CHAM KA HUNG DANIEL v. CHIEF ELECTORAL OFFICER

HCMP 425/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 425 OF 2008

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REASONS    FOR    JUDGMENT

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Introduction

1.  Relying on s. 40, Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554), the applicant commenced this action seeking various kinds of relief pursuant to ss. 31 and 40(3), Cap. 554.

2.  The respondent does not dispute the evidence adduced by the applicant.  Further, save for one matter which will be set out in more detail below, he adopts a neutral stance as to whether relief should be granted.

3.  At the end of the hearing, an order was made for the applicant to correct the election return (for the purpose set out in para. 9(1) and 10 below).  No order was made in respect of the other relief sought.  The reasons for doing so appear below.

Background

4.  The background leading to this action can be summarized as follows.

5.  The applicant was a candidate in the 2007 District Councils Election.  He was elected and is now a member of the Yuen Long District Council.  This action is concerned with errors in the following documents he lodged with/presented to the authorities after that election:-

(1) an election return (pursuant to s. 37, Cap. 554);

(2) a claim for financial assistance (pursuant to s. 60H, District Councils Ordinance (Cap. 547) and reg. 3, Electoral Affairs Commission (Financial Assistance for Legislative Council Elections) (Application and Payment Procedure) Regulations (Cap. 541N)).

6.  Since 2003, the applicant has been using a mobile phone and he paid the monthly fees in person at the shops of the phone service provider all along.

7.  In October 2007, he changed to another phone service provider.  Payment has since been made by autopay instead.

8.  Unknown to him until February 2008, the applicant was in effect double-charged by the two phone service providers from 28 October to 27 November 2007.  He was later repaid the amount of over-payment by the previous phone service provider.

9.  As a result, 2% of the monthly fee for the mobile phone which he inserted into:-

(1) the election returns as an item of election expense (2% of $278, being the monthly fee charged by the previous phone service provider) should be increased by $0.17 (2% of $286.50, being the monthly fee charged by the new phone service provider);

(2) the claim for financial assistance form as an item for financial assistance should likewise be increased.

10.  Having been alerted to the above errors, the applicant asked for an order authorizing him to correct them.

Status of a Claim for Financial Assistance Form

11.  While the respondent does not oppose this action in relation to the election return, through the Department of Justice, he takes the stance that a claim for financial assistance form does not fall within the ambit of Cap. 554.

12.  That stance is based on the following statutory provisions.

13.  S. 37, Cap. 554 provides for various requirements as regards the lodging of an election return setting out a candidate’s election expenses and donations.  S. 38 thereof makes it an office for failing to comply with s. 37.  S. 40 thereof confers power on the court to grant relief to a candidate for his failure to comply with s. 37.

14.  S. 40(3), Cap. 554 stipulates:-

“A candidate can also apply to the Court for an order enabling the candidate to correct any error or false statement in an election return or in any document accompanying the return” (emphasis supplied).

15.  The phrase “any document accompanying the [election] return” has not been defined in s. 40(3), Cap. 554.  However, s. 37(2)(b) thereof specifies that:-

“The candidate must ensure that the [election] return …

is accompanied-

(i)  in the case of each election expense of $100 or more, by an invoice and a receipt giving particulars of the expenditure; and

(ii)  in the case of each election donation of more than $1000 or, in the case of an election donation consisting of goods or a service, of more than $1000 in value, by a copy of the receipt issued to the donor giving particulars of the donor and the donation; and

(iii) where an election donation or part of an election donation that was received by or on behalf of the candidate in connection with the election was not used for that purpose was disposed of in accordance with section 19, by a copy of the receipt given by the recipient of the donation or part; and

(iv) where an election donation or part of an election donation that was received by or on behalf of the candidate in connection with the election was not used for that purpose was not disposed of in accordance with section 19(3), by an explanation setting out the reason why it was not disposed of in accordance with that section; and

(v) by a declaration in a form provided or specified by the appropriate authority verifying the contents of the return” (emphasis supplied).

There is therefore ample basis for concluding (and the respondent so contends) that the documents referred to in 40(3), Cap. 554 are those set out in s. 37(2)(b) above.

16.  But both reg. 3(4), Cap. 541N and s. 60H, Cap. 547 provide that the form for claiming financial assistance:-

“must be accompanied by an election return”. 

Further, the form must be presented to the Chief Election Officer (the same official with whom the election return is to be lodged) within the same time periods prescribed by s. 37, Cap. 554: see reg. 4(3) and 5(5), Cap. 541N and s. 60H(1)(a), Cap. 547.

17.  It is therefore quite arguable that the form also falls within the meaning of a “document accompanying the [election] return” in s. 40(3), Cap. 554.

18.  The respondent, again through the Department of Justice, has helpfully indicated that the authorities:-

(1) do not regard the failure to act in accordance with s. 60H, Cap. 547 and reg. 4, Cap. 541N to constitute corrupt or illegal conduct within the meaning of Cap. 554; but

(2) opine that the statutory requirements summarized in para. 16 above are only intended for the administrative convenience of the Chief Electoral Officer.

19.  In view of the above stance of the respondent, there was no need for the applicant to seek an order in relation to the form for claiming financial assistance.