MARTIN CHARLES V.M. LISTER v. SECRETARY FOR JUSTICE

HCMP 202/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 202 OF 2017

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J U D G M E N T

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Background

1.  The applicant was an unsuccessful candidate in the 2016 Election Committee Subsector Ordinary Elections.  He failed to lodge a return and declaration of election expenses and election donations (“the election return”) by the deadline, ie 14 January 2017 (“the deadline”).  He now seeks an order allowing him to lodge the election return out of time, pursuant to section 40 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“Cap 554”). 

Legal principles

2.  Under section 40(2) of Cap 554, the court may make the order sought, if it is satisfied that the failure to lodge an election return was attributable to:

(a)   the applicant’s … absence from Hong Kong; or

(b)   [inapplicable]; or

(c)   inadvertence … by the applicant or any other person; or

(d)   any reasonable cause,

and was not due to the applicant’s bad faith.

3.  “Inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith.  The evidence should show some reasonable excuse for the inadvertence and the negligence must not be of so gross a nature or so culpable as of itself to raise doubts concerning the good faith of the applicant: Re Brook Bernacchi & Ors [1957] HKLRD 185 at 186, Gould J; and 陳佩怡對選舉事務委員會 (HCMP 2886/2012, 17 April 2013), at §17.

4.  Where a deliberate decision has been made, for example, to exclude an item from an election return, the applicant may not avail himself of the “inadvertence” exception.  It would be a conscious decision, albert erroneous. However, the applicant may rely on the “any reasonable cause” exception in making the application: Re Liu Sing Lee [2003] 3 HKLRD 162, at §§26-27, and 陳佩怡對選舉事務委員會, at §17.

5.  The burden is on the applicant to satisfy the court that the failure to submit his election return as required under section 37 of Cap 554 is not due to his bad faith, and to prove that the pre-conditions for grant of relief are established on the evidence: Re Liu Sing Lee, at §29, and 陳佩怡對選舉事務委員會, at §18.

6.  Ignorance of the law is no excuse.  It is only when the party concerned has taken reasonable steps to familiarize with the law but overlooked or misconstrued some intricate provision that exception may be considered. Wong Yee Him v Secretary for Justice, HCMP 611/2000, 10 March 2000, §11.

7.  An applicant cannot expect the court to grant relief simply because they say, “Well, I failed to do it because of my forgetfulness.”.  If relief is granted too readily, there is a tendency that people do not take this requirement of the law seriously enough.  A distinction must be drawn between cases where the applicant turns a blind eye, or acts recklessly as to the legal requirement, and a case where an applicant has tried to understand what the legal requirement is but failed to get it correctly.  Re Yiu Chun Fat, HCMP 1482/2007, Lam J (as he then was), 5 November 2007, §§10-11.

Grounds in support of application

8.  The reasons for the applicant’s failure to lodge a return were:

(a)   Absence from Hong Kong from 15 December 2016 until 17 January 2017 and from 25 January to 28 February 2017;

(b)   Reasonable cause: that one Mr Eugene Lai kept all the invoices and receipts needed to file the election return; and

(c)   Inadvertence: that the applicant did not recall the deadline for lodging the election return. 

9.  The applicant left Hong Kong on 15 December 2016, 4 days after the election was over.  On his return to Hong Kong on 17 January 2017, he had tried to contact Mr Lai by phone and email to discuss the provision of documents necessary to prepare the return.  However, he was not successful, as the latter was on leave outside Hong Kong until shortly before the Chinese New Year holiday (at the end of January 2017).

10.  The applicant was phoned up by the Registration and Electoral Office (“REO”) on 18 January 2017, which was the first date he came to realize that he had missed the deadline.  He spoke with the REO a number of times that week to ascertain what he should do.  He filed the present originating summons on 25 January 2017. 

11.  Meanwhile, as the applicant had retired, he made another plan to leave Hong Kong for sabbatical purpose for 6 months.  He later cut it down to enter a new job on 1 March.  In his second trip between 25 January and 28 February 2017, he travelled to various regions, including some remote region in Australia. He was not able to see Mr Lai before he left and would only be able to do so after returning to Hong Kong in February.

12.  He still could not contact Mr Lai when the applicant returned to Hong Kong.  Before this hearing, the applicant managed to prepare a draft election return (“the draft”), which he later revised (“the revised draft”).

Ground (a) - Absence from Hong Kong

13.  Absence from Hong Kong was the main ground relied on by the applicant.  However, none of the 2 trips he mentioned were driven by any circumstances of emergency.

14.  According to the itinerary, the first trip was booked on about 4 November 2016, for a family holiday planned well ahead of the election.  There were 4 days after the election before the applicant flew out on 15 December 2016.  There was apparently nothing that he had done to ascertain the deadline before or after he left Hong Kong except to email Mr Lai.  He simply “thought” that he had a week or so after the first trip to lodge the election return, a thought without basis.  The absence from Hong Kong due to the first trip could not be a valid explanation for not lodging the election return.

15.  The second trip was booked on 21 January 2017.  At that time, the applicant could not contact Mr Lai.  The applicant filed the present originating summons on 25 January the same date he flew out, and was given a return date on 23 March 2017.

16.  Given that the first trip did not constitute valid explanation, the second would not salvage the situation. In any case, the applicant made no attempt to contact Mr Lai during the second trip.

Ground (b) - that Mr Lai kept all the invoices and receipts needed to file the election return

17.  Mr Lai was the applicant’s former colleague and partner who invited the applicant to stand as a candidate with him.  Mr. Lai confirmed that he and/or his firm would meet all the expenses and would provide all necessary support in connection with the applicant’s candidacy.  On that basis, the applicant accepted the invitation. 

18.  The applicant had no record to keep.  He knew he had to lodge originals and he kept asking Mr Lai for originals.  He claimed that Mr Lai had all the invoices and receipts, half of which must be included in the applicant’s return.  It was not practical for Mr Lai to send those documents to the applicant abroad to enable the latter to complete his election return. 

19.  Further, the applicant apparently had something to clarify with Mr Lai before the applicant could lodge his election return.  He sent a WhatsApp message to Mr Lai on 16 December 2016 (Exh MCVML 6):

“I am not sure what expenses I need to file as I directly incurred no expenses. However, you incurred a number of expenses to support my campaign, but do those constitute "my" expenses? I assume that those expenses you incurred for me might constitute a gift; do they need to be declared?

…

[Should you have been appointed as my expenses agent? I assume not as you did not incur expenses on my behalf with my authority; you incurred expenses for my behalf as a gift?]”

20.  He also asked Mr Lai expressly on 30 December 2016 when the election return had to be filed (Exh MCVML 6).  For unknown reasons, Mr Lai never told the applicant of the deadline.

21.  Whilst I accept that these represented his true state of mind, I do not find the applicant’s explanation reasonable.

22.  Judging from the draft and revised draft, the applicant only needed 2 invoices to complete the election return: (i) an invoice for $26.25 from Netvigator concerning Netvigator service; and (ii) an invoice from H.K. Communication Art Ltd CAC for $92,000 (“the CAC invoice”). 

23.  Netvigator sent the invoice to the applicant direct by email on 15 December 2016 at 1501 hours (Exhibit MCVML 12), before he left Hong Kong.  The CAC invoice was forwarded by Mr Lai to the applicant on 30 December 2016 (Exhibit MCVML 7).  There was no delay on the part of Mr Lai.  Mr Lai also sent to the applicant his draft election expenses on 4 January and the final return on 16 January 2017.

24.  It was the duty of a candidate to keep proper records and ascertain the deadline for lodging.  Reliance on a fellow candidate was not sufficient. Nonetheless, the fellow candidate had given the necessary documents to the applicant well before the deadline.  The fault was on the applicant in not checking or acting on his incoming emails.  There was no reasonable excuse.  In fact, Mr Lai had stated in his email that he had repeatedly reminded the applicant to prepare his own election return.

Ground (c) – Inadvertence

25.  The applicant claims that he had left behind the Key Information (Exh ITMC-2, provided by the REO) outlining the timetable in connection with the election including the deadline.  (Note: the first page of the Key Information already set out the deadline for submission of election return to be “not later than 14 January 2017”.)

26.  The applicant read the voluminous materials in November 2016 but given the details he did not pay attention to the date for filing the election return. He did not recall the deadline and mistakenly believed that he could lodge it after his return to Hong Kong on 17 January 2017.  The lease of the election office and telephone service immediately ceased after the election date of 11 December 2016 and so he never received the written reminders (in December 2016) and telephone calls (on 10 January 2017) from the REO to file election return.

27.  I accept that these represented the true state of affairs and the applicant’s state of mind.  However, it was incumbent upon a candidate to familiarize himself with the election rules and take steps to preserve papers for preparing the election return.  It was also up to him to update the REO the means to contact him, if necessary.  The REO had no duty to remind a candidate to comply with election rules, although it had tried to contact the applicant. An email was sent to the applicant on 22 December 2016 to remind him to file an election return but the applicant was not aware of it.  The lack of an election agent would not exonerate a candidate either.

28.  Even if the applicant could not get in touch with Mr Lai, a simple research on the REO website would have answered his query as to the deadline. It was not a defence for the applicant to say that he did not know that REO had a website.  Websites were common channels to disseminate information.  In any case, the applicant could have called REO, but he never did before the deadline.

29.  In my view, the alleged “inadvertence” was self-induced.  Taken together with paragraph 23, there was a wholesale disregard of emails. I am not satisfied that these constituted good explanations.

Lack of bad faith

30.  I have no hesitation in finding that the applicant did not have bad faith.  He totally accepted responsibility for not lodging the election return.  He was aware of the duty to file an election return but simply had no idea as to time.  He completely relied on Mr Lai.  He had no complaint about the way REO handled the matter.

31.  Although he was not a litigation lawyer, he pulled together as fast as he could an application to court by 25 January 2017, about a week after he realized that the deadline was past.  He thought it was futile to prepare a draft return and so he did not prepare one until he was told to by this court. I find this to be lack of understanding of the procedure.  There was nothing to show that he intended to hide anything.

32.  By the time of the hearing, the draft has been amended, partly to correct mistakes arising out of misapplication of the election rules.  Another part concerned the CAC invoice.  Originally it was stated as an item of expense but subsequently changed to donation.  The applicant claimed that the $92,000 was paid for by Mr Lai.  The applicant issued a receipt on 19 June 2017 for the donation, countersigned by Mr Lai the day before this judgment is to be handed down. 

33.  Ms Chung, Government Counsel of DOJ acting for the respondent, pointed out that the purported donation may have violated some election rules, including failing to set out election donations under section 37(1)(b) and incurring election expenses for a candidate without authorization under section 23 of Cap 554.  A receipt should have been signed by the donee, countersigned by the donor as soon as possible after the donation and not half a year after the election was over.  Ms Chung submitted that this might have been the applicant’s measure to circumvent Cap 554 after she pointed out the problem about the CAC invoice in her written submission.

34.  In my view, not having received feedbacks from Mr Lai to his enquiry, the applicant was just being frank in admitting that he had not paid for the CAC invoice.  It is not the purpose of this judgment to deal with the legality of his arrangement with Mr Lai on payment of the CAC invoice.  I find that the revised draft reflected the truth of what the applicant wanted to present to the REO, subject to enclosure of Mr Lai’s signed receipt.  If I give extension of time, I would allow the revised draft to be lodged with REO.

35.  DOJ did not suggest bad faith.  In fact, I find that there was demonstration of good faith after the deadline was past.  However, these were not sufficient: Wong Yee Him, §§12-13. 

Findings and conclusion

36.  The situation boiled down to this – the applicant was aware of the obligation to file an election return but just did not remember the deadline. There was a series of oversight regarding documents sent by Mr Lai and Netvigator to him before the deadline, and missing of reminders from REO because the applicant did not update the REO of his contact details.  There was no intricate provisions of law to construe.

37.  The applicant relies on §11 of Re Yiu Chun Fat, ie that a distinction must be drawn between cases where an applicant turns a blind eye, or acts recklessly as to the legal requirement, and a case where an applicant has tried to understand what the legal requirement is but failed to get it correctly.

38.  In my view, although the applicant did not turn a blind eye to the requirement to file an election return, he had acted recklessly in not taking reasonable steps to ascertain the deadline except to ask Mr Lai.  He accorded low priority to the obligation to lodge the election return compared with his pleasure trips. 

39.  None of the grounds, taken alone or collectively, could amount to good explanation.  It would not be conducive to maintaining the integrity of the election legislation to grant the relief sought: Re Yiu Chun Fat. I decline to allow the applicant to file the election return out of time despite the absence of bad faith.

Costs

40.  The DOJ was helpful to the court.  The points taken by Ms Chung were fair.  The applicant should bear the costs of this application.

41.  The applicant had assumed that costs would be limited to actual costs and disbursements such as travel costs, photocopying costs etc.  He questioned DOJ’s move in seeking professional fees for providing its own services to itself or to make a profit from the citizen’s action; and the amount of time spent in reading, preparing documents and carrying out legal research and internal meetings.

42.  With respect to the applicant, costs were not so limited as he assumed. The meeting with the REO would have been necessary and proper to take instructions for preparing an affirmation setting out relevant facts.  It was also necessary and proper for Ms Chung to carry out research on legal principles and prepare submissions, which turned out to be very helpful to the court.  Since making her first set of written submission, the applicant’s evidence had raised issues concerning the CAC invoice.  It necessitated Ms Chung’s further submission.  There were also costs for attending the hearing twice. 

43.  All that the DOJ had done in this case was consistent with a neutral but helpful attitude towards the court.  It was not an attempt to make profit from a citizen’s action. The costs claimed were reasonable.  On a nisi basis, I order the applicant to bear costs of the respondent, summarily assessed in the amount of $40,650.

44.  I thank Ms Chung for her assistance.