own initiative, provide the Secretary for Constitutional Affairs, or the Electoral Affairs Commission or the Clerk to the Legislative Council with a report on any matter arising in the course of the trial of an election petition if in its opinion the matter should be reported.

  6. The Court must comply with any request made by the Secretary for Constitutional Affairs or the Electoral Affairs Commission to provide a report on any specified matter arising from the trial of an election petition.

68. What happens if election petition is withdrawn

  1. A petitioner must not withdraw or abandon, or cease to prosecute, an election petition unless the petitioner has obtained the leave of the Court.

  2. At the hearing of an application for leave referred to in subsection (1)---

    1. any person who could have lodged an election petition in respect of the election concerned, or the Secretary for Justice, may apply to the Court to be substituted as petitioner; and

    2. the Court may, if it thinks appropriate, accordingly substitute that person or the Secretary for Justice.

  3. If an application to withdraw or abandon, or to cease to prosecute, an election petition is, in the opinion of the Court, induced by a corrupt bargain or the offer or giving of corrupt consideration, the Court may direct that the security given on behalf of the original petitioner is to remain as security for any costs that are incurred by the substituted petitioner. To the extent of such sum as the Court may direct, the original petitioner (and that original petitioner's sureties, if any) is to be liable to pay the costs of the substituted petitioner.

  4. If the Court does not so direct, then before the substituted petitioner may proceed with the substituted election petition, security of the same amount as would be required to be given under section 66 in the case of an original petition must be given by or on behalf of that petitioner in the same manner and form, and within such period, as the Court directs. This subsection does not apply to the Secretary for Justice.

  5. Subject to subsections (3) and (4), a substituted petitioner stands in the same position as the original petitioner.

  6. If a petitioner is substituted for the original petitioner, the original petitioner must provide the substituted petitioner with all evidence available to the original petitioner and relevant to the continued prosecution of the election petition.

  7. The petitioner is liable to pay the costs of the respondent if---

    1. the election petition is withdrawn or abandoned; or

    2. the petitioner ceases to prosecute the petition.

  8. If there are 2 or more petitioners, an application to withdraw or abandon, or to cease to prosecute, the election petition can be made only with the consent of all the petitioners.

  9. Any person who---

    1. contravenes subsection (1); or

    2. without reasonable excuse, fails to comply with subsection (6), commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 6 months.

69. When an election petition is terminated

  1. If an election petition is lodged by a natural person, the petition is terminated by the person's death.

  2. If an election petition is lodged by 2 or more petitioners, the petition is terminated if the last remaining petitioner---

    1. (where that petitioner is a natural person) dies; or

    2. (where that petitioner is a body) ceases to exist.

  3. The termination of an election petition under this section does not affect the liability of the estate of the deceased petitioner, or the liability of any other person, for the payment of costs previously incurred.

  4. On the termination of an election petition under this section, the Registrar of the High Court must publish in the Gazette a notice of the termination. Within 14 days after the publication of the notice, any person who could have lodged a petition in respect of the election concerned may apply to the Court in writing to be substituted as a petitioner. On receiving such an application, the Court may, if it thinks appropriate, substitute the applicant for the original petitioner.

  5. The same security must be given by or on behalf of the substituted petitioner as would be required to be given by or on behalf of the original petitioner.

70. When respondent can withdraw from election proceedings and be substituted

  1. If, before the trial of an election petition, a respondent other than a Returning Officer---

    1. dies, resigns or otherwise ceases to hold the office to which the petition relates; or

    2. gives the Registrar of the High Court notice that the respondent does not intend to oppose the petition,

    that Registrar must publish in the Gazette a notice of that fact.

  2. Within 14 days after the publication of such a notice, any person who could have lodged an election petition in respect of the election concerned may apply to the Court in writing to be substituted as a respondent to oppose the election petition. On receiving such an application, the Court must order the applicant to be substituted as respondent to the petition.

  3. A respondent who has given notice under subsection (1)(b) cannot appear or participate in the proceedings on the election petition in opposition to that petition.

71. Acts of person not invalid if declared not to be elected

The certification by the Court of a determination under section 67 that a person who was originally declared to have been elected at an election has not been duly elected does not invalidate acts purporting to have been done by the person as a Member before the certificate is received by the Secretary for Constitutional Affairs, the Electoral Affairs Commission or the Clerk to the Legislative Council.

72. What is to happen if Member is determined
not to have been duly elected

  1. If, on the hearing of an election petition, the Court determines that a person who was originally declared to have been elected as a Member at an election was not duly elected, that person ceases to be a Member and, subject to subsection (2), that person's office as a Member becomes vacant from the date of the determination.

  2. If, on the hearing of an election petition, the Court determines that a person was duly elected as a Member in place of a person that the Court has determined not to have been duly elected at the election, the first-mentioned person becomes a Member from the date of the determination.

PART VIII

Other Legal Proceedings

73. Proceedings against persons on
grounds of disqualification

  1. An elector, or the Secretary for Justice, may bring proceedings in the Court against any person who is acting, claims to be entitled to act, as a Member on the ground that the person is disqualified from acting as such.

  2. Proceedings under this section may not be brought after 6 months from the date on which the person concerned acted, or claimed to be entitled to act, as a Member.

  3. If, in proceedings brought under this section, it is proved that the defendant acted as a Member while disqualified from acting in that office, the Court may---

    1. make a declaration to that effect; and

    2. grant an injunction restraining the defendant from so acting; and

    3. order the defendant to pay to the Government such sum as the Court thinks appropriate, not exceeding $5,000 for each occasion on which the person so acted while disqualified.

  4. If, in proceedings brought under this section, it is proved that the defendant claimed to be entitled to act as a Member while disqualified from acting in that office, the Court may---

    1. make a declaration to that effect; and

    2. grant an injunction restraining the defendant from so acting.
  5. Proceedings brought under this section by a person other than the Secretary for Justice are to be stayed until the person has given security for all costs that the person may be ordered to pay to any witness giving evidence in the proceedings on that person's behalf or to a defendant.

  6. The amount of security to be given under this section---

    1. is to be determined by the Court, but must not exceed $20,000; and

    2. is to be in such manner and form as the Court directs.

  7. Proceedings against a person on the ground that the person has, while disqualified from acting as, or claimed to have been entitled to act, as a Member may be brought only in accordance with this section.

  8. For the purposes of this section, a person is disqualified from acting as a Member if the person---

    1. is not qualified to be, or is disqualified from being, a Member; or

    2. has ceased to hold office as a Member.

74. Period within which complaint or
information is to be laid

Except as otherwise provided by this Ordinance, a complaint or information alleging the commission of an offence against this Ordinance must be laid within 3 years from the date of the alleged commission.

PART IX

Appointment and Functions of Officers

75. Appointment of Electoral Registration
Officer and assistants

  1. The Chief Executive must appoint an Electoral Registration Officer and such number of Assistant Electoral Registration Officers as appears to the Chief Executive to be necessary for the purposes of registering persons as electors at elections to return Members and as voters at Election Committee subsector elections.

  2. The Electoral Registration Officer has such functions and duties as are conferred or imposed on that Officer by or under this Ordinance.

  3. An Assistant Electoral Registration Officer may, with the authority of the Electoral Registration Officer, exercise and perform the functions and duties of Electoral Registration Officer.

  4. The Secretary for Constitutional Affairs must publish in the Gazette notice of the appointment of a person as Electoral Registration Officer and the Officer's address.

  5. The Government must ensure that the Electoral Registration Officer is provided with such staff as that Officer requires in order to exercise and perform that Officer's functions and duties under this Ordinance.

  6. Expenses properly incurred by the Electoral Registration Officer in the exercise or performance of that Officer's functions or duties under this Ordinance or the Electoral Affairs Commission Ordinance (129 of 1997) are a charge on, and are payable from, the general revenue.

76. Electoral Registration Officer may specify forms

The Electoral Registration Officer may specify the form of any application, notice, return, record or other document required for the purposes of Part V or Schedule 2.

77. Appointment of Revising Officer

  1. The Chief Justice may appoint any magistrate, or any legal officer within the meaning of the Legal Officers Ordinance (Cap. 87), to be a Revising Officer for the purposes of this Ordinance.

  2. If no appointment is made under subsection (1), the Registrar of the High Court is taken to be a Revising Officer.

  3. A Revising Officer has such functions and duties as are conferred or imposed on that Officer by or under this Ordinance.

  4. A Revising Officer has, when exercising or performing the Officer's functions and duties, the powers and immunities of a magistrate under sections 21, 22, 99, 125 and 126 of the Magistrates Ordinance (Cap. 227).

78. Appointment of Returning Officers and assistants

  1. The Electoral Affairs Commission must appoint for each constituency and for the Election Committee a Returning Officer and such number of Assistant Returning Officers as appears to the Commission to be necessary to enable an election to be held in the constituency and by that Committee.

  2. The Electoral Affairs Commission must appoint for each Election Committee subsector a Returning Officer and such number of Assistant Returning Officers as appears to the Commission to be necessary to enable members (other than ex-officio members) to be returned for the subsector.

  3. A Returning Officer has such functions and duties as are conferred or imposed on that Officer by or under this Ordinance.

  4. An Assistant Returning Officer may, with the authority of the Returning Officer concerned, exercise and perform the functions and duties of Returning Officer.

  5. The Electoral Affairs Commission must publish in the Gazette a notice of the appointment of a Returning Officer and that Officer's address.

  6. The executive authorities of the Government must ensure that each Returning Officer is provided with such staff as that Officer requires in order to exercise and perform that Officer's functions and duties under this Ordinance.

  7. Expenses properly incurred by a Returning Officer in the exercise or performance of that Officer's functions or duties under this Ordinance or the Electoral Affairs Commission Ordinance (129 of 1997) are a charge on, and are payable from, the general revenue.

79. Offence to obstruct or hinder electoral officers

A person who, without reasonable excuse, obstructs or hinders, or interferes with, an electoral officer in the exercise of a function conferred, or the performance of a duty imposed, by or under this Ordinance commits an offence and is liable on conviction to a fine at level 2.

80. Chief Executive may give directions as to exercise
or performance of electoral officers' functions
and duties

  1. The Chief Executive may give directions, either generally or in any particular case, with respect to the exercise or performance by an electoral officer of any of the officer's functions or duties under this Ordinance with respect to the holding or conduct of an election. The directions have no effect to the extent that they are inconsistent with this Ordinance or the Electoral Affairs Commission Ordinance (129 of 1997).

  2. An electoral officer must, when exercising or performing a function or duty under this Ordinance, comply with any direction given by the Chief Executive under this section with respect to the exercise or performance of the function or duty.

81. Death or incapacity of electoral officer not to terminate authority

Death or incapacity of an electoral officer does not terminate any authority conferred by the officer for the purposes of this Ordinance.

PART X

Subsidiary Legislation

82. Chief Executive in Council may make regulations

  1. The Chief Executive in Council may make regulations for the better carrying out of the purposes of this Ordinance.

  2. In particular, a regulation under this section may provide for all or any of the following---

    1. the number or qualifications of subscribers required to complete a nomination paper for a candidate or a list of candidates; and

    2. the amount that a candidate or a list of candidates is required to lodge as a deposit at an election; and

    3. the forfeiture of the deposit if the candidate or list of candidates fail to obtain a prescribed proportion of the votes cast at the election and for the return of the deposit if the candidate or list of candidates obtain that proportion of votes at the election; and

    4. the functions and duties of a Revising Officer; and

    5. appeals to a Revising Officer.

  3. A provision of a regulation may make it an offence, punishable by a fine not exceeding level 2, for a person to contravene a provision of the regulation.

  4. A regulation may---

    1. make different provisions for different circumstances and provide for a particular case or class of cases; and

    2. be made so as to apply only in specified circumstances; and

    3. prescribe fees for the purposes of the regulation.

  5. In this section, a reference to an election includes a reference to an Election Committee subsector election and a reference to a candidate includes a reference to a candidate at such an election.

83. Chief Executive in Council may amend
Schedules 1 and 2

  1. The Chief Executive in Council may, subject to the approval of the Legislative Council, by order published in the Gazette, amend Schedules 1 and 2.

  2. In this section, "Legislative Council" (立法會) includes the Provisional Legislative Council.

PART XI

Miscellaneous

84. Savings and transitional provisions
Schedule 3 has effect.

85. Consequential amendment of other Ordinances

  1. The Prevention of Bribery Ordinance (Cap. 201) is amended as indicated in Part 1 of Schedule 4.

  2. The Independent Commission Against Corruption Ordinance (Cap. 204) is amended as indicated in Part 2 of Schedule 4.

  3. The Corrupt and Illegal Practices Ordinance (Cap. 288) is amended as indicated in Part 3 of Schedule 4.

  4. The Federation of Hong Kong Industries Ordinance (Cap. 321) is amended as indicated in Part 4 of Schedule 4.