HO CHUN YAN, ALBERT v. LEUNG CHUN YING AND ANOTHER

HCAL 85/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 85 OF 2012

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J U D G M E N T

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1.  By a motion dated 11 July 2012, the 1^st Respondent seeks to have the Election Petition presented on 5 July 2012 struck out, stayed and/or dismissed. As stated in the Affirmation of Leung Ping Chiu of 11 July 2012 filed in support of the motion, the grounds of the application are as follows,

(a) The Petition is time-barred;

(b) The allegations of false statements in the Petition do not provides any ground to claim that the 1^st Respondent was not duly elected at the 2012 Chief Executive Election;

(c) The Petition is prosecuted for political purposes.

As far as ground (a) is concerned, it was agreed amongst the parties that the court’s determination on the constitutionality of the 7-day time limit shall be treated as a determination on a basis similar to a determination on point of law as in an Order 14A application.  Though no formal Order 14A application has been taken out, this course is open because in addition to the power to strike out the 1^st Respondent is also relying on Rule 14 of the Chief Executive Election (Election Petition) Rules.  In England, the question of time bar, including human right challenges to the relevant time bar, has been determined under similar rule, see Miller v Bull [2010] 1 WLR 1861. 

2.  At the hearing of 15 August 2012, this court granted leave to the 1^st Respondent to add one more ground to support the motion.  The motion was amended accordingly.  The additional ground was labeled as the jurisdiction point at the hearing.  In essence, the argument is that by virtue of the assumption of the office of the Chief Executive by the 1^st Respondent on 1 July 2012, this court ceased to have jurisdiction to entertain the election petition in light of the constitutional position that only the Central People’s Government has the power to appoint and remove the Chief Executive.

3.  I refused leave to add the other grounds set out in the draft amended motion attached to the summons of 27 July 2012 as I did not consider those grounds as viable grounds for summary disposal of the petition, whether by way of striking out or stay or summary dismissal of the petition.  Further, if those grounds were to be canvassed, the Petitioner should be given the opportunity to file further evidence in response and this would delay the resolution of the motion.  This, in my judgment would not be appropriate as a matter of case management. 

The jurisdiction point

4.  I shall first deal with the jurisdiction point.  Mr Mok SC (who together with Mr Abraham Chan represented the 1^st Respondent) submitted that the purpose of an election for the Chief Executive and consequently the purpose of an election petition should be considered against the constitutional position of the Chief Executive.

5.  Article 15 of the Basic Law provides,

“The Central People’s Government shall appoint the Chief Executive … of the Hong Kong Special Administrative Region in accordance with the provisions of Chapter IV of this Law.”

6.  Article 45(1), which is in Chapter IV of the Basic Law, provides,

“The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election … held locally and be appointed by the Central People’s Government.”

7.  Therefore, the constitutional position is that the Chief Executive has to be appointed by the Central People’s Government [“CPG”]. This, according to Mr Mok, is highlighted under Section 3(1)(b) of the Chief Executive Election Ordinance Cap 569 [“CEEO”] which provides,

“The term of office of the Chief Executive shall …

(b) commence on the date on which he assumes office being the date specified for this purpose by the Central People’s Government in the instrument of appointment.”

8.  Further, since the Chief Executive is appointed by the CPG, he could only be removed from the office by the CPG.  This is highlighted by Section 4(c) of the CEEO.  A mechanism for removal of the Chief Executive is laid down in Article 73(9) of the Basic Law.  That again underscored the constitutional position that a Chief Executive can only be removed by the CPG. The impeachment procedure in the Legislative Council only culminates in a report to the CPG.  The authority and power to remove is vested in the CPG. 

9.  In this connection, Mr Mok relied on my judgment in Ex p Leung Kwok Hung HCAL 83 & 84 of 2012, 30 July 2012 paras 59 to 61.  What I said in that judgment was in respect of a judicial review seeking the removal of the Chief Executive based on Article 47(1) of the Basic Law.  I expressly refrained from commenting on the position in respect of election petition (see para 59).  Be that as it may, counsel submitted that the same reasoning must be applicable in respect of the court’s power in the determination of an election petition.  

10.  Counsel summarized the reasoning in that judgment and put it in the context of election petition at para 23 of his skeleton submissions,

“(1) Under the Basic Law, both the appointment and the removal of the CE are in the hand of the CPG.

(2) BL 73(9) provides the mechanism whereby the CE’s removal process may be initiated within the HKSAR, culminating with the CPG’s decision whether or not to act on the Legislative Council’s motion of impeachment. (The CPG may also remove a CE on its own initiative, or upon the voluntary resignation of the CE.)

(3) BL 73(9) recognizes that the removal of CE is not purely a legal matter turning on whether the charge against him is made out. It also recognizes the constitutional position that the appointment of the CE is in the hand of the CPG.

(4) In the light of the above, it would be extraordinary that such mechanism for the removal of CE could be circumvented by a parallel challenge by election petition.”

11.  Mr Mok submitted that the function and purpose of the election was to select a candidate for appointment by the CPG.  Once the appointment had been made and taken effect, the purpose of the election had been spent.  Thus, counsel submitted, there is no utility in proceeding with the election petition.

12.  In the present case, the declaration of return was made by the Returning Officer on 25 March 2012.  The instrument of appointment was executed by the Premier on 28 March 2012.  It was delivered to the 1^st Respondent on 10 April 2012.  He assumed office on 1 July 2012. 

13.  Mr Wong SC (appearing together with Mr Pao for the Secretary of Justice) did not support Mr Mok’s contention.  Though Mr Wong accepted that the court has no jurisdiction to remove a Chief Executive even if it were to determine that he was not duly elected, counsel submitted that this does not mean the court has no jurisdiction to entertain the election petition after the assumption of office of the Respondent.  It only means that relief granted by the court would not have the effect of removing the Respondent from the office.  It does not mean that the determination of the court would have no utility.  Mr Wong contended that a determination may serve the following purposes,

(a) If the court shall determine that the Respondent was duly elected, he would be vindicated;

(b) If the court shall determine that the Respondent was not duly elected, it would then be up to the CPG to decide, taking other factors into account, including political considerations which are not relevant for the determination of the legal merits of petition, what course should be taken.  In the process, the CPG would take account of the court’s judgment in the election petition.

14.  In my judgment, Mr Wong is correct in his analysis.  The absence of jurisdiction to remove a Chief Executive does not mean that the court has no jurisdiction to entertain an election petition after his assumption of office.  Section 38 of the CEEO clearly envisages the possibility of a determination of an election petition after the assumption of office by a Chief Executive.  The court’s duty in the hearing of an election petition is clearly set out in Section 37 of the CEEO: to make a determination whether a returned candidate is duly elected.  Political consequences following from such a determination is not a matter for the court. 

15.  I do not agree with Mr Mok’s submission that the purpose of an election is spent once an appointment of the Chief Executive had taken effect upon his assumption of office.  Apart from selecting a candidate for the appointment by the CPG, the election also serves the important function of providing a local mandate for the holder of the office of Chief Executive.  It is a manifestation of the following prescription in Article 45 of the Basic Law,

“The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.”

16.  This is an important feature in the constitutional framework for “One Country Two Systems”.  Such a mandate could only be achieved if the Chief Executive is duly elected locally.

17.  Mr Mok then submitted that if the court were to entertain the election petition after the Chief Executive has assumed office, there would be risk of conflicting decisions between the determination of the court and the decision of the CPG on whether to remove a Chief Executive who was determined to be not duly elected.  According to counsel, the conflict arises from the fact that in the determination of the election petition, the court may have to rule on an application for relief under Section 31 of the ECICO.  That section gives the power to grant relief for conduct which, but for the relief, would be illegal conduct.  The power of the court is set out at Section 31(2),

“(2) On the hearing of an application under subsection (1), the Court may make an order relieving the applicant from penalties and disqualifications that are imposed by, or could be imposed under, an electoral law for any act or omission of the applicant that, but for this section, would be illegal conduct at an election, but only if the Court–

(a) is satisfied that–

(i) the act or omission was due to inadvertence, an accidental miscalculation or any reasonable cause and was not due to bad faith; and

(ii) where the Court requires notice of the application to be given in Hong Kong, the notice has been given; and

(b) believes it to be just that the applicant should not be subjected to one or more of those penalties and disqualifications.”

18.  Mr Mok submitted that the effect of the grant of relief would tantamount to a ruling that the conduct should not be regarded as illegal conduct because of the reference to “an act that, but for this section, would be illegal conduct” in subsection (1).  Thus, if relief were granted, such act cannot be relied upon as illegal conduct for the purpose of Section 32(1)(a)(iv) of the CEEO to support an election petition.  I shall assume (without deciding) this is correct. 

19.  Mr Mok submitted if the court were to conclude that relief should not be granted, it would mean that the court cannot be satisfied as to the criteria in sub-section (2).  That is correct.

20.  Counsel then submitted that such a conclusion may conflict with a decision of the CPG not to remove the Chief Executive despite a determination against the Chief Executive in an election petition as the court had expressed an opinion that there was no reasonable cause for the act in question.  With respect, I cannot accept this last proposition.

21.  As Mr Mok himself contended, the decision of the CPG in relation to the removal of a Chief Executive does not simply depend on the legal analysis on whether he is duly elected.  Once he has assumed office, with his team of principal officials appointed, and with his policies in various areas implemented, the CPG would have to assess the overall situation and the potential impact on Hong Kong before such an important decision can be made.  It is very much a political decision.  No doubt the CPG would have regard to the determination of the court and the reasons given by the court for the determination.  But the CPG can legitimately take account of other matters which have taken place since the election which are invariably political in nature.  Thus, the parameters for the CPG’s decision are quite different from those for the court in an election petition.

22.  As for the criterion of reasonable cause, that is only one of the grounds for granting relief.  The other grounds include inadvertence, accidental miscalculation.  Even if there is reasonable cause, relief would be refused if the court does not believe it to be just that the applicant should not be subjected to one or more of the penalties and disqualifications.  This is very much a matter of value judgment.  However, in the context of election petition, the matters that the court may consider in deciding whether it is just to grant relief are much narrower than the matters that the CPG has to consider in the political judgment on whether a Chief Executive should be removed from office.  The latter is a much broader question.  Though the judgment of the court is relevant, it cannot be determinative of that broader question which involves dimensions that are not the function of the court to take into account.

23.  Viewed thus, there is no conflict between the court’s exercise of its jurisdiction in the determination of an election petition and the power of the CPG in the ultimate decision as to the removal of a Chief Executive.  There is also no conflict between the court’s determination (even if it were a determination against due election) and the initial appointment of the Chief Executive by the CPG.  As at the date of appointment and the date when the appointment taking effect, the CPG was entitled to act on the basis that such candidate was duly elected by reason of the presumption in Section 29 of the CEEO.

24.  In short, there is no question of the court arrogating to itself the power of removal of the Chief Executive.  In this respect, an analogy can be drawn between the determination of an election petition and the exercise of the court’s criminal jurisdiction in the event that an incumbent of the office of Chief Executive is being prosecuted (and there is no suggestion that the Chief Executive enjoys any immunity from criminal prosecution during his term of office[1]). The determination of the criminal prosecution may trigger political consequences which may or may not lead to a decision by the CPG as to the removal of a convicted Chief Executive (whether following the impeachment procedure under Article 73(9) or otherwise).  But no one has suggested that by the exercise of such criminal jurisdiction the court arrogates to itself the power of removal of a Chief Executive.  It is difficult to see any reason why the determination of an election petition should be perceived differently.

25.  Therefore, I hold that the court has jurisdiction to entertain the election petition notwithstanding the assumption of office by the Respondent.

The 7-day time bar

26.  The 7-day time bar is laid down by Section 34(1) of the CEEO,

“An election petition questioning an election must be lodged within 7 working days after the day on which the result of the election is declared …”

27.  There is no provision in the CEEO providing for any judicial discretion to extend the time for lodging an election petition.  This is in contrast with the discretion to extend time (beyond the 30-day limit) for judicial review putting in issue, amongst other things, whether a candidate declared as elected can lawfully assume office under Section 9(2).  The discretion under Section 39(2) is as follows,

“The Court may upon application grant the leave to make an application for leave to apply for judicial review or commence proceedings after the expiry of the 30 days referred to in subsection (1) if it is satisfied that-

(a) the person making the first-mentioned application has used his best endeavours to make the second-mentioned application or commence the proceedings within the 30 days; and

(b) granting the leave applied for is in the interest of justice.”

28.  Further, in respect of acts required to be done under the CEE (Election Petition) Rules (as opposed to the lodging of the petition itself), there is power to abridge or extend time under Rule 20.

29.  In So Siu Chou v Chief Electoral Officer [2008] 1 HKCLRT 173, A Cheung J (as he then was) held in the context of District Councils Ordinance that there is no power to extend time for lodging an election petition.

30.  Subsequently in程樂蓀對黃靈新 HCAL 4 of 2012, 29 Feb 2012, again in the context of District Councils Ordinance, I expressed the view that such conclusion may need to be revisited in light of the decision of the Court of Final Appeal in Charles Mok v Tam Wai Ho (2010) 13 HKCFAR 762.  In Charles Mok, the Court of Final Appeal held that Section 67(3) of the Legislative Council Ordinance (which provided that the determination of the court in an election petition is final) is a restriction of the power of final adjudication of the Court of Final Appeal under Article 82 of the Basic Law and such restriction is constitutionally invalid as it fails to satisfy the proportionality test.  The Chief Justice said at para 48 of the judgment,

“… in Hong Kong, s.64(1) of the LCO … appears to me to be decisive in spelling out the precise nature of the role of the court in election petitions: the court has exactly the same functions as it has in relation to an ordinary cause of action within its jurisdiction.”

31.  There is a similar provision as s 64(1) of the LCO in the CEEO.  Section 36(1) of the CEEO reads,

“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.”

32.  In the present case, all the parties before the court accepted that, as a matter of conventional construction, the CEEO does not provide for any judicial discretion to extend the time for lodging an election petition.  The contentious issue is whether the 7-day time limit is constitutionally valid.  The constitutional right relied upon by Mr Lee SC (appearing with Mr Pun (on 27 August), Mr Tam and Mr Chim for the Petitioner) to challenge the time limit is the right of access to court under Article 35 of the Basic Law considered together with the right to free election. The following sub-issues have to be considered,

(a) Is the constitutional right of access to court engaged;

(b) If yes, does the restriction of the right of access by the 7-day time limit satisfy the proportionality test;

(c) If no, can the court adopt a remedial approach to provide for a similar residual judicial discretion to extend time along the same line as Section 39(2) instead of striking down the time limit in toto.

33.  I should add that if the court shall come to the conclusion that there should be a residual discretion to extend time, it has been decided that the Petitioner should be given an opportunity to make a proper application for extension of time before a determination is made on such application.  Thus, the question of whether the Petitioner could satisfy the criteria in Section 39(2) shall not be addressed at this stage.

Is the right of access to court engaged?

34.  Relying on English and Commonwealth authorities, Mr Mok and Mr Wong contended that the 7-day time limit should not be characterized as a restriction to the right of access to court.  Instead, they contended that the 7-day time limit should be regarded as a condition precedent for the exercise of a statutory right to challenge an election.  At the heart of this submission is the premise that without the statutory provisions in the CEEO, there is no right to question an election by reference to the grounds set out in Section 32 of CEEO.  Since it is entirely a matter of statutory creation which enables such challenges to be made, it is open to the legislature to define the prerequisites for mounting the same including setting the 7-day time limit. 

35.  I do not propose to review all the cases cited by counsel.  There were indeed dicta in the authorities supporting this view.  In Williams v The Mayor of Tenby (1879) 5 CPD135, Grove J said the following with regard to the compliance with statutory requirements (including the form and the time of the presentation of a election petition) at p 136-7,

“Is that directory, or a condition precedent to the petition being entered? It seems to me to be a condition precedent, and indeed the Solicitor General admits that it is peremptory and could not be dispensed with by a judge or the Court.”

36.  In Devan Nair v Yong Kuan Teik [1967] 2 AC 31, the Privy Council observed that Williams v Tenby had stood the test of nearly 90 years and seems to be “plainly rightly decided”.  In that case, Their Lordships held that a statutory requirement for the service of election petition was mandatory and the failure to observe the same rendered the proceedings a nullity.

37.  In Rudolphy v Lightfoot (1999) 167 ALR 105, the High Court of Australia dismissed a petition lodged beyond the permissible time limit because the legal effects of the matters relied upon were not known to the petitioner within time.  The court said, at paras 10 and 11,

“…[The time provision] stipulates an essential condition or jurisdictional requirement for the Court of Disputed Returns. In particular, s 358(1) does not give rise merely to a defence of non-compliance which may be waived by a respondent to the petition or displaced by relief given by the Court of Disputed Returns.

… The 40 day requirement does not, to adapt the terms used by Windeyer J[2], ‘bar an existing cause of action’; rather ‘it imposes a condition which is of the essence of a new right’.”

38.  In 2003, the Court of Appeal in England held in Ahmed v Kennedy [2003] 1 WLR 1820 that the statutory requirement on notifying the respondents of the amount and nature of security “falls into that rare category of requirements, non-compliance with which makes the petition a nullity”.  Though the court found this result to be draconian, it had no jurisdiction to grant any extension of time and it would be a matter for the Parliament to consider whether such judicial discretion should be conferred.

39.  It should however be noted that in none of these cases was the matter considered against a constitutional right of access to court.  The implication of the characterization of a time limit as a jurisdictional condition in respect of access to court was discussed in Australia in the context of refugee review in Hocine v Minister for Immigration [2000] FCA 778.  French J said in response to a submission that the strict time limit was inconsistent with the nature of judicial power reposed by the Australian Constitution in the courts and such limit was beyond the power of the legislature,

“45. It has long been recognized that statutory time limits may be imposed upon the enforcement of rights independently existing or may be annexed by a statute to rights newly created by it. In the second case the limitation is part of the definition of the new right — ‘a condition which is of the essence of a new right’ — Australian Iron & Steel v Hoogland (1962) 108 CLR 471 at 488 …

46. … The definition of jurisdiction by imposition of a time limit does not of itself involve a direction to the Court about the manner and conduct of its exercise of that jurisdiction.  To that extent such limitations are of the same character as the limitations upon jurisdiction by reference to available grounds of review which were held in Abebe[3] to be a valid exercise of legislative power. …”

40.  In England, in the context of election petition, a different conclusion was reached by Tugendhat J in Miller v Bull [2010] 1 WLR 1861.  Like Ahmed v Kennedy, the case concerned a failure to comply with the requirement to serve notice on the respondent the amount and nature of security in an election petition.  The petitioner sought an extension of time.  Though the relevant rule had been amended since Ahmed v Kennedy, Tugendhat J held that the amendments did not assist the petitioner.  That left him with an argument based on Article 6 of the ECHR (the right to a fair trial), the constitutional challenge.  The submission advanced on his behalf was that to be compatible with Article 6, the period prescribed under the relevant rule must, in short, satisfy what is known in Hong Kong as the proportionality test.  The court accepted that submission. In that case, counsel for the returning officer did not dispute that Article 6 applied.

41.  Tugendhat J analysed the nature of the interest at stake in an election petition as follows at para 43,

“It seemed to me that the major interest at stake in an election petition is not the private right of a petitioner, but the rights of the public. There is a public interest that there should be free elections held "under conditions which will ensure the free expression of the opinion of the people": see article 3 of the First Protocol to the Convention and Schedule 1 to the 1998 Act[4]. This principle has long been recognised in English law. The Statute of Westminster 1275 (3 Edw 1, c 29) (“elections ought to be free ...”) and article 8 of the Bill of Rights 1689 (“That Election of Members of Parliament ought to be free”) are both in force to this day. For there to be free elections there must be a procedure for determining what opinion the people have expressed in those cases where an election is questioned, and for elections to be declared void in appropriate cases.”

42.  The relationship of free election and access to court by way of election petition was highlighted at para.46,

“There is no means by which the public interest in ensuring that there is a proper opportunity to question elections may be vindicated, other than through giving effect to the right of access to the courts afforded to the individuals identified in section 128.”

43.  Tugendhat J held that the time limit in that case was disproportionate and incompatible with Article 6 and Article 3 of Protocol 1.  As a result, the rule had to be read down as being subject to the court’s power to grant extension of time. Extension of time was granted.

44.  As noted at para 57 of the judgment, the case was not about the strict compliance with the time limit for presenting a petition and the judgment did not relate to such time limit.  One can readily see a difference in terms of the application of the proportionality test between different kinds of time limits.

45.  Yet, for the purpose of this part of the arguments, the significance of this judgment lies in its holding that the right to fair trial under Article 6 is engaged.  It represents a departure from the position that the statutory requirements for election petition were analysed solely qua condition precedents of a right created by statute.  The constitutional underpinning of the public interest in the right to free election, read together with the right to fair trial, provide a new perspective as to the jurisprudential basis of the court’s jurisdiction over election petition and the role of the court in hearing the same.  As Tugendhat J observed at para 76, hitherto the human right aspects had not been addressed in the English jurisprudence,

“Although the 1998 Act had been in force for some time by the date in May 2002 when the petitions in Ahmed v Kennedy [2003] 1 WLR 1820 were presented, no submissions appear to have been made to the court made under that Act.”

46.  With respect, I find the analysis of Tugendhat J to be more relevant for the situation in Hong Kong as compared with that of French J.  The issues raised in Hocine v Minister for Immigration [2000] FCA 778 do not focus on the right of access to court in the context of election petition (as it was a case about refugee review).  The constitutional challenge was considered in that case more in terms of the legislative incursion of judicial power than as a matter of access to court as a constitutional guarantee for free and genuine election.

47.  Some support for the approach of Tugendhat J can be found in General Comment 25/57 by the United Nations Human Rights Committee in respect of Article 25 of the ICCPR (viz Art 21 of the Hong Kong Bill of Rights), at para 20,

“An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartiality and in accordance with established laws which are compatible with the Covenant. … There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes.…”

48.  Can the same analysis be applied in our case? It depends on two further questions,

(a) Should the court apply the same approach in respect of election of Chief Executive, the head of the executive arm of the government, as opposed to the election of members of legislative council?

(b) Should different considerations apply in respect of the time limit for lodging an election petition (as opposed to the time limit for other steps to be taken after such petition has been duly lodged)?

49.  Most of the cases cited before me are cases about election of members of the legislature or members of local governments.  They are not about the election of the head of the executive arm of the government. The English cases supporting what I call the condition precedent analysis were guided by historical developments in England.  Before 1868 when the Election Petitions and Corrupt Practices Act was enacted, the Parliament in the United Kingdom had exclusive jurisdiction over disputes in parliamentary elections.  The settling of such disputes was regarded as a matter of parliamentary privilege which the court of justice should not interfere.  The impact of such historical background still lingers on.  Thus Section 157(2) of the Representation of the People Act 1983 provides,

“Subject to the provisions of this Act and of the rules made under it, the principles, practice and rules on which committees of the House of Commons used to act in dealing with election petitions shall be observed, so far as may be, by the High Court and election court in the case of election petitions …”

See also paras 22 and 23 of Ahmed v Kennedy [2003] 1 WLR 1820.

50.  But it should not be thought that election disputes had always been within the sole and exclusive jurisdiction of the Parliament until 1868.  A historical account on the English practices in handling election disputes can be found in a research paper by Dr Caroline Morris of the Queen Mary College, University of London, From “arms, malice, and menacing” to the courts: Disputed elections and the reform of the election petitions system[5].  According to Dr Morris, until the developments in the late 17^th century, the courts were exercising jurisdiction over election disputes concurrently with the House of Commons and sometimes conflicting decisions were made.  The developments in the late 17^th century culminated in the following events,

“The House then passed a resolution in 1689 that ‘after a return is made into the crown office of members to serve in parliament, the same shall not be altered by the sheriff or clerk of the crown or any other but the House.’ In 1695 the Parliamentary Elections (Returns) Act settled any doubts that might still remain over the question of jurisdiction in Parliament’s favour by referring to the sole right of Parliament to decide returns, and providing that any determination by another body would be deemed to be a false return, upon which the impugned candidate could sue. The judiciary’s exclusion was complete by the 1702 case Prideaux v Morrice, where a unanimous four-judge bench stated that ‘the judging of the right of elections belongs to the Parliament, that is, the House of Commons; and that is the proper jurisdiction for determining such matters’.”

51.  Thus the right to challenge an election return in court is not a new creation by statute in 1868.  However, it is correct to say that the modern jurisdiction of the court in determining election petitions is statutory in nature.  Mr Mok also laid emphasis on the statutory nature of the jurisdiction even in days before 1689.  

52.  So much for the digression into British history. The British political system does not have the equivalent to our election for Chief Executive.  Prior to the resumption of sovereignty in 1997, Hong Kong did not have a locally elected Chief Executive.  Local election as a method for selection of Chief Executive is a creation of the Basic Law.  Article 45(3) of the Basic Law provides that the specific method for selecting the Chief Executive is prescribed in Annex I.  Para 1 of Annex I reads,

“The Chief Executive shall be elected by a broadly representative Election Committee in accordance with this Law and appointed by the Central People’s Government.”

53.  Though the 2012 Chief Executive election is not an election by universal suffrage, as envisaged by Article 45 it is an interim phase with the ultimate aim that there would be “selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures”.

54.  The Standing Committee of the National People’s Congress in a Decision adopted on 29 December 2007 [“the 2007 Decision”] expressed the following view with regard to the election of Chief Executive,

“that the election of the fifth Chief Executive of the Hong Kong Special Administrative Region in the year 2017 may be implemented by the method of universal suffrage”.

55.  The 2007 Decision provided for preparations for such election of the Chief Executive in terms of the amendment of Annex 1.

“2. At an appropriate time prior to the selection of the Chief Executive of the Hong Kong Special Administrative Region by universal suffrage, the Chief Executive shall make a report to the Standing Committee of the National People’s Congress as regards the issue of amending the method for selecting the Chief Executive in accordance with the relevant provisions of the Hong Kong Basic Law and “The Interpretation by the Standing Committee of the National People’s Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China”; a determination thereon shall be made by the Standing Committee of the National People’s Congress.  The bills on the amendments to the method for selecting the Chief Executive and the proposed amendments to such bills shall be introduced by the Government of the Hong Kong Special Administrative Region to the Legislative Council; such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive and they shall be reported to the Standing Committee of the National People’s Congress for approval.”

56.  The Standing Committee further expressed the following view,

“The Session is of the view that in accordance with the provisions of Article 45 of the Hong Kong Basic Law, in selecting the Chief Executive of the Hong Kong Special Administrative Region by the method of universal suffrage, a broadly representative nominating committee shall be formed. The nominating committee may be formed with reference to the current provisions regarding the Election Committee in Annex I to the Hong Kong Basic Law. The nominating committee shall in accordance with democratic procedures nominate a certain number of candidates for the office of the Chief Executive, who is to be elected through universal suffrage by all registered electors of the Hong Kong Special Administrative Region, and to be appointed by the Central People’s Government.”

57.  In his explanation to the Standing Committee before the adoption of the 2007 Decision, Deputy Secretary-General of the Standing Committee of the National People's Congress, Mr Qiao Xiaoyang referred to the following as a proposed timetable for Hong Kong’s constitutional development,

“The election of the fifth Chief Executive of the Hong Kong Special Administrative Region in the year 2017 may be implemented by the method of universal suffrage; that after the Chief Executive is selected by universal suffrage, the election of the Legislative Council of the Hong Kong Special Administrative Region may be implemented by the method of electing all the members by universal suffrage.”

58.  The Deputy Secretary-General also explained that this timetable is compatible with the criterion in Article 45(3) of the Basic Law,

“The decision that universal suffrage for selecting the Chief Executive and for the election of all the members of the Legislative Council by universal suffrage may respectively take place in 2017 and thereafter, is consistent with the principle of gradual and orderly progress and in keeping with the actual situation in Hong Kong.”

59.  Subsequently, based on this timetable, a proposal was made to change the composition of the Election Committee for the election of the Chief Executive in 2012.  The proposal was passed in the Legislative Council and consented upon by the Chief Executive.  It was then reported to and approved by the Standing Committee of the National People’s Congress.

60.  Against such background, even though the 2012 Chief Executive election was not by universal suffrage, it is still a step in the gradual and progressive development towards that ultimate aim which, according to the timetable in the 2007 Decision, may be materialized in 2017.  Even though Article 21 of the Hong Kong Bill of Rights is not applicable in full[6], the concept of free election (“freely chosen representatives” and “free expression of the will of the electors”) is applicable to an election pursuant to Article 45. 

61.  In respect of such an election, it is difficult to see why the fundamental safeguards for free election should not be applicable.  These safeguards are implicit in every election for public office held in Hong Kong, including an election pursuant to Article 45 of the Basic Law notwithstanding that it is not yet an election by universal suffrage.  Such safeguards include, as we have seen, the availability of independent and judicial scrutiny of the electoral process and, to the extent that restrictions are imposed on such scrutiny, the right of access to court is involved. 

62.  The CEEO only came into our statute book in 2001. But it does not mean that prior to 2001 the court has no role to play in respect of the scrutiny of a Chief Executive election.  Judicial review was always an option.  

63.  Sections 38 and 39 of the CEEO clearly envisage that the return in a Chief Executive election can be challenged by proceedings other than election petition.  These provisions do not specify the grounds of such potential challenges and unlike the statutory remedy of election petition under Section 32, such challenges are not created by statutes.  Section 39(1)(a) explicitly refers to judicial review which is largely a matter of common law remedies.

64.  Though I have held in Ex p Leung Kwok Hung HCAL 83 & 84 of 2012, 30 July 2012 that by reason of Section 32 challenges that come within the permissible scope of an election petition must be brought by way of election petition, it does not mean that if the statutory remedy of election petition were not promulgated common law could not embrace similar challenges by way of judicial review.  The essence of my decision is that Section 32 effectively excludes similar challenges from the scope of judicial review.

65.  The submission of Mr Mok and Mr Wong is that the non-compliance with the conditions in Section 32, including the failure to observe the 7-day time limit, is a substantive bar to the establishment of a case for election petition and the right of access to court cannot assist the Petitioner.  In other words, his only right is the right conferred by Section 32 upon full compliance with its conditions.  The possibility of launching challenges by proceedings other than election petition and my above observation on the possible development of judicial review in the absence of Section 32 show that this contention is fallacious.

66.  Let us consider specifically a challenge based on a claim that the successful candidate had engaged in illegal conduct.  In the absence of Section 32, can such a challenge be made by way of judicial review? In my judgment, the answer is yes.  As we have seen, prior to the late 17^th century, the English courts had exercised jurisdiction in respect of disputed election returns.  The petitions were dealt with by way of the writ of scire facias in the Chancery and the writ of quo warranto in the common law courts[7]. Whilst such jurisdiction was swept away in the wake of the ascent of parliamentary privilege, no question of parliamentary privilege can arise in respect the election of a Chief Executive.  As a matter of principle, there is no reason why, if the legislature has not promulgated a statutory remedy by way of election petition, the court cannot embrace a public law challenge regarding the outcome of an election by way of judicial review. 

67.  As for the grounds of challenging an election based on illegal conduct, though illegal conduct is a statutory concept defined under the ECICO, there is no principle of public law which prevents a court from referring to the criteria for illegal conduct laid down in the ECICO in a judicial review questioning the outcome of an election.  After all, one of the objects of the ECICO, as spelt out in Section 3 of that ordinance, is “to ensure that, as far as practicable, elections to elect the Chief Executive … are conduct fairly, openly and honestly and are free from corrupt conduct and illegal conduct”.

68.  Before the enactment of the CEEO, at a meeting of the Legislative Council Panel on Constitutional Affairs on 19 Feb 2001, the Secretary for Constitutional Affairs informed members of the panel that ECICO provided the necessary protection against corrupt and illegal conduct in respect of a Chief Executive election before the enactment of the CEEO[8].

69.  Counsel submitted that the sanction provided by the ECICO is primarily criminal prosecution.  Whilst criminal prosecution is one means to deter illegal conduct, Part 4 of the ECICO contains provisions in other type of proceedings relating to such conduct.  As mentioned, Mr Mok referred to the power of the court to grant relief under Section 31.  Under Section 30, the court is empowered to declare a candidate to be duly elected in certain circumstances despite illegal conducts by his agent.

70.  The ECICO is part of the legislative framework under which elections, including a Chief Executive election, are to be held and administered.  Given the public nature of the Chief Executive election and its immense significance for the public administration in Hong Kong, it is logical and in line with our public law development that the court may entertain a challenge to a return in such election by reference to the prohibition against illegal conducts under the ECICO.  The importance of the integrity of elections to the rule of law in Hong Kong was highlighted by the Chief Justice in Mok Charles Peter v Tam Wai Ho [2012] 3 HKC 398 at paras 17 and 18,

“17. In a society governed by the rule of law, where there is a real separation of powers, proper elections to public bodies are of importance. This is recognized in the Basic Law and also in the Bill of Rights. … Elections therefore represent a valuable right and it is critical that those elected are truly representative of those who are entitled to vote for them.

18. The integrity of elections is entirely dependent on their being genuine, open, honest and fair.”

71.  Therefore, in the absence of Section 32, I have little doubt that our courts can entertain a public law challenge by way of judicial review to the return of a Chief Executive election by reference to the prohibition against illegal conducts under the ECICO.  However, because of Section 32, there is no need for our common law to develop a similar route of challenge by way of judicial review and this is the crux of my decision in Ex p Leung Kwok Hung HCAL 83 & 84 of 2012, 30 July 2012.

72.  The purpose of this analysis is to show it is wrong to contend that the right of access to court is not engaged because the remedy of election petition is a creature of statute and the legislature is free to define the preconditions for such remedy.  Our electoral law is premised upon the right of free election and, as the Chief Justice observed, free election means that those elected are truly representative of those who are entitled to vote for them.  An election of the Chief Executive under Article 45, even before it progresses to its ultimate aim of election by universal suffrage, is no exception.  The court has a constitutional duty to oversee a free election.  Though such duty can be restricted, such restriction has to satisfy the proportionality test.

73.  The remarks of the Chief Justice also highlighted the guarantee of the integrity of an election through the rule of law and separation of power.  Even in the context of an election petition, the court as the ultimate arbiter of questions of law plays the constitutional role as the guardian of the rule of law.  An analogy can be drawn with the role of judicial review as recently described by Baroness Hale in R (Cart) v Upper Tribunal [2012] 1 AC 663 at para 37,

“… the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law — that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise. …”

And as observed by Lord Dyson at para 122,

“… Prima facie, judicial review should be available to challenge the legality of decisions of public bodies. Authority is not needed (although much exists) to show that there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review. But the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law….”

74.  Viewed in this light, the holding of the Court of Final Appeal in  Charles Mok v Tam Wai Ho (2010) 13 HKCFAR 762 that the court has exactly the same role and function in hearing an election petition as in ordinary cause of action is of immense significance.  In determining whether a candidate is duly returned, the court does not simply resolve a dispute delegated to it by the legislature, it is also performing its constitutional role as guardian of the rule of law to safeguard the legality of those assumed elected offices.

75.  In other words, though the challenges questioning the election on the grounds set out in Section 32 of the CEEO have to be brought by election petition instead of judicial review, the constitutional right of access to court under Article 35 and the constitutional role of the court as the designated authority to exercise judicial power under Article 80 are engaged as in a challenge brought by way of judicial review.

76.  This analysis also provides the answer to the other question posed at para 48.  Whilst I can see that the justification for a strict time limit for the lodge of an election petition is obviously stronger than the time limit for service of a notice on security, this only goes to the actual application of the proportionality test in assessing whether the restriction is proportionate.  As far as the applicability of the proportionality test is concerned, the difference is immaterial.  Once it is concluded (as I did) that the constitutional right of access to court and the constitutional role of the court in overseeing an election are engaged, the proportionality test must be applied.

Does the 7-day time limit satisfy the proportionality test?

77.  The proportionality test was summarized by the Chief Justice in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 at para 28,

(a) The restriction or limitation must pursue a legitimate aim;

(b) The restriction or limitation must also be rationally connected to that legitimate aim;

(c) The restriction or limitation must also be no more than is necessary to accomplish that legitimate aim.

78.  There is no dispute that the first two criteria are satisfied.  Mr Lee accepted that at para 162 of the Form 86 filed in HCAL 84 of 2012 (which he adopted as part of his skeleton submissions, see paras 4 and 5 of his submissions of 13 August 2012). It was accepted that what the Chief Justice said at para 51 in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 in the context of an election petition for an election of members for the Legislative Council must apply, a fortiori, and perhaps with greater force, to the election of the Chief Executive.  The legitimate aim is the speedy determination of such an election petition.

79.  Both Mr Mok and Mr Wong submitted that the 7-day time limit is proportionate and they demonstrated by reference to the questions raised in the meetings of the Legislative Council when the CEE Bill was considered that such a time limit had received attention of members of the Council and deliberated upon.  As such, they submitted that the time limit should be regarded as a balance struck between the right of access to court of a petitioner and the public interest in having an election petition in a Chief Executive election determined speedily.  Though there is no provision in the CEEO which prescribed that such a petition must be determined prior to the assumption of office of the returned candidate, counsel submitted that the 7-day time limit was adopted with a view to achieve that in light of the 95 day timeframe in Section 10(1) of the CEEO.

80.  Though it is acknowledged that the striking of such balance is not a policy decision on socio-economic matter, counsel urged this court to adopt a similar approach as the one applied by the Court of Final Appeal in Fok Chun Wa v Hospital Authority [2012] 2 HKC 413 in the former context and accord a wide margin of discretion to the political judgment of the Legislative Council.  In short, the court should only interfere when the statutory time limit is manifestly without reasonable foundation.

81.  On the other hand, Mr Lee submitted that the 7-day time limit is disproportionate because,

(a) The administration has not justified the 95 day timeframe under Section 10(1);

(b) The assessment that the 7-day time limit is sufficient is flawed in that it fails to take account of necessary preparations other than time taken by counsel to draft a petition;

(c) Some matters providing the grounds for challenge could not be discovered within 7 days;

(d) There is no cogent justification for the differential treatment between election petition and judicial review challenging due election of Chief Executive under Section 39 of the CEEO and the explanation for such difference given to the legislature was plainly wrong.

82.  Mr Lee also submitted that in the present instance the court is concerned with fundamental rights and the court should be particularly stringent or intense in the application of the justification test. Mr Lee identified the fundamental rights involved as the right to free election under Articles 26 and 45 and the right of access to court under Article 35 buttressed by the constitutional role of the court as the judicial arm of the government under Article 80 of the Basic Law.

83.  At the request of the court, the Secretary for Justice helpfully produced a comparative table surveying the time limit for legal challenge and other relevant aspects in the election of head of state of various countries where the office-holder is elected through general elections: the United States of America, France, Germany, Russia, Singapore, India, Poland and Ireland.  The positions of other countries have also been examined but some of them do not have a comparable system and in the limited time available information in respect of some countries cannot be obtained.  I am greatly indebted to those responsible for compiling the table.

84.  Based on that survey, for all countries where the head of state is a popularly elected office, the permissible time limits for legal challenge are specifically regulated.  The shortest time limit is Poland where the time available for challenge by a protest lodged with the Supreme Court is 3 days from the date of announcement of the election result.  In Ireland, leave application has to be made and the time limit is 7 days.  After leave is granted, a petitioner has 3 days to lodge his petition.  The position in the United States of America depends on the states or region in question: for District of Columbia the time is 7 days; for Florida it is 10 days.  In France, the time limit is 10 days.  No information about time limit can be found in respect of the election of the President of Germany and the mechanism for challenge appears to be quite different.  In India, the time limit is 30 days.  In Singapore, the primary time limit is 21 days.  However, in respect of challenge based on allegations of corrupt practice or illegal practice involving payment of money, it is 28 days after the payment.  In respect of challenge based on other allegations of illegal practice, the time limit is 14 days.  The system in Russia also appears to be different.  The first level of challenge is by way of complaints to the Election Commission and the Commission must establish the result within 10 days.  After that, there is a time frame of one year for challenges to be made to the Supreme Court though the court’s decision would not automatically remove the president from office. None of these countries has any statutory provisions for extension of time for such challenges.

85.  The survey also examined the other relevant aspects of election law of these countries: period between election and assumption of office; the grounds of challenge; nature of remedy; immunity from suit during office; appeal from election court.  Amongst those countries surveyed, the only country where there is available concrete information as to appeal is Ireland.  In some countries, an election challenge in respect of the head of state is to be heard by the highest court in the country.

86.  As pointed out by Mr Wong, the position of the Chief Executive in Hong Kong is unique in that the appointment of the Chief Executive is in the hands of the CPG.  Also, I agree that one should not draw any conclusion as to the proportionality of a time limit by making simple comparison with time limits across countries.  I accept his submission that the time limit is a part of the electoral system and it must be considered against other relevant components in our electoral regime and our own constitutional order.  In particular, I was reminded that under Article 53(2) of the Basic Law, a Chief Executive must be selected within 6 months of the office becoming vacant.

87.  The first sub-issue I have to address, in the light of the submissions before me, is the appropriate standard of scrutiny.  I shall start the analysis by citing a dicta in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 at para 50 where the Chief Justice neatly summarized the function of an election petition,

“… an election petition engages the public interest and not only the interests of the election protagonists themselves. The public interest here consists of the electorate and indeed the community as a whole in having in place a properly and legally elected legislature. Further, an election petition involves substantive rights, and not merely procedural rights. These substantial rights are political in nature.”

88.  This was said in relation to an election of a member of the Legislative Council.  But it equally applies to the election of the Chief Executive.  In the preceding section of this judgment, I have explained why fundamental rights in terms of the constitutional guarantee of free election through the independent overseeing of it by a judicial process are engaged and how such guarantee is derived from arts. 45, 35 and 80 of the Basic Law and art 21 of the Hong Kong Bill of Rights.

89.  Once the fundamental nature of the rights involved is appreciated, the inaptitude of the application of the Fok Chun Wa approach in the present instance should be apparent.  The correct approach is the one espoused by the Chief Justice in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 at para 53,

“As a matter of approach to this aspect of whether a restriction or limitation goes too far, the court has often to look at competing interests. One must examine the nature of the constitutional provision in question against the legitimate aim that the relevant restriction seeks to address, and above all, bear in mind the public interest. In other words, a balancing exercise may be involved.”

90.  The Chief Justice also referred to the margin of appreciation to be accorded to the view of the legislature at paras 54 to 56.  His Lordship further elaborated on the true meaning of margin of appreciation in Fok Chun Wa at paras 62 to 64.  And I would quote from para 64,

“… The principle reflects the different constitutional roles of the judiciary on the one hand, and the executive and the legislature on the other. The role of the judiciary was succinctly (but accurately) described by Lord Hobhouse of Woodborough in Wilson v First County Trust (No 2) [2004] 1 AC 816 at 861 (para 131): ‘The judiciary is the part of government which has the responsibility for applying the law’. Where matters of state or community policy are concerned, these are matters predominantly for the Executive or the Legislature.”

91.  His Lordship put in a reminder at para 79 in Fok Chun Wa,

“…. Where the subject matter of the challenge has to do with fundamental concepts, in contradistinction to rights associated with purely social and economic policies, the courts will be particularly vigilant to protect the rights associated with such concepts, and consequently much less leeway or margin of appreciation will be accorded to the authority concerned. These fundamental concepts are those which go to the heart of any society. …”

92.  The position was summed up by the Chief Justice at para 81 in Fok Chun Wa,

“… Each case is of course approached seriously, only that the legal approach will inevitably differ depending on the circumstances of the case. Where core values or fundamental concepts are involved, these are areas where the courts have (for want of better terms) expertise and experience, and it is part of their constitutional duty to protect these values or concepts. In policy matters not involving these matters, the courts do not have this expertise or experience and, more important, it is not within its constitutional remit to determine matters of government or legislative policy, save where questions of legality arise. As Sir Anthony Mason NPJ put it in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 614 at p.601E (para 45) ‘the weight to be accorded to the legislative [and I would add, the executive and other authorities’] judgment by the court will vary from case to case depending upon the nature of the problem, whether the executive and the legislature are better equipped than the courts to understand its ramification and the means of dealing with it.’”

93.  There is therefore no absolute rule as to how much weight the court should attach to a legislative judgment.  Much depends on the subject matters at hand and the nature of constitutional rights or concepts that are engaged.  In every case, the court as the ultimate guardian of the rule of law has the constitutional duty to determine whether a statutory provision subject to challenge is constitutional compliant. 

94.  Further, when a legislative judgment is demonstrably flawed, the margin of appreciation has no significance.  Thus, in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 at para 68, the Chief Justice said,

“No explanation was given … to demonstrate the reason for this difference of approach. One cannot readily conceive of one. In the absence of a cogent explanation, it is difficult to escape the conclusion that the bar on an appeal in an election petition under the LCO has gone much further than is necessary to deal with the need to have election disputes quickly disposed of. Further, in these circumstances, the margin of appreciation can have little significance. Where, essentially, the legislation is inconsistent, there is great difficulty in understanding just what is it the court is asked to appreciate.”

95.  The difference in approach referred to was the difference between challenges by way of proceedings under Section 73 as compared with election petition within the regime under the LCO in respect of right of appeal from a determination in an election petition.  The inconsistency was pinpointed by the Chief Justice at para 67,

“… The point of importance for our purposes is that, whether under s73 or under the election petition procedure of the LCO, common to both may be a challenge to the qualification or eligibility of a member of the Legislative Council, whether to be elected to or remain in the Council. One would have thought the urgency in having to determine such issues ought to be the same under both procedures.”

96.  For another recent example in which a legislative judgment was shown to be flawed in the context of election law, see Wong Hin Wai v Secretary for Justice HCAL 51 and 54 of 2012, 21 June 2012. 

97.  It is well established that the burden rests upon those defending the constitutionality of a restriction of a fundamental right to show that the restriction is proportionate.  The competing public interests are: (1) the speedy determination of a challenge to the due election of a candidate; and (2) the guarantee for the integrity of the election.  As regards (1), speedy determination is actually the means to achieve finality in terms of the removal of any lingering doubts over the election result.  The target was that the Chief Executive shall assume office without such lingering doubt.  This is evidenced by the repeated references by the Secretary for Constitutional Affairs to “the time reasonably required for the court to deal with legal challenges” (including challenges by way of judicial review) within the time lapse between the expiry of term of office and the polling date[9]. 

98.  But one must not confuse the target with the public interest served by the speedy determination.  The target, at the highest, can only be an aspiration as absolute precision over the time taken by the legal proceedings cannot be achieved even if an election petition is lodged within 7 days.  For obvious reasons, the judiciary will deploy the necessary manpower and the court will exercise its case management power to achieve an expeditious determination of the matter.  However, in litigation there is always room for unforeseen developments which, despite due efforts on all concerned, prolong the time taken for the fair disposal of the case.  With two tiers of judicial determination, the time available for a fair determination of election petition is extremely tight, in particular in a case where a second round of election has to be held due to the fact that no candidate obtain more than 600 votes in the first round.

99.  Further, once it is acknowledged (as I did in the earlier part of this judgment) that a determination of election petition by the court after the assumption of office would not usurp the power of the CPG in appointment and removal of the Chief Executive, the reason for linking the permissible time for lodging an election petition with the 95 days time-frame is less compelling.  As a matter of fact, the instrument of appointment was executed by the Premier even before the expiry of the 7‑day limit.  It demonstrates that there is no necessary correlation between the appointment process and the final determination of the election petition.  

100.  On the other hand, irrespective of whether the petition can be finally determined before or after the assumption of office by the Chief Executive, there is still a strong public interest in the speedy determination of the petition.  The removal of any uncertainty or lingering doubt over the mandate stemming from the election should be achieved as soon as practicable.  It is this public interest that needs to be balanced against the public interest in allowing a challenge of election return in court to safeguard the integrity of the electoral process.  The crucial question is whether the 7-day time bar for election petition strikes a balance that is not disproportionate.   

101.  In answer to a question raised by a legislator on the time limit for lodging election petition at a meeting of the Bills Committee on 12 June 2001, the Deputy Secretary for Constitutional Affairs said,

“In view of the time constraints and importance of CE election, the Administration hoped that any election petition and appeal lodged could be dealt with as expeditiously as possible. … as the grounds on which an election petition could be lodged were clearly specified in clause 33(1), the proposed period of seven working days under clause 35(1) was considered to be adequate. …”

102.  Later on, in the course of discussion on the time limit for judicial review or commence proceedings which put at issue whether a candidate declared to be elected could lawfully assume office, the legislator asked whether similar discretion for extension of time by court should be provided for election petition.  The response of the Deputy Secretary was as follows,

“… clause 40 was related to judicial review, while clause 35 was related to election petition. They differed in that the reasons for which an election petition could be lodged were less complicated, while important legal or constitutional issues might be involved in a judicial review. The time limit for applying for a judicial review was thus much longer. The Administration considered it unnecessary to provide a similar provision in respect of election petition.”

103.  This was the only justification provided for the difference in the time limit for judicial review and election petition in the materials relating to the legislative process for the CEEO placed before this court.  Based on such justification, in contrast with section 34 (dealing with election petition), Section 39 provides for a time limit of 30 days for judicial review and other proceedings with a residual judicial discretion to extend time if the court is satisfied that,

“(a) the person making the [application for extension of time] has used his best endeavours to make the [application for leave for judicial review] or commence the proceedings within the 30 days; and

(b)     granting the leave applied for is in the interest of justice.”

104.  With respect, I cannot accept this justification. Amongst the grounds specified under Section 32 for questioning an election by way of election petition, whilst there are grounds which are relatively simple (like the counting of votes and the material irregularity occurred in relation to the poll at the election), there are also grounds which could involve complicated issues of facts and law (like a constitutional challenge as to some disqualification provisions[10]). Though a challenge based on corrupt or illegal conducts usually raises question of facts, as illustrated by the arguments of Mr Mok on false statements (as discussed below) it may also raise complicated legal issues as well.  Issues that have to be considered in an election petition are not necessarily less complicated than those raised in a judicial review. 

105.  The public interest in the speedy determination of a judicial review which put at issue whether a candidate declared to be elected could lawfully assume office is the same as that in the speedy determination of an election petition.  We are therefore in a similar situation as the one facing the Court of Final Appeal in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 which led the Chief Justice to make this observation, “One would have thought the urgency in having to determine such issues ought to be the same under both procedures.” 

106.  Mr Mok and Mr Wong contended that the striking of the balance is a matter of political judgment.  Whilst the desirability for having speedy determination of proceedings (whether in election petition or judicial review) casting uncertainty over the electoral mandate of the Chief Executive is a matter of politics, whether there is any material difference in judicial review and election petition in terms of necessary procedural safeguards ensuring the expeditious progress of the matter is essentially a matter of case management.  In such a field, the courts, if I may respectfully say so, have much greater expertise than the executive or the legislative branches of the government. 

107.  I therefore come to the view that, as in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762, there is internal inconsistency in the CEEO with regard to the time limit for commencing proceedings.  Under such circumstances, like the Court of Final Appeal in that case, I cannot attach too much weight to the “political judgment” of the legislature in respect of the 7-day time limit.  Prima facie, the legislature must have decided that a time limit of 30 days with a residual judicial discretion to extend time in terms of the specified criteria is sufficient to serve the public interest in having a speedy determination of a challenge which cast uncertainty over the mandate of a Chief Executive before they enacted Section 39 of the CEEO.  There is no sound reason why the position should be different in the context of election petition.

108.  Mr Mok submitted that election petition may involve dispute of facts and the trial would involve cross-examination of factual witnesses.  Even though that was not a factor canvassed before the Legislative Council, it should still be taken into account in assessing whether the 7-day time limit is proportionate.  However, having taken this factor into account, I do not think the difference in the nature of evidence between the two procedures can justify the 7-day time bar for election petition, at least not an absolute time bar without any judicial residual discretion to extend time like that in Section 39.  The scope of evidence in an election petition is generally limited.  Though cross-examination may lengthen a trial, modern trial practices and the reforms under CJR empower the court to exercise a firm control over the use of time and restrict cross-examination to issues which are really relevant.  In an election petition, parties are expected to proceed expeditiously and the court will allow little leeway in futile attempts to prolong the trial unnecessarily.  Bearing in mind that it is not mandatory to have a final determination of the election petition before the assumption of office of a Chief Executive (as explained above), I do not think Mr Mok and Mr Wong have discharged the burden of justifying the 7-day time bar.

109.  In coming to this conclusion, I do not place much reliance on Mr Lee’s other submissions on proportionality.  Since I do not regard the 95-day time limit as an absolute deadline, I do not think the absence of justification for that time-frame takes the matter further.  In respect of the time required for other preparatory steps, my own view is that a 7-day limit is not so short that it would not be possible to comply with.  As we have seen, similar time limit appears in other jurisdictions.  Further, as I have observed in the course of arguments, the Petitioner’s real complaint is that he could not have discovered the ground of challenge within the 7-day limit rather than insufficient time for the preparation of the election petition.  In respect of that complaint, I agree with Mr Wong that it is inherent in every limitation provisions that some undisclosed wrong might not be challengeable in court.  In short, it is a necessary price for a limitation provision.  The question is whether the restriction is justifiable on striking an appropriate balance.

110.  Be that as it may, given that the Legislature has deemed fit to enact Section 39, I do not think the 7-day time limit can satisfy the third limb of the justification test in Hong Kong.

Remedial interpretation

111.  In HKSAR v Lam Kwong Wai  (2006) 9 HKCFAR 574, the Court of Final Appeal held that the courts in Hong Kong are impliedly empowered by the Basic Law to make remedial interpretations in order to uphold the validity of legislation and render it constitutionally compatible instead of striking it down completely.  The techniques available are described by Sir Anthony Mason NPJ at para 71,

“… Such an interpretation involves the well-known techniques of severance, reading in, reading down and striking out. These judicial techniques are employed by the courts of other jurisdictions whose responsibility it is to interpret and pronounce on the validity and compatibility of legislation which is challenged on the ground that it contravenes entrenched or statute-based human rights and fundamental freedom.”

112.  The rationale for the exercise of such power was explained at para 77,

“… The justification for now engaging in remedial interpretation is that it enables the courts, in appropriate cases, to uphold the validity of legislation, albeit in an altered form, rather than strike it down. To this extent, the courts interfere less with the exercise of legislative power than they would if they could not engage in remedial interpretation. In that event, they would have no option but to declare the legislation unconstitutional and invalid. Indeed, it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted.”

113.  The court has a duty to consider this option before striking down a legislative provision completely.  Sir Anthony Mason NPJ said at para 78,

“… It follows that the implied powers of this Court[11] include the obligation to adopt a remedial interpretation of a legislative provision which will, so far as it is possible, make it Basic Law-consistent. Only in the event that such an interpretation is not possible, will the Court proceed to make a declaration of contravention, entailing unconstitutionality and invalidity.” (my emphasis)

114.  The implied obligation extends to making a legislative provision BOR-consistent, see para 79.

115.  There are limitations to remedial interpretation. In Sheldrake v DPP [2005] 1 AC 264 at p.303-304, Lord Bingham identified some limitations,

“Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible … In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation … All these expressions, as I respectfully think, yield valuable insights …”

116.  In Lam Kwong Wai, these observations were endorsed at para 66 with the emphasis that they are insights but not prescriptions.

117.  Subsequently, Ribeiro PJ in HKSAR v Ng Po On (2008) 11 HKCFAR 91 at para 47 gave further guidance on the limits of this power,

“The Court recognizes that such remedial techniques necessarily have their limits. The Court cannot take up a curative measure which is so fundamentally at odds with the intent of the legislation in question that adoption of such a measure properly calls for legislative deliberation. In Leung Kwok Hung v HKSAR, in the context of severance, this Court endorsed the test for the limits of intervention adopted by the Privy Council. This involves asking whether what remains after application of the remedial techniques:

‘… cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting [the provision in the terms found to be constitutionally objectionable].’ ”

118.  Mr Wong also referred this court to the judgment of Lord Rodger in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at paras 110-115; Schachter v Canada [1992] 2 SCR 679 at p.718; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [2000] 2 SA 1 at paras 74 and 75.  In the first case, the following observations by Lord Rodger should be noted in the present context,

“ …[the remedial techniques] does not allow the courts to change the substance of a provision completely … in considering what constitutes the substance of the provision or provisions under consideration, it is necessary to have regard to their place in the overall scheme of the legislation as enacted by Parliament …” (para 110)

“… a departure from a fundamental feature of an Act of Parliament may be more readily treated as crossing the boundary into the realm of amendment where it has important practical repercussions which the court is not equipped to evaluate. …where, even if the proposed interpretation does not run counter to any underlying principle of the legislation, it would involve reading into the statute powers or duties with far-reaching practical repercussions of that kind. In effect these powers or duties, if sufficiently far-reaching, would be beyond the scope of the legislation enacted by Parliament. … In any given case, however, there may come a point where, standing back, the only proper conclusion is that the scale of what is proposed would go beyond any implication that could possibly be derived from reading the existing legislation in a way that was compatible with the Convention in question. In that event, the boundary line will have been crossed and only Parliament can effect the necessary change.” (para 115)

119.  Mr Mok submitted that in the present case, if the court comes to the conclusion that the 7-day time limit is unconstitutional, I should adopt the remedial interpretation technique of reading into the time limit a residual judicial discretion to extend time along the same line as the residual discretion under Section 39(2).  He argued that if the court were to strike down the time limit altogether, it would do most violence to the legislative intent.  It would be more consistent with the overall legislative intent of having a strict time limit for election petition if the court adopts the remedial interpretation of adding such discretion to extend time.

120.  On the other hand, Mr Wong and Mr Lee submitted that the court should not read in such residual discretion.  Mr Wong submitted (and the submission was adopted by Mr Lee) as the evidence shows that the legislature had specifically addressed the question whether there should be a residual judicial discretion similar to Section 39(2) for election petition and rejected the same, it would go directly against the deliberate legislative intent of having different time limit regimes between election petition and judicial review with no judicial discretion to extend time for the former.

121.  In my judgment, though the legislature had set two different regimes in the CEEO for time limits, it is beyond dispute that the legislature wished to achieve speedy determination of both types of proceedings to further the public interest that I have discussed above.  I agree with Mr Mok that in the present context, to strike down the time limit altogether (and therefore permitting an election petition to be brought at any time) would obviously be something most undesirable from the point of view of the legislature.  In this connection, I respectfully echo the words of Sir Anthony Mason NPJ, “it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all”.

122.  The question is whether the reading in of a judicial discretion to extend time would result in a time limit which is fundamentally or essentially different from what had been enacted in Section 34, or in the words of Ribeiro PJ, “is so fundamentally at odds with the intent of the legislation in question that adoption of such a measure properly calls for legislative deliberation”.

123.  Having considered the time-bar for election petition in the overall scheme of the CEEO and the electoral process for Chief Executive as provided under the Basic Law, and the potential repercussions if a residual judicial discretion in terms similar to Section 39(2) is read into Section 34, I am of the view that such a course is within the permissible scope of remedial interpretation.  I do not regard the misguided response of the Deputy Secretary of Constitutional Affairs at the Bills Committee mentioned above purporting to justify the distinction in residual discretion for judicial review and election petition in the Bills Committee as an impediment.  Quite to the contrary, it demonstrates that had the members of the Legislative Council been correctly informed about the lack of substantial difference between the two procedures in terms of timing for the judicial process, there was every likelihood that similar judicial discretion for extension of time would be put in place for election petition.

124.  I have also pondered whether the primary time bar for both procedures should be on par with each other.  In the end, I decide not to disturb the 7-day primary time-limit.  No counsel before the court advocated for the disturbance of the primary time-limit.  Further, I can see some room for a slightly stricter time-limit for election petition to take account of the potential need to hear factual evidence at the trial of election petition.  The reading-in of a discretion similar to Section 39(2) for the time-limit for lodging election petition under Section 34 is, in the overall scheme of things, sufficient to redress the disproportionality.

125.  I would therefore read into Section 34 a similar judicial discretion to extend time as per Section 39(2).

Whether the substantive challenge based on Section 26 of the ECICO is liable to be struck out?

126.  Section 26 of the ECICO provides,

“(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.”

127.  Under Section 32(1)(a)(iv), one of the grounds for questioning an election is that the returned candidate was not duly elected because he engaged in corrupt conduct or illegal conduct.  Illegal conduct is defined under Section 32(2) as illegal conduct within the meaning of Part 3 of the ECICO.  Section 26 is within Part 3 of the ECICO.

128.  In the Petition lodged by the Petitioner on 5 July 2012, he alleged the 1^st Respondent of making three false statements.  At the hearing on 15 August, Mr Lee conceded that the third statement cannot constitute the basis of a case under Section 26.  The striking out therefore focused on the first and second statements.

129.  The first statement was pleaded in paras 26 to 28 of the Petition.  The statement and the manner in which it was published by the 1^st Respondent are pleaded at para 26,

“… On or about 14 May 2011, Mr CY Leung invited a number of journalists to have dinner at his home and told them that there were no UBWs on his Properties, and that that had been confirmed to him by two lawyers and an architect/surveyor … At the time of the publication of the 1^st False Statements, Mr CY Leung knew and or/expected that they would be republished by the media.”

Paragraphs 27 and 28 pleaded the media reports of that incident.

130.  Further, it was pleaded at para 32 that up to the polling day of the Chief Executive election, the 1^st Respondent did not withdraw the statement.  At paras 102 to 110, the Petitioner pleaded his case as to how he alleged that the 1^st Respondent had continued to publish the statement.  In particular, at para 110, he pleaded,

“…[Mr CY Leung] could have easily retracted those statements before his public declaration of candidacy by telling the truth to the press. He did not do so. Instead, he left those statements ‘in a place’ including, inter alia, paper media and the Internet, where they were likely to be read by the general public and voters during the election period or the period of candidacy. …”

131.  Thus, on the pleaded case of the Petitioner, the initial publication of the first statement took place on 14 May 2011.  That was well before the election period.  The 1^st Respondent announced publicly his decision to stand as a candidate on 27 November 2011.  The nomination period for the 2012 Chief Executive election commenced on 14 February 2012.  Mr Lee however contended that the 1^st Respondent could be held liable for the continuation of the publication (in the sense that he did not retract the statement and by reason of that made the statement available to those who read it during the election period in the archive of the news media and the internet.  Counsel relied on the definition of “publish” in Section 2 of the ECICO and the defamation cases of  Byrne v Deane [1937] 1 KB 818 and Edgeworth v New York Central [1936] 2 DLR 577.

132.  He also relied on Mok Charles Peter v Tam Wai Ho [2012] 3 HKC 398and Section 22(2) of the ECICO and contended that Section 26 also catches statement published before the election period.  Section 22(2) reads,

“A person may be convicted of an offence of having engaged in illegal conduct at an election if the person is found to have engaged in the conduct before, during or after the election period.”

133.  Mok Charles Peter v Tam Wai Ho [2012] 3 HKC 398is a case about election expenses.  One of the issues is whether election expenses can be incurred prior to the election period or the period of candidacy.  The Court of Final Appeal held that it could be so incurred.  But it is important to note the rider at para 49 of the judgment where Ma CJ said,

“…As long as the activities or matters to which the expenses relate, took place or occurred either during the election period or during the period of a person’s candidacy (and that such expenses were incurred for one of the two said purposes), it does not matter when such expenses were actually incurred, whether before, during or after the election period.”

134.  This rider echoes what the Chief Justice said earlier at paras 35 to 46 as regards the definition of election expenses.  For present purposes, I would highlight the following observations,

“For an activity or matter, the expense for which can be regarded as an election expense, so as to be caught by ECICO, this activity or matter must be confined to a specific election, and not just some vague electoral purpose. …” (para 36)

“From the express wording in the relevant provisions in ECICO, it can be seen that the relevant provisions in ECICO regarding election expenses emphasize three aspects: the relevant elections themselves, the election period for such elections and the candidacy for them.” (para 37)

“This strongly suggests, in my view, that the type of activity or matter intended to be caught by the election expense provisions in ECICO consists only of those activities or matters which are referable to a specific election and which take place or occur during the election period or the period of a person’s candidacy (whichever period begins earlier).” (para 38)

“A test based on reasonable imminence was rejected by the majority of the Court of Appeal in the present case as being too vague and instead, they opted for clearer and more definite lines, these being the period beginning either with the election period or with the public declaration of an intention to stand, whichever began earlier. With respect, I agree. Particularly given the serious consequences of exceeding the permitted maximum expenditure for election expenses, it is compelling that clear lines must exist.”

135.  Though these observations were made in the context of election expenses, I am of the view that they are equally apposite in considering the scope of Section 26.  First, these observations were drawn from the statutory scheme of ECICO as a whole, which must be the same for Section 26 as well as Section 24, the statutory provision for election expenses. Second, the same set of statutory criteria is adopted in the definition of election expenses in Section 2(1) and in the requisite purpose of a statement coming within the scope of Section 26.  Logically, the costs of publication of such a statement would fall within the scope of election expenses.  Third, the Court of Final Appeal’s approach is partly based on the definition of “candidate” in Section 2 which applies equally to Section 26.  Fourth, in the absence of a strong indication stemming from the wordings of Section 26 itself for a contrary approach, it should be interpreted in a manner consistent with the approach in the interpretation of Section 24.  

136.  There is nothing in Section 26 itself which mandates a different approach.  On the contrary, there are indicia within the section which supports a similar approach to that adopted by the Court of Final Appeal in respect of Section 24.  The relevant indicia in Section 26 itself are,

(a) the nature of the offence is illegal conduct at an election: the conduct must be referable to a specific election;

(b) the statement must be about a particular candidate, not a person who aspired to become a candidate or who might become a candidate;

(c) the purpose of the statement is to promote or prejudice the candidate in an election: it must therefore be referring to a specific election and specific person or persons as candidtate(s);

(d) like section 24, section 26 also carries with it serious consequences, including criminal liabilities for the contravention of it.  Thus, there is an equally compelling case for clear and certain lines to be drawn. 

137.  Section 22(2) has already been taken into account by the Court of Final Appeal in Mok Charles Peter v Tam Wai Ho [2012] 3 HKC 398and it is not inconsistent with the approach adopted in that case.  Election period, as defined under Section 2(2), starts with the nomination day for the election and ends with the polling day.  As noted by the Court of Final Appeal, the public declaration of candidacy can be earlier.  But there is nothing in Section 22(2) which requires an open-ended approach to be adopted in ascertaining the proper scope of Section 26, or for that matter, the scope of Section 24.

138.  Actually, if one were to think it through, an open-ended approach is unworkable.  Section 26 catches not only candidates, but also any person (see sub-section (1) as contrast with sub-section (2)) who publishes a relevant statement with a requisite purpose.  It applies to a wide range of elections.  Without a clearly defined temporal scope for the statements caught by it, the section can catch many persons who unwittingly say something about another person who subsequently decide to run as a candidate.  As the Court of Final Appeal observed in rejecting the reasonable imminence test in favour of its approach, an open-ended approach for Section 26 is too vague.

139.  The same conclusion (as the approach adopted by the Court of Final Appeal) can be reached if one were to construe the scope of Section 26 by reference to the requirements that the statement has to be one about a candidate and being published with a requisite purpose.  Before the public declaration of candidacy, statement about a person who subsequently becomes a candidate cannot be said to be a statement about a candidate nor a statement published with the requisite purpose.

140.  I hold that in deciding whether a statement is within the scope of Section 26, the same approach as that adopted by the Court of Final Appeal with regard to Section 24 should be applied.  In other words, a statement published before the public declaration of candidacy and the election period cannot be a statement within the scope of Section 26. 

141.  With regard to the first statement, that leaves Mr Lee with his submission based on continued publication.  I do not think there is any dispute that the continued publication of a statement after the commencement of the period of candidacy or the election period can be caught by Section 26 even though such a statement had initially been published before those dates.  There is also no dispute that continued publication can be achieved by inactivity: eg leaving a poster on the wall, permitting a statement made on one’s website to remain on it.  The crucial issue here is whether the non-retraction of a statement with the knowledge that it had been published by the media tantamount to continued publication by the 1^st Respondent.

142.  On this crucial issue, I do not think Mr Lee can derive much support from the authorities cited by him.  The facts of the two cases cited by counsel are quite different from the present one.  As Greene LJ put it in Byrne v Deane [1937] 1 KB 818 at p.837-8,

“… publication … is a question of fact, and it must depend on the circumstances in each case whether or not publication has taken place. …It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?”

143.  The actual decision in Byrne v Deane [1937] 1 KB 818 focused on the degree of control or dominion over the walls of the club on which the defamatory statement was published.  On the issue of publication, Greer LJ and Greene LJ held that there was evidence of publication by both defendants because as proprietors of the club, they had the power to remove the statement from the wall.  Knowing that the statement would be read if it was not removed, and by not removing it, the court could infer that they consented to the continued publication of the statement.  Slesser LJ took a different view and drew a distinction between the two defendants: he held the secretary to be liable because under the rules of the club she had dominion over the walls as far as the posting of notices was concerned, but not so for the other defendant.  Thus, even on the majority view, the inference of publication comes from the authority to remove the statement from the wall.

144.  The same can be said with regard to the Canadian case of Edgeworth v New York Central [1936] 2 DLR 577.  The file was kept by the employer company, in which the defamatory letter was contained and as such available to other staff of the company.  At all material times, it was within the company’s power to destroy that letter or to remove it from the file.

145.  By way of contrast, though the 1^st Respondent was responsible for the initial publication of the statement to the reporters on 14 May 2011, he did not maintain the archive of the news media or their websites.  He had no control over how items would be kept in such archive nor over the accessibility of such items, whether through internet or otherwise.  Actually, he did not even have any control over how the news item was presented by the reporters in writing.  

146.  In the law of defamation, there are cases where a person is held liable for publication through the news media if he intends his statement to be disseminated as a news item, see Blakeney-Williams v Cathay Pacific Airways [2011] 1 HKLRD 901.  Whilst it may not be absolutely necessary for the purpose of Section 26 to examine the extent of publication, I am prepared to proceed for present purposes on the basis that the 1^st Respondent is responsible for the statement disseminated through the press in May 2011 insofar as that statement accurately reflected what he had told the reporters at the meeting of 14 May 2011.

147.  But I think it is too far-fetched to hold that the 1^st Respondent should be held responsible for the maintenance of such item in the archive of the news media, whether in electronic form or otherwise.  Such archive is not in any way subject to the control or dominion of the 1^st Respondent.

148.  In principle, there is no difference between the maintenance of such archive by a news agency and the maintenance of similar archive by a private person who chose to set up a blog on the internet which would be accessible to members of the public.  With the advance of modern information technology, it is not difficult for a blog archive to be maintained without any knowledge on the part of the original source of information.

149.  Mr Lee suggested that the 1^st Respondent could retract the statement publicly before his declaration of candidacy.  With respect, the fact that the 1^st Respondent could have done so does not mean that he continued with the publication of the statement until it was retracted.  It is not necessary for me to decide in the present context whether the keeping of such an archive can constitute continued publication on the part of the news agency which maintained the archive and rendered it accessible to others.  For present purposes, the crucial question is whether the 1^st Respondent continued with the publication of the first statement.  In the absence of any evidence or suggestion that he had any control or dominion over the maintenance of such archive, I do not see how he could be said to have continued with such publication after its initial dissemination in May 2011.

150.  To hold otherwise would enlarge the operation of Section 26 to an extent which could not possibly be the intent of the legislature.  Given the constitutionally guaranteed freedom of expression, publication and communication in Hong Kong, there is no limit to the dissemination of information in the public domain and internet archives and blogs are easily accessible.  If the scope of Section 26 were construed in the manner suggested by Mr Lee, every candidate who intends to run for an election subject to the ECICO would need to take the precaution of making a public disclaimer with regard to statements made by him or her publicly in the past before the public declaration of candidacy lest that his opponent or others in the opposing camp might later retrieve some public statements made by him in the past which in some respects can be said to be a false statement and might have the effect of promoting or prejudicing a candidacy.

151.  Therefore I reject the submission of Mr Lee based on continued publication.  It is plain and obvious to me that there is no arguable basis for suggesting that the first statement is within the scope of Section 26.

152.  Turning now to the second statement, it is pleaded at paras 40 and 41 of the Petition,

“40. On 16 March 2012, the Chief Executive Election Debate 2012 was held. One of the central issues in the debate was the discovery of UBWs in Mr. Henry Tang's house. During the debate, Mr. CY Leung openly criticised Mr. Henry Tang as follows:

‘唐英年先生，好多人話你(inaudible)問題呢唔係單純嘅僭建問題，而係公開咁向市民講大話，隱瞞你嘅僭建問題，直至呢有傳媒討論你先至出嚟老老實實承認你隱瞞僭建呢個事實。’(“the 2^nd False and/or Misleading Statement”)

41. The 2nd False and/or Misleading Statement made by Mr. CY Leung falsely implied and/or misled the public (including the Election Committee Members) into thinking that, unlike Mr. Henry Tang, he did not have any UBWs on his Properties.”

153.  The basis for asserting that the second statement had the meaning ascribed to it at para 41 is pleaded at para 113,

“113. Applying the legal principles relevant to meaning set out above, and having regard to the context in which that statement was made, viz. during the CE Election Debate where the two main protagonists, Mr. Henry Tang and Mr. CY Leung, were attacking each other in order to promote the election of himself and prejudice the election of his main opponent, the 2nd False and/or Misleading Statement bore the following meanings:

(1) Unlike Mr. Henry Tang, Mr. CY Leung had no UBWs at his home;

(2) Unlike Mr. Henry Tang who had to conceal his UBWs by openly lying to the public, Mr. CY Leung had no UBWs to conceal and no reason to lie about them;

(3)   Unlike Mr. Henry Tang who honestly admitted that he had been concealing the truth about his UBWs only after they were exposed by the media, Mr. CY Leung had no UBWs to worry about.”

154.  The relevant legal principles relied upon, as pleaded at paras 95 to 97 of the Petition, were derived by Mr Lee from some English authorities on the law of defamation, particularly Jeynes v News Magazine Ltd [2008] EWCA Civ 130 at paras 14-15 and Charman v Orion Publishing Group Ltd [2005] EWHC 2187 at para 11. 

155.  As a matter of pleading, the Petition does not plead a case of innuendo.  Mr Lee contended primarily that the alleged meanings are the ordinary and natural meanings of the words said by the 1^st Respondent during the debate.  Yet, by way of alternative, counsel submitted, as a fallback position, the Petitioner will aver that the words are capable of bearing these meanings by way of innuendo.  If necessary, Mr Lee said, the Petitioner can amend the Petition to give the necessary particulars.  But counsel did not place any draft amendments before the court and therefore I cannot assess what are the extrinsic facts that the Petitioner would rely upon to advance a case of true innuendo. 

156.  On this part of the case, based on the matters already pleaded, it is not an allegation of true innuendo.  The matters pleaded in para 113 are the context in which the statement was made, which must be taken into account in deciding what is the natural and ordinary meaning of the statement.  As Lord Morris put it in Jones v Skelton [1963] 1 WLR 1362 at 1370-1,

“The ordinary and natural meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning; any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be part of the ordinary and natural meaning. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge, and not fettered by any strict legal rules of construction would draw from the words.”

157.  Mr Lee emphasized that at this stage, the question is whether it is plain and obvious that the words are incapable of bearing the alleged meanings, and he relied on the Court of Appeal’s decision in Wong Wing Ho v Chong Lai Wah CACV 212 of 2007, 13 Feb 2008.  This was also the approach adopted by the English Court of Appeal in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at para 15,

“… on an application [to strike out], it is common ground that the question is whether the words complained of are capable of the meaning or meanings complained of. Put another way, the question is whether it would be perverse to conclude that the words bear the alleged meaning or meanings.”

158.  The rationale of this approach is the division of roles between judge and jury in defamation cases.  As explained by Sedley LJ in Berezovsky v Forbes Inc [2001] EMLR 1030, 1040 (endorsed subsequently in other Court of Appeal judgments as set out by the Master of the Rolls in  Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at para 13,

“16. The real question in the present case is how the courts ought to go about ascertaining the range of legitimate meanings. Eady J regarded it as a matter of impression. That is all right, it seems to us, provided that the impression is not of what the words mean but of what a jury could sensibly think they meant. Such an exercise is an exercise in generosity, not in parsimony. It is why, once fairly performed, it will not be second-guessed on appeal by this court: the long stop is the jury. But it is also why, if on an application for permission to appeal it appears that the judge had erred on the side of unnecessary restriction of meaning, this court -- though it will always be mindful of what Brooke LJ said in Cruise v Express Newspapers [1999] QB 931 about self-denial in libel cases -- may be readier to take another look. In those cases where it does so, its decision is akin to (and strictly speaking probably is) a holding of law. It will have careful regard to the judge's view, but the view it comes to on the legitimate ambit of meaning will be its own.” (my emphasis)

159.  This division of roles and how it defines the role of the court in a striking-out application were discussed by the Master of the Rolls in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at para 20,

“…While I entirely accept that all questions of meaning are matters for the jury at a jury trial or for the judge at a non-jury trial, I do not think that it is right to say that this is especially so in matters of ‘demotic literature and popular culture’. In every case, meaning is a matter for the jury unless a judge concludes, on an appropriate application, that the words complained of could not be defamatory, or put another way that a decision by a jury or indeed a judge at a non-jury trial that the words were defamatory would be perverse. On such an application, it is the judge's duty in every case to decide whether the words complained of are capable of having the defamatory meaning or meanings alleged. …”

160.  There is no trial by jury in proceedings pursuant to Section 32 of the CEEO.  However, there is still a difference in the role of a judge in an interlocutory application to strike out and the role of a judge at the trial.  At the striking-out stage, the court is concerned primarily with question of law (ie whether the statement is incapable of having the defamatory meaning). On question of facts (ie whether the statement did bear such meaning in the circumstances of its publication), that is generally left for trial.  The distinction is pinpointed by Gatley on Libel and Slander 11^th Edn at para 36.5,

“Where the words complained of are reasonably capable of either an innocent or a defamatory meaning, it is a question of fact for the jury to determine which of the two meanings the words actually bore. …

The task of the jury is to decide which of the possible meanings is the ‘right meaning, that is to say the single natural and ordinary meaning of the words. …

Whether the context of words, which, when read in isolation, are defamatory, removes the sting or transforms the meaning so as to render the words incapable of being defamatory, is as a general rule a matter for the jury …”

161.  What was said in that passage in respect of the jury can equally apply to the judge in the trial if the judge is arbiter of facts.  Though the issue in the present application does not focus on the removal of the sting by the context, I am of the view that similar approach applies to the contextual implication of a sting in respect of a statement which, on its literal meaning, is innocent. 

162.  The peculiar role of the arbiter of facts in a case where a statement is reasonably capable of bearing several meanings and published to a wide range of audience (as in the case of the second statement) was explained by Diplock LJ in Slim v Daily Telegraph [1968] 2 QB 157 at p 173,

“Where … words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is ‘the natural and ordinary meaning’ of words in an action for libel.”

163.  There are cases where judges were able to say that the words published were incapable of bearing a particular meaning when the context was taken into account, see for example Charleston v News Group Newspapers [1995] 2 AC 65.  But it all depends on the facts and circumstances of the case.

164.  In his reply, Mr Mok invited this court to adopt a more stringent approach based on Rule 14 of the Election Petition Rules.  Counsel went to the extent of suggesting that like the time-bar point, this court should reach a final conclusion on the meaning of the second statement instead of merely considering whether it is plain and obvious that the second statement is incapable of bearing the alleged meanings.

165.  As a matter of fair disposal of the application, I must decline to take such an approach in the present case.  This would conflate an application to strike-out and a summary application under Rule 14 with the trial.  The 1^st Respondent had not given any prior indication that the application  would be a trial of preliminary issue as to the meaning of the second statement and the Petitioner has not been given the opportunity to put before this court his whole case on the meaning of the second statement in terms of evidence and submissions.  

166.  The issue should therefore be formulated thus: whether it is plain and obvious, even construed in the context as asserted, that the second statement is incapable of bearing the alleged meanings.  The relevant context alleged in para 113 is that the statement was made in an election debate where the 1^st Respondent attacked the other main protagonist in the election by reference to his concealment of UBWs until they were discovered by the public media.

167.  Mr Mok submitted that it is not logical for one to read the second statement as a statement about the 1^st Respondent’s own position in terms of UBWs at his own home.  That may be correct as matter of literal interpretation.  But, as we have seen, the ordinary and natural meaning of a statement can extend beyond its literal meaning.  Further, for the purpose of determining the meanings of a statement in the context of Section 26, as in the context of defamation law, the reasonable reader can have some leeway.  As Sir Anthony Clarke MR observed in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at para 14,

“… (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.”

168.  On the other hand, the Master of the Rolls also reiterated in the same paragraph these propositions,

“…(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …’ … (8) It follows that ‘it is not enough to say that by some person or another the words might be understood in a defamatory sense.’ …”

169.  Whilst the Petitioner’s case is not a strong one, I do not feel able to conclude it is plain and obvious that the second statement is incapable of bearing the alleged meanings.  I express no view at this stage whether it bears such meaning (in the application of the principle explained by Diplock LJ in Slim v Daily Telegraph) as it would be a matter for trial.

170.  In addition to the pleas in Para 113, the Petition also pleaded that the second statement should be read together with the first statement.  This is pleaded at para 119,

“But there is no good reason not to read the 1st False Statements and the 2^nd False and/or Misleading Statement together, in which case they constitute a clear case of illegal conduct. The public, including members of the CE Election Committee who had read or known the 1st False Statements, would have been misled into believing that Mr. CY Leung did not have any UBW at his home, and this belief would have been considerably strengthened when they saw on television, or heard on the radio, or read in newspapers how Mr. CY Leung attacked Mr. Henry Tang’s lack of honesty and integrity during the CE Election Debate on 16 March 2012. And the support for Mr.CY Leung would increase while the support for Mr. Henry Tang would decrease as a consequence.”

171.  The first statement is an extrinsic matter and it is not a case where the second statement made explicit reference to the first statement.  In this connection, Mr Mok referred to the following dicta of Owen J in Brown v Marron [2001] WASC 100 at para 56,

“Each case must depend on its own facts. There must be an intimate connection between the primary source of the alleged defamation and the other material which is said to form part of the context. The primary and secondary sources must be so closely connected, interwoven or enmeshed that it is necessary to take them effectively as one transaction in order to arrive at the true import and meaning of what was written and said. The requisite degree of intimacy will usually (although not always, for example in the serialization situation) demand contemporaneity. It will be necessary to consider all of the surrounding circumstances to decide whether the secondary materials are so intimately connected with the primary sources that they are to be taken to be a part of the context which might affect the way in which the ordinary reasonable reader would understand the words complained of.”

172.  It should be noted that the approach considered by the judge in that case was by reference to the ordinary and natural meaning of the words and the question was whether secondary document could be read as part of the context of the primary document, see paras 53 to 55 of the judgment. Read in that light, I agree with the observations of Owen J.  I accept Mr Mok’s criticism as to the insufficiency in the Petitioner’s pleadings to make the first statement part of the context for ascertaining the ordinary and natural meaning of the second statement.  The two statements were made on different occasions with a long lapse of time in between.  There was no cross-reference in the second statement to the first statement. 

173.  But these observations do not deal with a case of true innuendo.

174.  As the pleadings stand, para 119 is ambiguous in that it is not clear whether the Petitioner intends to run a case of true innuendo with the first statement as special extraneous facts known to some of the readers of the second statement and gives the second statement a special meaning.  However, the second sentence of that paragraph can be regarded as pleading a case in that direction.  Having regard to the oral submissions of Mr Lee as to his fall-back position and my above conclusion on the second statement, I do not consider it appropriate to strike out this part of the Petition.  Instead, the Petitioner should be given an opportunity to plead a proper case of true innuendo, paying particular regard to the various requirements set out in Clerk & Lindsell on Torts 12^th Edn paras 22-45 and 22-46 and Bullen, Leake & Jacob’s Precedents of pleadings 14^th Edn para 28-18.

175.  For these reasons, I decline to strike out the Petition on the ground that it is plain and obvious that the case as to false statements is unarguable.

Abuse of process

176.  Once I reach the conclusion (as I did) that the Petitioner’s case on false statements is not unarguable, I do not see how the prosecution of the Petition can be regarded as an abuse of process.  Whatever political considerations the Petitioner may have in the prosecution of the Petition, there is nothing in the evidence to suggest that he did not do so with a view to seek the court’s determination of an arguable case.

177.  In such circumstances, I do not see any basis to characterize the prosecution of this Petition as an abuse of process.

Outcome

178.  As mentioned, it is agreed that the Petitioner should be given an opportunity to make a proper application for extension of time if the court concludes that a residual discretion should be read into Section 34 and the Petition is not struck out for other reasons.

179.  I wish to hear from the parties what order or directions I should make in view of my conclusions in this judgment.  I also wish to hear submissions on whether the final disposal of the summons should be deferred until after my determination of the application for extension of time and the filing of particulars on innuendo.

180.  For that purpose, given the public importance of a speedy determination of the matter, I shall ask my clerk to list the case for a hearing as soon as practicable, in any event within 10 days of the handing down of this judgment.