LAM KWONG YU v. THE RETURNING OFFICER OF THE TOURISM SUBSECTOR OF THE ELECTION COMMITTEE SUBSECTOR ELECTIONS 2006 AND OTHERS

HCMP 181/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 181 OF 2007

______________________

______________________

______________________

______________________

J U D G M E N T

______________________

1.  The applicant was a candidate in the Election Committee Subsector Elections 2006 (“the Election”).  He was in the Tourism Subsector. 

2.  After the Election was over, he filed the Return and Declaration of Election Expenses and Donations (“the Return”) on 4 January 2007.  He declared in the Return a sum of $1,800 as payment for an election meeting.  He also annexed thereto a receipt for this sum.  The receipt was issued by the Buckinghim Ballroom in Tsimshatsui and dated 1 December 2006.  He now applies under section 40(4) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 (“the Ordinance”) for an order that he may be allowed to correct the Return by removing this item.

Background

3.  The applicant is a retired civil servant.  He was a non-executive director of a travel agent and an advisor of an air-ticket agent.  Both agents were owed by one Freddy Yip Hing Ning (“Yip”).  Yip did not pay the applicant any salary or emolument for the roles he assumed, but provided him with free use of some office space and secretarial support. 

4.  In the middle of 2006, the applicant decided to stand for the Election.  However, he had no campaign manager and no experience in running an election campaign.  He therefore sought help from Yip who also stood for the Election in the Tourism Subsector.  Yip let him “tag along” in Yip’s campaign.

5.  Yip employed one Chan Bo Wah, Stephen (“Chan”) in his companies and Chan was also Yip’s campaign manager in the Election.

6.  The applicant, in running his campaign, had to visit the voters in his subsector.  Sometimes he paid the visits by himself and sometimes he did so in the company of Yip and Chan.  Chan had in particular rendered him assistance by taking him to the offices of various voters and introduced the voters to him. 

7.  In the afternoon of 1 December 2006, the applicant, Yip and Chan together visited some voters in the Yaumatei/Jordan area.  At about 5:15 p.m. Chan told the applicant and Yip that he had an appointment to attend to.  He then left them.  The applicant and Yip made another visit to one more voter and they then also went their respective ways. 

8.  Chan’s appointment was in the Buckingham Ballroom.  He had arranged to meet some people of the tourism trade there.  In addition to Chan, four other men also attended the meeting.

9.  On the following Monday on 4 December 2006 in the morning, Yip and Chan had a business meeting.  Chan also produced a receipt issued by the Buckingham Ballroom for $1,800 with a view to obtain reimbursement from his employer for the meeting he had two days earlier.  The applicant passed by and was invited to join the meeting.  He asked Yip and Chan the general sentiment of the voters and his chance of success in the Election.  Yip said that Chan had met some customers two days earlier and the receipt was still on the table.  Chan then responded that the general feeling was that the applicant had a fair chance of success.  The applicant then offered to pay the expenses for the meeting that took place two days earlier.  They continued talking for another 15 minutes or so and the applicant then took the receipt from the table and left.

10.  The applicant said in his affirmation that he had not been to the meeting in question, nor did he know its nature, where it was held or who had attended it.  He just volunteered to settle the $1,800 expense because he felt he owed Yip and Chan a great deal for the assistance they rendered him during the campaign.

11.  After he had filed his Return declaring, among other things, the $1,800 as expense for an election meeting, he received two telephone enquiries from some reporters asking him whether alcoholic drinks had been served in that meeting.  He was alerted that he might have done something wrong (or contravened section 12(1) of the Ordinance).  Subsections 12(1) and (5) provide:

“	(1)	A person engages in corrupt conduct at an election if the person provides, or meets all or part of the cost of providing, food, drink or entertainment for another person for the purpose of inducing the other person or a third person –
		(a)	to vote at the election for a particular candidate or particular candidates; or
		(b)	not to vote at the election, or not to vote at the election for a particular candidate or particular candidates.
		…
	(5)	A person does not engage in corrupt conduct of a kind referred to in subsection (1) only because the person has, at an election meeting, served non-alcoholic drinks of any kind.  An election meeting is any meeting held to promote or prejudice the election of a particular candidate or particular candidates.”

The penalties for corrupt conduct are provided in section 6 of the Ordinance.

12.  He now applies for an order to remove this item from the Return on the ground of inadvertence and lack of bad faith.  His counsel’s written submissions characterised the expense as business entertainment expense and not an election expense.

13.  In the Notice of Motion, he has also applied for an order under section 31 of the Ordinance for waiver of any penalty that may be imposed on him for corrupt conduct contrary to section 12.  The application for this relief was however withdrawn before the commencement of the hearing.

14.  In addition to the evidence provided by the applicant, the ICAC has also conducted an investigation into this matter.  All five men including Chan who had attended the meeting in the Ballroom had been interviewed by the ICAC and they all confirmed that nothing about the Election had been mentioned in the meeting.  Yip had also been interviewed by the ICAC and he confirmed that it was the applicant who volunteered to reimburse Chan for the expense.  There is no challenge by the ICAC to these matters.

15.  The respondents in this application take a neutral stance.  However, Mr Wong, counsel for the respondents, reminds me that I can only accede to the application if I should find that the ground put forward by the applicant under section 40(4)(c) should be objectively reasonable.  Section 40(3) and (4) provide:

“	(3)	A candidate can also apply to the Court for an order enabling the candidate to correct an error or false statement in an election return or in any document accompanying the return.
	(4)	On the hearing of an application made under sub-s.(3), the Court may make the order sought, but only if it is satisfied that the error or false statement was due to:
		(a)	…
		(b)	inadvertence or an accidental miscalculation by the applicant or any other person; or
		(c)	any reasonable cause,
		and was not due to the applicant’s bad faith.”

16.  The first thing I have to consider is the nature of the expense.  If it is election expense, it cannot be removed from the Return.  Section 2 of the Ordinance defines “election expenses” to mean:

“	In relation to a candidate or group of candidates at an election, means expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purposes of –
	(a)	promoting the election of the candidate or group; or
	(b)	prejudicing the election of another candidate or group,
	and includes the value of election donations consisting of goods and services used for that purpose.”

17.  It may be useful to consider some examples where expenses are undoubtedly treated as election expenses.  If the applicant’s secretary should have undertaken a lot of campaigning work for the applicant like arranging meetings with voters and such works are not part of her duties, then it is certainly appropriate for the applicant to show his appreciation and gratitude to the secretary by buying her a small gift or a delectable dinner.  The expense for buying the gift or the dinner would certainly be regarded as election expense.  Indeed, in a manual which was provided by the Electoral Affairs Commission to election candidates for reference, there is an Appendix O which deals with items of expenses that may be counted towards election expenses.  Item 21 of this appendix refers to “goods given incidental to the provision of voluntary service”.  This appendix also says that the items listed therein are by no means exhaustive and they are only the common items.

18.  If the expense for buying the secretary a delectable dinner for her voluntary service in the campaign is an election expense, the reimbursement of the expense for a dinner the secretary had on the pervious day should not make a different case so long as it is also for showing appreciation and gratitude to her voluntary work in the campaign.

19.  In this case, the applicant reimbursed Chan the $1,800 he incurred in the Ballroom because of the applicant’s appreciation and gratitude to Chan’s voluntary assistance in the conduct of his campaign.  This reimbursement is similar to the reimbursement for the secretary’s dinner and is thus an election expense and not a business entertainment expense.  It should therefore be declared in the Return.  I cannot accede to the applicant’s application to have it deleted from the Return. 

20.  However, the expense was incurred to show appreciation for Chan’s voluntary work and it is not right to declare it as an expense for an election meeting.  The meeting at the Ballroom on 1 December 2006 in fact was not an election meeting and the ICAC does not challenge that.

21.  In the premises, I make an order allowing the applicant to correct the Return not by deleting this item but by giving it a proper description.  I allow the applicant to describe the expense as:

“Retrospective reimbursement of expenses for entertaining Mr Chan Bo Wah in order to show the applicant’s gratitude for his assistance as a volunteer in the applicant’s election campaign namely, by showing the applicant the way to the offices of some of the voters in the applicant’s constituency and introducing the applicant to those voters.”

22.  Finally, the respondents ask for costs of these proceedings and the applicant does not oppose it.  I therefore order the applicant to pay the respondents the costs of these proceedings.