WONG CHIU YAU v. CHIEF ELECTORAL OFFICER

HCMP 100/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 100 OF 2007

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J U D G M E N T

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1. The Applicant was a candidate in the Election Committee Subsector Elections held in December 2006.  Under the law he has to file a return and declaration of election expenses and donations pursuant to section 37 of the Election Corrupt and Illegal Conduct Ordinance.  One of the requirements under section 37 is provided for in subsection (2)(b)(v), namely, that the return has to be verified by a declaration.

2. The Applicant sent a return by post on 9 January that was received by the election officer on 12 January.  The deadline for filing the return was 13 January.  Unfortunately, there was an omission in the return, in that, although the Applicant had signed the return and also the form of declaration, he did not notice that apart from signing himself, the declaration has to be made before a Commissioner for Oaths or Justice of the Peace or a solicitor.  Therefore, the return that was sent to the election office by post on 9 January did not comply with the requirement of the law.

3. The Applicant was notified about this omission in the evening at around 6 o’clock on 12 January, that is on the same date when the election office received the return.  12 January was a Friday and, it was after business hours that the Applicant received this notice of omission.  13 January was a Saturday.  Due to other commitments, the Applicant was unable to rectify the omission before the deadline.  At that time he thought he might deal with it on Monday and he did try to deal with it on Monday.  However, on Monday, he was told that it was too late and he has to make an application to this court for relief.

4. Under section 40 of the Elections Corrupt and Illegal Conduct Ordinance, if a candidate has failed to lodge an election return as required by section 37 before the deadline he can apply to the court for an order allowing the candidate to lodge the election return within such further period as the court specifies. 

5. The requirement under section 40 is set out in section 40(4), where it is provided that on the hearing of an application the court may make an order sought but only if it is satisfied that the error or false statement was due to (a) misconduct of an agent or employee of the Applicant, or (b) inadvertence or an accidental miscalculation by the Applicant or any other person, or (c) any reasonable cause and it was not due to the Applicant’s bad faith.

6. There is no question of the Applicant acting in bad faith here.  As I see it, the Applicant has tried to remedy the situation, albeit belatedly, and he did file an application for relief immediately on Monday, namely, on 15 January 2007.

7. Miss Cheung, who appeared this morning on behalf of the  various law enforcement authorities, accepted that the Applicant was not acting in bad faith.  The question is whether the Applicant can demonstrate to the court that he was acting inadvertently or with any reasonable cause.

8. Miss Cheung referred to the form of declaration provided for in the return, which clearly sets out the requirement of having a declaration and also providing for signature of the Commissioner for Oaths or Justice of the Peace or a solicitor.  On the other hand, the Applicant told this court this morning that he was under the misapprehension that it would be sufficient for him to sign himself, thus he was signing with a clear intention to make a declaration.  However, the requirement of the law is that in order to have a valid declaration, the signature of the declarant is not enough.  The declaration has to be made before either a Commissioner for Oaths or a Justice of the Peace or a solicitor.

9. Miss Cheung also helpfully referred this court to my own decision in Tsang Wai-ming HCMP3463 of 2003, 15 April 2004.  In that case, I examined what is the requirement of the law in terms of inadvertence.  I also laid an emphasis in that case on the distinction between cases where an applicant simply turn a blind eye or act recklessly as to the legal requirement and a case where the applicant has tried to understand what the legal requirement is but failed to get it correct.

10. Having applied my mind to the legal requirement to the facts of the present case, I think it is a borderline situation.  On the one hand, it can be said the Applicant should have realised that the requirement for a declaration is to have it signed before a Commissioner for Oaths or Justice of the Peace or a solicitor and, further, the Applicant had been told about his omission on 12 January and he had an opportunity to remedy the mistake before the deadline.

11. On the other hand, I must have regard to reality.  The Applicant explained that because of other commitments he was unable to rectify the situation on 13 January after he was being told.  Having reflected on the matter, I think this is understandable and I would not hold that against him, particularly in the light of the fact that he immediately took steps on the next Monday, ie on 15 January, to try to deal with the matter.

12. So the only question is whether I should reject this application because of the clear words set out in the form provided for in the return as regards the requirement of having the declaration signed before a Commissioner for Oaths, Justice of the Peace or a solicitor. 

13. Again, I have to say this is a borderline situation.  In the present circumstances I am prepared to accept the explanation of the Applicant that he was labouring under the mistaken belief that signature by himself is good enough.  I therefore accept that this is a case where the omission was due to inadvertence and not due to his bad faith.  Therefore, I can grant relief under section 40(1) and this is the order I propose to make.