TE WING CHI v. SECRETARY FOR JUSTICE

HCMP 981/2021

[2021] HKCFI 3473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 981 OF 2021

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D E C I S I O N

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A.   Introduction

1.  By Originating Summons dated 14 July 2021, the Applicant seeks an order allowing her to lodge the ‘Return and Declaration of Election Expenses and Election Donations’ (“Election Return”) with the Chief Electoral Officer, out of time.  For the reasons which will be traversed below, the Election Return was due to be lodged by 29 September 2020. Therefore, the Applicant is asking for a significant extension of time of over nine months.  But, also for the reasons which will be traversed below, the Election Return involves no election expenses and election donations at all.

2.  The application is made pursuant to section 40 of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”). The Applicant is represented by Mr Kev LH Wan and Mr Colman Li, Counsel.

3.  The Secretary for Justice (“SJ”), as respondent to the application, takes a neutral stance.  But she also has a duty to assist the Court by drawing to its attention any matters which may cast doubt on the Applicant’s case.  The SJ is represented by Ms Ally Shum, Government Counsel.

4.  I directed the matter to be dealt with on paper, by reference to written submissions to be filed in accordance with a set timetable.  Mr Wan and Ms Shum have filed their respective submissions on 1, 8 and 15 November 2021.

5.  Having considered those submissions, this is my Decision.

B.   Factual Background

6.  I take most of the following factual background from the evidence filed by the Applicant, some of it filed in response to the evidence filed by an officer of the Registration and Electoral Office (“REO”), which evidence I have also taken into account.

7.  The particular facts giving rise to this application arose in the circumstances of the then unprecedented postponement of the 2020 Legislative Council General Election (“2020 Election”), with polling originally scheduled to take place on 6 September 2020.  The nomination period for the 2020 Election commenced on 18 July 2020 and ended on 31 July 2020.

8.  Only an hour or so before the closure of that nomination period on 31 July 2020, the Applicant submitted her application of candidacy to the Central and Western District Office of the Home Affairs Department (“HAD”).  The Applicant was to be a candidate for the Hong Kong Island geographical constituency.  She had no prior experience in running for an election.  She had no political affiliation with any political party, and no election agent and/or manager.

9.  However, also on 31 July 2020, the Government announced that due to the severe public health situation caused by Covid-19, the Chief Executive in Council had decided to invoke the Emergency Regulations Ordinance Cap 241 to postpone the 2020 Election for a year to 5 September 2021.

10.  The widely and publicly advertised media announcements and press releases emphasised the fact of the decision to “postpone” the 2020 Election.  The original press releases also identified that measures to deal with the postponement remained undecided, including as to the lacuna in the Legislative Council sixth term, which was about to expire.

11.  Therefore, the Applicant says that at the time she submitted the application of candidacy, although the officers of the HAD received the nomination, they were unclear about the logistics arising from the just announced postponement.  Obviously, at that point, the Applicant had not yet commenced any election campaign, nor had she incurred any election expenses or received any election donation.  Nor did she ever do so.

12.  The later resolution that the sixth term of the Legislative Council be extended for not less than one year was made on 11 August 2021.

13.  Prior to submitting her application for candidacy, the Applicant had studied the materials given to her by the officers of HAD.  She had noted, and reached the understanding, that section 37(1B) of the ECICO requires a candidate to ensure her election return is lodged before expiry of the period of 60 days after an election is “settled”, which is defined in section 37(1C) to mean the later date of the events being either (1) the result of the election is notified in the Gazette, or (2) the election is declared to have failed.

14.  On that basis, the Applicant believed that the postponement was neither such scenario, and erroneously misunderstood that she did not have to file the return.  That belief or understanding was correct at the time, but not correct after 1 August 2020, when The Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation Cap 241L (“Regulation”) came into operation.  As Mr Wan says, the Regulation, amongst other things, superseded and/or superimposed the new deadline for submission of an election return, outside the long-established statutory framework under the ECICO.  The new period for the Applicant to have lodged her Election Return was for 60 days starting 1 August 2020, therefore expiring on 30 September 2020.

15.  The Applicant says she was first aware of the Regulation and its effect – and, therefore, her failure to have filed the Election Return in time – only when she was requested by ICAC officers to attend an interview in around February 2021.  Thereafter, the Applicant says, she took reasonable steps to rectify the situation, including by making the present application in July 2021.

16.  On the other hand, Ms Shum properly points to the Regulation itself, (a) a reminder letter dated 14 August 2020, (b) two emails dated 25 and 29 September 2020, and (c) a successful telephone call made by the REO on 25 September 2020, as part of the steps to remind the Applicant to lodge an Election Return.  Other steps included other attempts to contact the Applicant by telephone, but to no avail.  In her reply evidence, the Applicant says that (a) the reminder letter was not passed on to her by whoever signed for it, (b) the emails were sent to an email address created solely for the purpose of participating in the 2020 Election, but following the postponement the Applicant did not log back into that account and had forgotten the address, and (c) her recollection of the focus of the telephone call was as regards having incurred no election expenses and how that should be handled, rather than any question of time sensitivity or a deadline.

17.  Overall, and without minimising the seriousness of the matter, the Applicant says she did not intentionally or deliberately breach the ECICO.  Having been originally mistaken and confused by the subsequent arrangements of the unprecedented postponement of the 2020 Election, she later took active steps after being made aware of the deadline in February 2021.

C.   Applicable Principles

18.  As already stated, this application is made under section 40 of the ECICO, for relief from failure to have complied with section 37 of the ECICO.  In Yu Hon Kwan v Secretary for Justice [2021] 3022 at §§10-11, I offered my own summary of the applicable principles, as:

(1)  A candidate at an election must lodge with the appropriate authority an election return, and must ensure that the election return is lodged within the relevant statutory period.

(2)  A candidate who fails to lodge an election return as required can apply to the Court for an order allowing him to lodge an election return within such further period as the Court specifies.

(3)  On such an application, the Court may in its discretion make the order sought, but only if it is satisfied that the inability or failure to lodge an election return as required by section 37 was attributable to: (a) the applicant’s illness or absence from Hong Kong; or (b) the death, illness, absence from Hong Kong or misconduct of an agent or employee of the applicant; or (c) inadvertence or an accidental miscalculation by the applicant or any other person; or (d) any reasonable cause, and was not due to the applicant’s bad faith.

(4)  A candidate may also apply to the Court to enable him to correct any error or false statement in an election return.

(5)  On such an application, the Court may in its discretion make the order sought, but only if it is satisfied that the error or false statement was due to: (a) misconduct of an agent or employee of the applicant; or (b) inadvertence or an accidental miscalculation by the applicant or any other person; or (c) any reasonable cause, and was not due to the applicant’s bad faith.

(6)  The word “inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith, identifying that inadvertence and lack of bad faith are two separate elements.

(7)  Hence, the burden is on the applicant to show one of the preconditions for the grant of relief, and the absence of bad faith.

(8)  Where a deliberate decision has been made to exclude an item from an election return, reliance cannot be laid on “inadvertence”.  But the applicant may rely on the “any reasonable cause” exception.

(9)  Ignorance of the law is no defence, and it is incumbent upon a candidate to familiarise himself with the election rules when meeting the requirement to lodge an election return setting out the expenses incurred and donations received.

(10)  Indeed, participants in elections should be aware that elections and the attendant legal obligations are serious matters, such that they should take reasonable steps to fulfil their legal obligations as candidates.

(11)  So, there is a distinction between (a) a case where an applicant simply turned a blind eye or acted recklessly as to the legal requirements, and (b) a case where an applicant has tried to understand what the legal requirement was, but failed to meet it correctly.

(12)  The Court’s power to grant relief is discretionary, and it is important that such discretion be exercised in a manner consistent with the integrity of the election legislation.

19.  I also pointed out that whilst the facts and results of other cases may sometimes be considered by way of some comparison or analogy, each particular case requires the proper application of the principles to the particular circumstances of the particular case, and the exercise of discretion in and to those circumstances.

20.  In the context of this case, Mr Wan has argued that ignorance of the law may, in certain circumstances, amount to inadvertence: see Halsbury’s Laws of England 4^th Ed Reissue Vol 15 at §728.  Though the facts of the examples given in that passage are somewhat different from the present case, I am prepared to accept that ignorance of the law may, but only very rarely, amount to inadvertence if the person has somehow been misled as to the appropriate provisions or effect of the election law: see also Finch v Richardson [2009] 1 WLR 1338 at §46; and Ex Parte Tsang Wai Ming (unreported, HCMP 3463/2003, 15 April 2004) at §§15-20.

D.   Whether to Grant Relief

21.  First, I accept that this application arises from unprecedented circumstances in the postponement of the 2020 Election.

22.  Secondly, at the time of the announcement of the postponement, the Regulation had yet to come into effect, and was therefore legislation which could not have been, and was not, provided to the Applicant with the original materials provided to her to inform her of her obligations under the ECICO.

23.  Thirdly, I accept that this case does not involve any wholesale disregard by the Applicant of her obligations, whether through acting intentionally or recklessly.  The Applicant had indeed applied her mind to the materials provided, and the announcements relating to the decision to postpone the 2020 Election.  It seems to me to be perfectly understandable that the Applicant came to the then/originally correct understanding that neither of the two events triggering the period for filing the Election Return had occurred.

24.  Fourthly, I accept the subsequent failure to file the Election Return was attributable to the ‘change of landscape’ by the enactment of the Regulation, and when viewed against the circumstances should properly be regarded as inadvertence.

25.  I take into account the steps apparently taken by the REO to remind the Applicant of the need to lodge the Election Return by the newly prescribed deadline under the Regulation.  But, I accept the explanation given by the Applicant as reasonable and plausible.  Though there was plainly some discussion of filing a return, I accept the overall circumstances may have misled the Applicant to miss the imposition of the new deadline.  I also take into account to some extent – though the point should not be regarded as particularly weighty – that the Applicant was very young and was unassisted in her dealings with the matters flowing from her application for candidacy.

26.  Overall, I find that the Applicant has satisfied the ground of “inadvertence” under section 40(2)(c) of the ECICO (and there is no need to consider also any “reasonable cause”).  The omission in this case was the result of negligence or inadvertence not so gross in nature. Even though the delay was of a substantial period, it was substantial in part because of the very nature of the inadvertence.  Further, when the Applicant’s candidacy was in effect immediately terminated by the postponement of the 2020 Election on the very day that her candidacy was put forward, the omission did not involve any egregious conduct, such as might otherwise have raised doubts concerning the good faith of the Applicant.  Indeed, I specifically accept that the Applicant’s failure was not due to her bad faith.

E.   Order to be Made

27.  Overall, it seems to me correct on the particular facts of this case to exercise the discretion to grant the relief sought by the Applicant, namely to allow her to lodge the Election Return. Though neither the Originating Summons nor Mr Wan’s submissions identify any particular timeframe, I order that the Election Return should be lodged with the Chief Electoral Officer within 14 days from the date of this Decision.

F.   Costs

28.  Where the Applicant is seeking the Court’s indulgence, and the SJ has properly adopted a neutral stance whilst drawing to the Court’s attention matters properly to be taken into the balance, the appropriate order is that the Applicant should bear the SJ’s costs.

29.  In her written submissions, Ms Shum has invited the Court to award costs summarily assessed at $25,226, by reference to an attached Statement of Costs.  In his written submissions, Mr Wan has not responded to the costs application, nor to the claimed sum on a summary assessment.  Having considered the Statement of Costs, I summarily assess the costs in the sum of $20,000.