HUNG CHI KIT v. LEE YUE SHUN AND ANOTHER

HCAL 3852/2019

[2020] HKCFI 1802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3852 OF 2019

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R U L I N G

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1.  Hung Chi Kit (“the Petitioner”) and Lee Yue Shun (“the 1^st Respondent”) were the only two candidates in the Eastern District Council Election for Kam Ping Constituency (“the Election”) held on 24 November 2019 (“the Polling Day”). The polling station for the Election was located at HKPA Jockey Club North Point Island Place Integrated Service Centre for Children and Youth on 2/F, Island Place, 53 Tanner Road, North Point, Hong Kong (“the Polling Station”). The Petitioner received 3,027 valid votes, while the 1^st Respondent received 3,113 valid votes. In other words, the Petitioner lost by 86 votes. On 25 November 2019, the Returning Officer (“the 2^nd Respondent”) declared the 1^st Respondent to have been elected for Kam Ping Constituency in the Election.

2.  By this Election Petition presented on 24 December 2019, the Petitioner seeks to question the election of the 2^nd Respondent on the ground that material irregularities occurred in relation to the Election, or to the polling or counting of votes at the Election, pursuant to s 49(1)(a)(iv) of the District Councils Ordinance, Cap 547.  The alleged irregularities are set out in paragraph 16.1 to 16.5 of the Election Petition which it is not necessary to set out in this Ruling.

3.  One of the matters complained of by the Petitioner in the Election Petition concerns the number of voters who cast votes at the Polling Station during the period from 9:30 pm to 10:30 pm on the Polling Day.  It is the Petitioner’s case that according to the observation of his polling agent (“Tsoi”), who was inside the Polling Station at the material time, less than 250 voters voted during the period from 9:30 pm to 10:30 pm, and less than 30 voters voted during the period from around 10:10 pm to 10:30 pm, on the Polling Day at the Polling Station.  Further, according to the counting carried out by 2 voluntary helpers, approximately only 67 and 83 voters entered the Polling Station during the periods from (i) 9:30 pm to 10:00 pm and (ii) 10:00 pm to 10:30 pm respectively.  However, according to the voter turnout statistics provided by the Presiding Officer, a total of 455 voters voted at the Polling Station during the period from 9:30 pm to 10:30 am on the Polling Day.

4.  According to the Petitioner, two lifts (“the Lifts”) in Island Place were the only “gateway” from the ground level to the Polling Station on the 2/F of Island Place on the Polling Day because the staircase that normally provided access from the G/F to the 2/F of Island Place had been cordoned off by the polling staff.  Thus, voters who cast votes in the Election on the Polling Day must use one of the Lifts to access the Polling Station from ground level, although voters leaving the Polling Station had the option of using either the Lifts or the staircase to return to the ground level.

5.  By this summons issued on 30 June 2020 pursuant to s 42(1) of the High Court Ordinance (Cap 4) and Order 24, r 7A of the Rules of the High Court (Cap 4A), the Petitioner applied for discovery of “the video footages recorded by two CCTV cameras installed in the two lifts at Island Place, 53 Tanner Road, North Point on 24 November 2019 from 7:30 am to 11:45 pm” (“the Requested Materials”) from Island Place (Management) Limited (“the Management Company”).  On behalf of the Petitioner, Mr Law submits that the Requested Materials are relevant to the issues raised in the Election Petition for determination because:

“the video footages between 9:30 pm and 10:30 pm can show how many electors had entered the polling station in that hour, whether the headcount was significantly inconsistent with the corresponding figure published by the [Presiding Officer] and whether P and his agents had been obstructed when they sought to enter the polling/counting station. The earlier video footages (from 7:30 am to 9:30 pm) were obtained to assess the overall credibility/reliability of the witnesses’ evidence regarding headcount, and they could help parties deduce approximate percentage of repetitive headcount.”[1]

This morning, Mr Law has clarified that the part of the video footages relevant to the issue of whether the Petitioner and his agents had been obstructed when they sought to enter the polling/counting station is between 10:38 pm and 11:35 pm.

6.  The 1^st Respondent and the Management Company have adopted a neutral stance in relation to the Petitioner’s application.  The 2^nd Respondent, however, objects to the application on the ground that the Requested Materials are not relevant to the issues in the Election Petition, and/or are not necessary for disposing fairly of the cause or matter or for saving costs.  The 2^nd Respondent proposes to file evidence to show, inter alia, that the Lifts were not the only means of access to the Polling Station on the Polling Day from the ground level of Island Place.  In particular, the 2^nd Respondent says that voters could have got to the Polling Station using the stairs, especially during the period from 9:30 pm to 10:30 pm when there were fewer voters tuning up to vote at the Polling Station and there were no polling staff stationed on the ground floor of the building to direct the voters to use the Lifts (instead of the stairs) to go up to the Polling Station.  Mr Law has referred me to paragraphs 15 and 16 of the Presiding Officer’s affirmation dated 14 April 2020 to show that he has accepted the Applicant’s case regarding access to the 2/F of Island Place on the Polling Day.  There is some prima facie validity to this submission, but I do not consider that the 2^nd Respondent should be shut out from putting in evidence on the issue of access to the 2/F of Island Place on the Polling Day.

7.  The 2^nd Respondent also says that the Presiding Officer’s calculation of voters’ turnout was based on the number of ballot papers issued at the end of every hour on the Polling Day, which was not the same as counting the number of persons who entered the Polling Station.  Thus, the number of persons who entered the Polling Station during the period from 9:30 pm to 10:30 pm on the Polling Day as observed and/or counted by the Petitioner’s polling agent and/or voluntary helpers could not be equated to the voter turnover figures provided by the Presiding Officer.

8.  The issues mentioned above, and possibly other issues such as whether the discovery sought by the Petitioner is too wide, have to be considered in order to dispose of the application.  The question now is whether the court should deal with the application substantively at this hearing, or adjourn the hearing of application for full argument and give directions for the filing of evidence.  In my view, the evidence proposed to be filed by the 2^nd Respondent is relevant and should be considered before a proper determination of the discovery application can be made.  On 17 July 2020, the Department of Justice on behalf of the 2^nd Respondent wrote to the Petitioner’s solicitors proposing certain directions for the filing of evidence and that the present hearing of the summons be adjourned to a date to be fixed for substantive argument with 3 hours reserved.  Those proposals have not been accepted by the Petitioner.  I see no sufficient reason to deprive the 2^nd Respondent of the opportunity to put in evidence in opposition to the Petitioner’s application.  Accordingly, I give the following directions:

(1)  leave to the 2^nd Respondent to file and serve evidence in opposition to the summons dated 30 June 2020 within 28 days;

(2)  leave to the Petitioner to file and serve evidence in reply (if so advised) within 14 days thereafter;

(3)  no further evidence may be filed without leave of the court;

(4)  the hearing of the summons dated 30 June 2020, together with the Petitioner’s summons for directions dated 21 January 2020, shall be heard on a date to be fixed, with 3 hours reserved;

(5)  the Petitioner, the 1^st Respondent and the 2^nd Respondent shall, within 14 days, inform the court of the available dates of their counsel for a 3-hour hearing during the period from 1 October to 31 December 2020.  The court shall take into account, but will not be bound by, counsel’s diaries when fixing the hearing date;

(6)  costs of today be reserved.

I shall deal with the question of the Management Company’s costs at the next hearing.  Further attendance by the Management Company is not required unless otherwise directed by the court.