Sixtus LEUNG Chung-hang and YAU Wai-ching have committed a crime – they should be arrested, charged and prosecuted

When Sixtus LEUNG Chung-hang and YAU Wai-ching were taking their oath of office in LegCo on 12 October 2016 they both committed the offence of making a False Declaration under Section 103 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, CAP 541D.

LEUNG Chung-hang taking the LegCo oath with a banner bearing the words Hong Kong IS NOT China

YAU Wai-ching taking the LegCo oath displaying a banner bearing the words Hong Kong IS NOT China

There should be no discussion about what they have done is right or wrong. They should be arrested, charged and prosecuted.

Evidence

This is based on the following evidence:

(1). YAU Wai-ching and LEUNG Chung-hang were recently nominated as candidates in the 2016 Legislative Council General Elections.

(2). As part of this nomination procedure each of them had to complete a Nomination Form under Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation Cap. 541D. This nomination form includes at Part II a Statutory Declaration of Eligibility.

2016 LegCo Election Nomination Form

Part II - Consent to Nomination and  Declaration of Eligibility

Part II - Consent to Nomination and  Declaration of Eligibility (cont'd)

Paragraph 5 of Part II of this declaration states:

我特此聲明，我會擁護《基本法》和保證效忠香港特別行政區。

I declare that I will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region.

Part II - Consent to Nomination and  Declaration of Eligibility
Para 5 - Declaration to uphold the Basic Law

See the following link to the form: http://www.eac.gov.hk/pdf/legco/2016lc/reo-n-gc-2016lc.pdf

(3). To be eligible as a candidate in the 2016 LegCo elections this section had to be completed and signed by ‘individual candidates’.

(4). Article 1 of the Basic Law states: The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China whilst Article 12 of the Basic Law states: The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government. 

(5). At the first meeting of the 2016 Legislative Council on 12 October 2016, all newly elected candidates were required to take the Legislative Council Oath of Office. On this occasion, both YAU Wai-ching and LEUNG Chung-hang displayed banners which read ‘Hong Kong IS NOT China’. This is a clear violation of the Basic Law!

(6). Whilst Article 77 of the Basic Law states: ‘Members of the Legislative Council of the Hong Kong Special Administrative Region shall be immune from legal action in respect of their statements at meetings of the Council’, displaying these banners in this way is an action, not a statement and as recently demonstrated by the prosecution of Raymond WONG Yuk-man for assault in the Legislative Council chamber, LegCo members are not immune from prosecution for their actions in Legislative Council meetings.

Conclusion

The display of these banners is unequivocal evidence that when YAU Wai-ching and LEUNG Chung-han signed in their Statutory Declaration of Eligibility they would uphold the Basic Law, this was a statement which they knew to be false in a material particular in an election related document under Section 103 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, CAP 541D.

Sixtus LEUNG Chung-hang and YAU Wai-ching have committed a crime. They should be arrested, charged and prosecuted.

Link to CAP 541D

Here’s a link to the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, CAP 541D: CAP 541D

Full text of Section 103 of CAP 541D

Here’s the full text of Section 103 – ‘Offence of False Declaration’ of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, CAP 541 D:

(1) A person who, in an election related document, makes a statement which that person knows to be false in a material particular or recklessly makes a statement which is incorrect in a material particular or knowingly omits a material particular from an election related document commits an offence.

(2) A person who directly or indirectly by himself or herself or by another person on his or her behalf conspires with, incites, compels, induces, coerces, intimidates or persuades another person to make a false statement in an election related document or to provide information which that person knows to be wrong in a material particular in an election related document commits an offence.

(3) A person who commits an offence under this section is liable to a fine at level 2 and to imprisonment for 6 months.

(3A) An offence under subsection (1) or (2) is to be an offence prescribed for the purposes of sections 39 and 40 of the Legislative Council Ordinance (Cap 542). (L.N. 65 of 2000; 11 of 2012 s. 55)

(4) In this section election related document (與選舉有關的文件) means a form, declaration, application, authorization, notice, statement or a nomination form required or used for the purposes of this Regulation.

Make a complaint to the Electoral Affairs Commission 

If you wish to make a complaint about this, you can complain to the Electoral Affairs Commission via the contact details given in the following link: http://www.eac.gov.hk/en/contact/contact.htm