LEUNG WING HUNG v. YUEN KWAI CHOI

HCAL 10/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 10 OF 2008

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J U D G M E N T

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Introduction

1.  This is an election petition.  The petitioner was a district councillor of the Tai Wai (Mei Lam and May Shing) constituency of the Shatin District Council from 1999 to 2007, having been elected in 1999 and 2003 respectively.  He was one of the two candidates for the same constituency in the 2007 District Councils Ordinary Election, which was held on 18 November 2007.  His only opponent in the election was the respondent, who had been a district councillor before and had lost to the petitioner in the 2003 election.

2.  The constituency had a total of 12,500 registered voters in the 2007 election.  The petitioner received 2,768 votes, whereas the respondent received 2,851 votes at the election for the constituency.  The petitioner lost by 83 votes, or 1.477% of the total vote cast.  From any angle, it was a very tight race.

3.  The petitioner now claims that the respondent was not duly elected because ‘illegal conduct’ was engaged in by the respondent at or in connection with the election: s 49(1)(a)(ii) of the District Councils Ordinance (Cap 547).  ‘Illegal conduct’ under the Ordinance means illegal conduct in contravention of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554).

4.  He alleges that in two election leaflets issued by the respondent, the respondent published materially false or misleading statements of fact about him, for the purpose of promoting the election of the respondent or prejudicing the election of him (the petitioner), which constituted illegal conduct within the meaning of s 26(2) of the Elections (Corrupt and Illegal Conduct) Ordinance.  S 26 of that Ordinance reads:

“(1)  A person engages in illegal conduct at an election if the person publishes a materially false or misleading statement of fact about a particular candidate or particular candidates for the purpose of promoting or prejudicing the election of the candidate or candidates.

(2)  A candidate engages in illegal conduct at an election if the candidate publishes a materially false or misleading statement of fact about the candidate or candidates with whom the candidate is associated, or about another candidate or other candidates, for the purpose of-

(a)  promoting the election of the candidate or candidates with whom the candidate is associated; or

(b)  prejudicing the election of the other candidate or candidates.

(3)  For the purposes of this section, statements about a candidate or candidates include (but are not limited to) statements concerning the character, qualifications or previous conduct of the candidate or candidates.

(4)  In a prosecution for an offence of having engaged in illegal conduct under subsection (1) or (2), it is a defence to prove that the defendant believed on reasonable grounds that the statement was true at the time when it was made.”

5.  Crucial to the petitioner’s complaint is the representation he made in various election materials that he was a ‘全職議員’ by way of occupation.  I will presently return to the precise meaning of the term in Chinese, but for the time being the term may be translated as ‘full time councillor’.

6.  Less than a week before election day, the respondent started to allege that in fact, apart from being a district councillor, the petitioner also worked as a funeral service consultant (as was indeed the case).  The respondent took the view that the petitioner was, therefore, not a ‘全職議員’ and he took his case to the electors by means of an election leaflet issued on 12 November 2007:

街坊投訴某候選人自稱‘全職議員’隱瞞職業不誠實

“我們收到街坊投訴，那個自稱從不轉區，不會轉軚的候選人，一直以來，其傳單內都宣稱自己是‘全職議員’，但其實他一向都有從事其他職業。

佐證一：

這是街坊提供的由那位自稱是‘全職議員’親手交給他的咭片

[LOGO]

唐 福 壽 儀

梁永雄

善終服務顧問

Mobile : [no]

Add : 九龍紅磡華豐街13號地下            Tel :  [no]

G/F, 13 WA FUNG STREET,                           [no]

HUNG HOM，KOWLOON                Fax :    [no]

佐證二：

2006年1月10日舉行之沙田區議會衛生及環境委員會會議紀錄初稿第二十七頁第45段：梁XX先生申報他是善終服務顧問。（可上網至沙田區議會網頁查看參考）

我們向業內人士求教，善終服務顧問是甚麼職業，原來所謂善終服務顧問即殯儀經紀，是向殯儀館介紹顧客後收取佣金的行業。

本來，擔任區議員，沒有規定要全職，從事任何職業，亦是服務社會，理應受到尊重。但是作出虛假陳述，隱瞞職業，騙取信任，這是不誠實的行為。值得您支持嗎？

袁貴才97-03年，在擔任區議員期間，是真真正正的全職議員，03年後雖沒有擔任區議員，但從沒有離開大圍﹑美林美城，仍然全職服務居民。

全職服務，1號袁貴才做得到！”

7.  It is important to note that in the first leaflet, the respondent alleged that, by reason of the matters just described, the petitioner had made a false representation (‘作出虛假陳述’), had concealed his occupation (‘隱瞞職業’), had obtained others’ trust and confidence by deception (‘騙取信任’) and all this constituted dishonest conduct (‘這是不誠實的行為’).  7,000 copies were printed and distributed in the constituency.

8.  This prompted the petitioner to issue a reply declaration on 14 November 2007 in the following terms:

“自從99年當選至今，本人差不多每一天在議員辦事處工作，服務市民，這是居民有目共睹的，而本人的區議會會議的出席率也超過90%

面對社會人口老化，善終服務在地區有一定的需求，至於本人擔任「善終服務顧問」一事，這是一份沒有固定底薪或固定收入的工作，它只佔本人極少的工作時間，本人在區議會內亦有作出此項利益申報，從沒隱瞞。

至於過去八年，本人紮根地區，工作從未間斷，現懇請各街坊在11月18日(星期日)全家總動員支持敢言實幹的梁永雄，投下關鍵的一票。多謝！”

9.  On election day, the petitioner felt that his chances of being re-elected were in doubt, and he issued a further leaflet:

“二零零七年沙田區議會選舉大圍（美林/美城）選區參選人

② 梁永雄

請支持梁永雄議員 競選連任

選情告急

由於被袁貴才先生無理抹黑不誠實，令選情落後，經我們投訴後，選舉主任認為有關投訴涉及違反「選舉(舞弊及非法行為)條例」，已轉交執法部門處理。現懇請各位全家總動員支持一個為街坊辛勤服務八年的梁永雄，從後趕上，請投下關鍵的一票。”

10.  In response, the respondent printed and distributed a second leaflet, which is the second leaflet under complaint, later on the same day:

“您會選一個不誠實的人為您服務嗎？

自從梁永雄先生被揭發不是全職議員，而是擔任善終服務顧問後，已經證據確鑿。其回應聲明亦已承認。我們已向選舉主任投訴其違反選舉條例，並轉交執法部門處理。現梁永雄先生賊喊捉賊，可見其不知悔改，毫無資格擔任區議員。請您全家動員

投票支持①號

袁貴才”

11.  It should be noted that the caption called the petitioner a dishonest person (‘不誠實的人’).  In the body of the leaflet, the respondent commented that the petitioner was unrepentant, and was therefore not qualified to serve as a district councillor.  A total of 5,000 copies were printed and distributed.

Parties’ respective cases

12.  The petitioner’s case is very straightforward.  Mr Martin Lee SC, Mr Erik Shum with him, contends on the petitioner’s behalf that he has not misdescribed himself or his occupation by claiming to be a ‘全職議員’, notwithstanding the fact, which is admitted, that he did also work as a freelance funeral service consultant at the time and in fact had done so since early 2005.  In those circumstances, the respondent has made false accusations against the petitioner in his first leaflet by accusing him of making a false representation, of concealing his occupation (as a funeral service consultant), of obtaining others’ trust and confidence by deception and of engaging in dishonest conduct.  Although originally, the petition also complained about the second leaflet, which called the petitioner a dishonest person, Mr Lee has accepted in final submission that it is a statement of opinion, which is not covered by s 26(2), and rather, his client’s case turns on the statements of fact made in the first leaflet.

13.  On the other hand, the respondent maintains that he did not make any false statement of fact against the petitioner in his first leaflet (he also contends that what he asserts in the second leaflet is a statement of opinion, which is accepted to be the case by the other side).  In particular, the respondent says that in his own understanding, the description ‘全職議員’, when used in the context of a district council, requires the councillor in question to devote his entire attention and time to the work of a councillor by attending to council affairs and serving residents of his constituency.  He accepts, however, the councillor may, if his time allows, undertake outside work or provide service to others so long as he does not receive remuneration for it.  But if he receives remuneration for his outside work or service, he can no longer call himself a ‘全職議員’.  Subject to the de minimus rule, Mr Anthony Wu, counsel for the respondent, maintains that having any paid job for whatever amount would automatically prevent the councillor from claiming himself to be a ‘全職議員’.  Applying that understanding to the case of the petitioner, since he earned income from his work as a funeral service consultant, he was not entitled to claim himself to be a ‘全職議員’ by way of occupation in his election materials.  The respondent therefore says that the petitioner did make a false representation about his occupation, conceal his occupation (as a funeral service consultant) and obtain others’ trust and confidence by deception, and all this amounted to dishonest conduct.  Mr Wu further contends that in fact, apart from the allegation that the petitioner has made a false representation about his occupation, the other allegations are really statements of opinion, rather than statements of fact.

Evidence

14.  I have admitted the affirmations filed by the parties as evidence at the substantive hearing.  In addition, I have also heard oral evidence from both the petitioner and respondent.  I am glad to say that both have been straightforward and honest in the witness box, and so far as their factual evidence is concerned, I have no difficulty in accepting them as truthful and reliable witnesses.

15.  In particular, in relation to the petitioner’s evidence, I have no difficulty in accepting that he first worked as a freelance funeral service consultant in around March 2005.  He worked in conjunction with one Mr Lee Ka Wah who was one of the partners of Tong Fook Undertakers.  It was a part time work.  His job was simply to refer those in need of funeral services to Mr Lee.  He would first meet with the family of the deceased person, understand the needs and requirements, and then refer the family to Mr Lee for the provision of the required funeral services.  He essentially acted as a middleman referring business to Mr Lee.  It was not a time-consuming job and his responsibility was not onerous.  It involved no more than a few telephone calls, a visit to the deceased’s family or a meeting with the family and then another meeting with Mr Lee whereby the family was introduced to Mr Lee.  The petitioner obtained business through his connections.  He regarded what he did more as a service to relatives and friends that he knew than a real business.  The petitioner received no basic ‘salary’ or regular remuneration for his work.  Rather, for each transaction (per deceased person), he would be paid by Mr Lee a transportation allowance (車馬費) of not more than $500.  In March 2005 when he first began, he earned $270 from his consultancy work.  In the tax year 2005/2006, he earned a total of $990 out of two referrals in the whole of that tax year.  In the tax year 2006/2007, there were eleven referrals involving twelve deceased persons, and he was paid a total of $6,000.  In the tax year 2007/2008 (up to election day on 18 November 2007), there were seven referrals, which brought in an income of $3,500 in total.

16.  There was, at one stage, some confusion in the petitioner’s affirmation evidence as to his actual (gross) income from the consultancy work.  After clarification in his last affirmation and evidence in the box, I have no doubt that the petitioner has simply made a mistake in filling out his tax returns by wrongly putting down Mr Lee/Tong Fook’s gross receipts from the referral cases as his own gross income when in fact he was earning much less (not more than $500 per referral).  In my view, nothing came out of Mr Wu’s probing of this part of the petitioner’s evidence during cross-examination.

17.  I further accept the petitioner’s evidence that he has performed his job as a district councillor diligently.  His attendance rate of meetings of the District Council was over 90%.  He had a district councillor’s office and he attended it on a daily basis (Monday to Friday) from 3 to 8 pm.  He also had a full time assistant to help him in the office. 

18.  The petitioner said in evidence, and I have no difficulty in accepting it, that he has never allowed his part time funeral service consultancy work to affect his work as a district councillor.  In his name card for his consultancy work, he gave, not the telephone numbers of his district councillor’s office, but rather his mobile telephone number as well as the telephone numbers of Tong Fook. 

19.  Nor has the petitioner concealed his part time work as a funeral service consultant from the District Council.  As has been pointed out in both the respondent’s first leaflet and the petitioner’s reply declaration, the petitioner has declared his interest as a funeral service consultant at a meeting of the District Council in 2006, when some relevant matters were discussed at the meeting.  I do not accept Mr Wu’s argument that in that meeting, the petitioner addressed the Council as an expert in the funeral service industry.  In my judgment, he only addressed it as somebody who knew something about funeral matters.  I accept the petitioner’s evidence in the box that he was no funeral service ‘expert’ and did not pretend to be one.

20.  Having listened carefully to the evidence of the petitioner, I have been left with no doubt that he genuinely believed, and still believes, that he has not misdescribed his occupation by claiming to be a ‘全職議員’. 

21.  As for the respondent, he struck me as a calm, straightforward and impressive witness in the box.  Having listened carefully to his evidence, I have no doubt that he honestly believed, and still believes, that his understanding of the term ‘全職議員’ as an occupation is the correct one, and, therefore, in the case of the petitioner (and in the case of others in similar situations as well), they were not entitled to claim themselves to be a ‘全職議員’.  He therefore believed, and still believes, that he has made no false representation against the petitioner.  I have no reason to doubt that he genuinely held and still holds that view.

Statements of fact

22.  But that does not dispose of the issue in this case.  In my view, the respondent has made several statements of fact against the petitioner.  That the petitioner has made a false claim that he was a ‘全職議員’ is just one of them.  I reject Mr Wu’s submission that the other allegations (‘隱瞞職業，騙取信任，這是不誠實的行為’) are only statements of opinion.  In my view, all of them are statements of fact.  And even the last one (不誠實的行為), is, unlike an allegation that someone is dishonest (which is the allegation in the second leaflet), a statement of fact in the context of the first leaflet.

23.  The issue, therefore, is whether these allegations are true or false.  It is quite plain that to a large extent, it turns on whether the petitioner was a ‘全職議員’ by way of occupation.

‘全職’ and ‘全職議員’

24.  ‘全職議員’ is not a term of art.  Nor is it a term defined by law.  In fact, although dictionary meanings of various words have been referred to the Court, one does not find the definition of the term ‘全職議員’.

25.  The term ‘全職’ or ‘full time’ has been used in legislation.  In the Professional Accountants Ordinance (Cap 50), s 10(2)(c) provides that the Council of the Hong Kong Institute of Certified Public Accountants shall consist of, amongst others, not less than six certified public accountants in ‘full time practice’ (‘全職執業’) as certified public accountants (practising) and not less than six certified public accountants otherwise than in full time practice as certified public accountants (practising).  S 10(2A) provides that for the purpose of sub-section (2)(c), a certified public accountant shall be regarded as in full time practice as a certified public accountant (practising) if he, amongst other things, ‘is free to devote substantially the whole of his time during normal office hours to provide his services as a certified public accountant (practising)’ and ‘has not entered into and there is not subsisting a contract of employment between him and an employer (other than an employer who is a certified public accountant (practising) [etc]) under which he is bound to devote the whole or substantially the whole of his time during normal office hours to his employment’.

26.  In s 11(7) of the Employees Compensation Ordinance (Cap 282), where the method of calculating the earnings of an injured employee who has entered into concurrent contracts of service with two or more employers is set out, the second proviso states that the sub-section shall not apply where an employee is in the ‘full time employment’ (‘全職受僱’) of that employer for whom he was working at the time of the accident, in which case the earnings of such employee shall be his earnings in such full time employment and that for the purposes of the proviso, full time employment means ‘employment for not less than 40 hours during a minimum period of 5 days in any 1 week’.

27.  ‘Full-time education’ (‘全日制教育’) is used in s 19(4)(a)(i) of the Pension Benefits Ordinance without any specific definition.  The term ‘full-time occupation’ (‘全時間佔用’) is used in the definition of ‘occupier’ in s 1A of the Town Planning Ordinance (Cap 131), again without a specific definition.  Likewise, the phrase ‘in the full time employment of’ (‘是全職受僱於’) is found in s 5(1)(r) of the Jury Ordinance (Cap 3) but the phrase is not otherwise defined.

28.  Needless to say, none of these provides a definition of the term ‘全職議員’ or even the term ‘全職’.  But it is fair to say that ‘全職’ is generally translated and understood to be equivalent to ‘full time’ in English.  Furthermore, it should be noted that in the two instances where ‘full time’ (‘全職’) is specifically defined, the definitions do not require the accountant/employee in question to have no outside job – paid or unpaid.  In the case of the employee, the definition is very general if not loose.  This may be explained by the context.  In the case of the public certified accountant, the main emphasis is quite plainly on whether the accountant in question is free to devote substantially the whole of his time during normal office hours to provide his services as a certified public accountant (practising) and whether he has entered into and there is subsisting a non-certified public accountancy employment between him and an employer under which he is bound to devote the whole or substantially the whole of his time during normal office hours to that employment.

29.  In my view, ultimately, it is the ordinary people’s understanding of the term ‘全職議員’, and particularly the adjective ‘全職’ in Hong Kong which really matters in the present case.  And I emphasise the word ‘understanding’.  To elevate any elaboration of the term into a definition is unjustified.  All one is able to do is to offer one’s understanding of ‘全職’ and ‘全職議員’, as used generally in Hong Kong.  For my part, I do not accept Mr Wu’s argument that ‘全職’ must refer to some occupation or job.  The term can be and is used to describe, for instance, housewives and students.  Thus, at least in Hong Kong usage, we do come across ‘全職主婦’ and ‘全職學生’.  Mr Wu makes a better point when he says that in the present case, ‘全職議員’ is given by the petitioner as his ‘occupation’ in the election materials.  So, what one is talking about here is really the petitioner’s job or occupation.

30.  This brings me to my earlier point that generally speaking, the term ‘全職’ can be and is very often translated as ‘full time’.  The translation is not perfect only in the sense that the English translation refers to ‘time’ whereas the actual Chinese word used is ‘職’, which can mean, literally, a job or a responsibility.

31.  Since Mr Wu argues strongly that whether one devotes full time to his occupation does not determine whether one is working ‘全職’ in that occupation, to avoid unnecessary argument or confusion, I would avoid using the English translation ‘full time’ for the time being, and focus on the Chinese term first.

32.  As I said, the respondent maintains that, properly understood, ‘全職議員’ cannot be claimed if the councillor is otherwise receiving remuneration from a paid job.  He emphasises that if the councillor provides work or services on a gratuitous basis, then he is actually providing some sort of free services, and therefore he can still legitimately claim himself to be a ‘全職議員’.  But not otherwise. 

33.  As I said, there is no legal or dictionary definition for the term.  In the evidence, it is important to note that not only is the respondent’s definition not shared by the petitioner, it is also not shared by quite a few candidates and councillors.  Thus, according to the information provided by the respondent himself, out of those 34 Shatin district councillors who were successfully re-elected in the 2007 election, there were nine who called themselves a ‘全職議員’ or ‘全職區議員’.  And out of those nine, four actually had other occupations.

34.  And according to an aide-memoire handed up by Mr Lee during his final submission, the contents of which are not disputed and are in any event backed by documentary evidence before the Court, there were at least eleven candidates who claimed themselves to be a ‘全職議員’ (and the like) by way of occupation in their election materials in the 2007 election in different constituencies.  And these candidates came from different political parties, including the respondent’s own party. 

35.  Both on the evidence available and according to the Court’s own understanding of the usage of the terms ‘全職議員’ and ‘全職’ in Hong Kong, the absolute requirement maintained by the respondent that the person in question must not have any other paid job does not form part of the general understanding of those terms.

36.  As mentioned, on the two occasions where the term ‘全職’ is statutorily defined, the statutory definitions do not require that the accountant or employee in question must have no other paid work.  Rather, in the case of the employee, the definition focuses on the quantity of time the employee spends with the employer in question with whom he is said to be in full time employment.  In the case of the accountant, the point of emphasis is, as described, on whether the accountant is free to devote substantially the whole of his time during normal office hours to provide his services as a certified public accountant (practising) and whether he is engaged in some other non-public accountancy employment under which he is bound to devote the whole or substantially the whole of his time during normal office hours to that other employment.

37.  As regards my earlier point that ‘全職’ is, at least in Hong Kong, generally translated as and understood to be equivalent to ‘full time’ in English, and insofar as the term ‘full time’ in English assists in our understanding of the true meaning of ‘全職’ in Chinese, ‘full time’ does not, according to my own understanding, require that the person in question has no other/outside paid job.

38.  Moreover, as a matter of general usage in Hong Kong, the term ‘全職’ is often used in contrast to the term ‘兼職’, which is generally understood as meaning a part time activity or part time job.  In Hong Kong, as a matter of general usage, quite a few people who have a ‘全職’ work may also have a ‘兼職’ job outside of the normal working hours of their ‘全職’ occupation.

39.  In fact, in the above usage, ‘全職’ simply means full time, whereas ‘兼職’ means part time.  Although I have tried to avoid those English terms when discussing the meaning of ‘全職’ in the present case, as already mentioned, as a matter of general usage in Hong Kong, ‘全職’ is generally understood as meaning or equivalent to ‘full time’ in English, whereas ‘兼職’ means or is taken as equivalent to ‘part time’ in English.  And certainly, so far as the term ‘full time’ or ‘full time work’ is concerned, I do not think that having a part time paid job would necessarily mean that the person in question cannot or does not have a full time job or cannot call that job his ‘full time’ job.  But of course, when the part time job demands or takes up so much of the time, energy and attention of the person in question so that his performance of his ‘full time’ job is affected or significantly affected, whether the part time job can still be properly called a part time job may become an issue.  Likewise, whether his so-called ‘full time’ job is really a ‘full time’ one may also be in doubt.

My view

40.  In my view, whether the term ‘全職’ can be properly used to describe a person’s work or occupation must be determined by looking at the entire circumstances, including the primary or main job, or ‘full time’ job that he is doing, the nature and responsibility of that job, the normal working hours (if any) of that job, the care and attention as well as time that are required of him to fully discharge the normal responsibility of that job, his income from that job, as well as the nature, job requirement, normal working hours (if any) and income (if any) of the side job in question, the time and attention that such side job requires of the person, and the extent (if any) to which that side job affects the normal discharge of the person’s responsibility under his main/primary/‘full time’ job.  It is impossible to provide an exhaustive list here.  Nor is it necessary to provide any definition.  It is the overall understanding or impression that really counts.  Whether the person is receiving remuneration from the side job in question is just one of the matters to be taken into account.

41.  In particular, in relation to the term ‘全職議員’, it is quite often used to distinguish such a councillor from those councillors who have other substantial occupations or businesses at the same time, such as being a banker, an executive director in a big corporation, a practising professional (a lawyer, an accountant or a doctor) or a businessman.  And we do have quite a few of these councillors in the District Councils and the Legislative Council in Hong Kong, particularly those from the functional constituencies.  Whilst the latter group ofcouncillors may well not be regarded generally as ‘全職議員’ in the local usage of the term, who else may properly claim himself to be a ‘全職議員’ is really a matter of overall impression, and a matter of extent and degree, depending on the entire circumstances of each individual case. 

Present case

42.  On the facts of the present case as I have found them, I have no doubt that the petitioner could properly, without abusing the term, claim himself to be a ‘全職議員’ by way of occupation.  Although the electorate may have high expectations of those elected to their offices, a districtcouncillor has no ‘fixed’ responsibility and there are no ‘normal’ working hours.  However, as I have found, the petitioner has worked diligently as a district councillor.  He has discharged his responsibility and served his constituency on a basis which can only be described as a full time one.  He attended most if not all of the District Council meetings.  He ran his own district councillor’s office and attended it on a daily basis, spending a substantial amount of time in the office Monday to Friday.  There is no suggestion that his work as a councillor was affected in any way by his consultancy work.

43.  His funeral service consultancy was nothing more than a part time side job.  It was a simple job.  It required relatively little time and effort of him.  It never interfered with his full time work as a councillor.  It brought in relatively humble incomes.  The number of referrals per year was small.  In 2006/2007, he made eleven referrals involving twelve deceased persons, thus averaging one deceased person in a month.  In 2007/2008 up to election day on 18 November 2007, he made seven referrals in 7.5 months, thus averaging less than one referral per month.  He did not maintain an office for his consultancy work; he essentially had no business set up for that work.  Apart from some printed name cards which he distributed when circumstances were appropriate, he did not run any promotional activities for his work.  He obtained work through his personal connections. 

44.  In those circumstances, in my judgment, the petitioner did not misdescribe his occupation by claiming to be a ‘全職議員’.  It must follow that he did not seek to conceal his occupation as a funeral service consultant in the election materials, nor did he seek to obtain others’ trust and confidence by way of deception.  He did not engage in any dishonest conduct.  In other words, the allegations of fact made against the petitioner by the respondent in his first leaflet cannot be justified and are materially false or misleading.

45.  That effectively disposes of the present case. 

Alternative basis

46.  But I would go further.  As mentioned, terms like ‘全職議員’ and ‘全職’ are not legally defined or defined generally.  Even assuming that I have been wrong with my general understanding of those terms in Hong Kong and it does not represent the only proper understanding of the terms, I will still say that put at the lowest, the terms are capable of different understanding by different people.  In other words, reasonable people do differ in their understanding of those terms.  Put another way, there are people like the respondent who think that having a pay element would immediately disqualify one from using those terms.  There are also others like the petitioner, and some of his fellow candidates in the 2007 election, who think otherwise.  The respondent’s understanding of those terms, though (ex hypothesi) a proper and reasonable understanding, is not the only proper and reasonable one.  And that, in my view, is equally fatal to the respondent’s case even if I am wrong with my primary conclusion.

47.  This is because in those circumstances, when, as I have found to be the case, the petitioner genuinely (and reasonably) believed in his own definition of the term ‘全職議員’, he cannot possibly be said to have concealed his occupation, obtained others’ trust and confidence by deception, or been guilty of dishonest conduct. 

48.  Put another way, these allegations made against the petitioner in the respondent’s first leaflet would likewise be materially false or misleading, even on this alternative basis.

S 26(4)

49.  This brings me to s 26(4) of the Elections (Corrupt and Illegal Conduct) Ordinance, which provides that in a prosecution for an offence of having engaged in illegal conduct under sub-section (1) or (2), it is a defence to prove that the defendant believed on reasonable grounds that the statement was true at the time when it was made.

50.  In Chung Ming v Chow Ping Tim, HCAL 11/2004, Chung J (9 July 2004), another election petition, the judge said he was inclined to think that s 26(4) can only avail a person in a criminal prosecution, but not in an election petition (para 46).

51.  I need not express any final view on the matter.  Even if s 26(4) is applicable in an election petition, it does not absolve the respondent in the present case.  Under my primary conclusion, the respondent was simply wrong with his understanding of the term ‘全職議員’.  Although he was genuinely mistaken, that by itself does not amount to a reasonable ground to believe that what he said was true (ie misrepresentation, concealment, deception, dishonest conduct).  A s 26(4) defence cannot be made out on that basis.

52.  Under my alternative basis for decision, whilst the respondent might have reasonable grounds for believing, according to his own understanding of the term ‘全職議員’, that the petitioner was not a ‘全職議員’, he still did not have reasonable grounds for making the allegations against the petitioner in his first leaflet.  The respondent must have known or ought to know that there were others who had a different understanding of the term ‘全職議員’, and he could not therefore reasonably conclude that the petitioner was not one of them but was somebody who happened to hold the same understanding of the term ‘全職議員’ as he did, so that he was guilty of making a false representation according to that understanding, of concealing his occupation, of obtaining others’ trust and confidence by deception and of dishonest conduct.  In other words, no s 26(4) defence is made out either.

Standard of proof

53.  I have not lost sight of the fact that s 26(2), if established on the criminal standard of proof (which is not the case here), amounts to a criminal offence.  This is not a criminal case and the civil standard is the applicable standard; yet one must apply the civil standard in accordance with the principles enunciated in Re H [1996] AC 563.  See also Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576, 601 et seq.  However, it can be seen from my analysis above that this case does not really turn on the burden or standard of proof, although I have firmly borne in mind where the burden of proof lies, what the standard of proof is and how it should be applied in light of the Re H principles, in dealing with the facts and evidence in the present case.

Findings

54.  For the above reasons, I find that the respondent has indeed published by way of his first leaflet materially false or misleading statements of fact about the petitioner, namely, statements concerning the character and previous conduct of the petitioner, by accusing him of making a false representation, of concealing his occupation, of obtaining others’ trust and confidence by deception and of engaging in dishonest conduct. 

55.  It is plain from the evidence that they were made to promote the election of the respondent and to prejudice the election of the petitioner.  And I so find.

56.  In other words, I find that the respondent has engaged in illegal conduct at or in connection with the election.

Outcome

57.  The District Councils Ordinance does not say whether, where a ground for questioning an election to return an elected member of the District Council provided in s 49(1) is made out, the Court must determine that the person whose election is being questioned was not duly elected, regardless of the actual circumstances of the case, including the election results.  Mr Lee in his final submission did not wish to go so far as to say that the Court must in every such case so determine.

58.  For my part, I would prefer to leave the point open.

59.  But one thing is clear.  On the facts of the present case, particularly bearing in mind that the (false) allegations made against the petitioner were serious ones, the first leaflet was printed in a large number and distributed widely in the constituency in the last week of the election campaign, and the election result was a really close one, the Court should determine that the respondent has not been duly elected by reason of the illegal conduct in question. 

60.  I so determine.

61.  However, on the evidence before me, it is impossible to determine whether the petitioner (he being the only other candidate) would have won in the election but for the misrepresentations.  In those circumstances, I would simply determine that no other person was duly elected instead.  See s 55(2) of the District Councils Ordinance.

62.  The parties are agreed that costs should follow the event.  I order that the costs of this petition (including any costs previously reserved) be paid by the respondent to the petitioner, to be taxed if not agreed.  With all due respect to counsel whose assistance to the Court is gratefully acknowledged, I am not prepared to saddle the respondent further with a certificate for two counsel.

63.  I am also grateful to the assistance rendered by Mr Wu to the Court.