YIP WAH CHING AND ANOTHER v. SECRETARY FOR JUSTICE

HCMP 744/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 744 OF 2012

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J U D G M E N T

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1. The applicants apply by Originating Motion under section 31 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“the Ordinance”) for relief from penalties and disqualifications for illegal conduct at an election. The Secretary for Justice does not oppose this application.

2. The applicants are Indigenous Inhabitant Representatives of Lin Ma Hang Village (“the Village”) having been so elected in an election held on 23 January 2011.  The Village is in the North of the New Territories and adjacent to the border with the mainland.

3. The applicants had jointly used a printed advertisement in their election campaign.  The advertisement contained some 11 statements claiming that the applicants had successfully accomplished a number of matters and undertakings from the government for the benefit of the Village.  There are also five other statements referring to other undertakings that they were still striving to accomplish.

4. Of the 11 statements of accomplishments, 10 of them are admittedly false materially or misleading.  The applicants have therefore committed an illegal conduct at the said election in having published these false statements about themselves for promoting themselves as candidates for the election.  These statements are as follows:

(1)    禁區開放，整個蓮麻村都開放 (Opening up closed area, opening up the whole of the Village);

(2)    雙線車道到蓮麻坑村 (Dual carriageway to the Village);

(3)    高圍網搬到深圳呵邊釋放所有網地 (Moving the High Boundary Fence to the bank of Shenzhen River and releasing all the fenced land);

(4)    政府改用高科技焚化垃圾，杜絕病毒、細菌滋生保障村民健康 (Government to change to use high technology to incinerate garbage, eliminate germs and viruses to protect the health of the villagers);

(5)    政府撥款撥地給本村興建一座700尺3層高新村公所 (Government to allocate land and provide funding for our village to build a new 3-storey village office building on 700  sq ft land);

(6)    全村新舊房屋政府免費更換新窗戶 (Government to replace new windows for all old and new houses in the whole village free of charge);

(7)    從新發回松山牌照村民重新擁有松山種植使用權 (To issue afresh forestry licence, villagers to gain the forestry right in the pine hill again);

(8)    敬修學校發回給本村使用 (To return King Sau School to the village for its use);

(9)    葉氏宗祠政府撥款復修 (Government to provide funding for refurbishment of the Ancestral Hall of the Yip Chan);

(10)   政府同意繼續維修保養蓮麻坑水塘及其管道，保證村民用水 (Government agreed to continue repairing and maintaining Lin Ma Hang Reservoir and its piping to guarantee water consumption by the villagers).

The legal principle

5. The applicants are applying under section 31 of the Ordinance.  The relevant parts of the section provide:

“(1) A candidate, candidate’s agent or any other person who has done or omitted to do an act that, but for this section, would be illegal conduct at an election may apply to the Court for an order under subsection (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

…; and

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

The applicants say that they made the false statements due to inadvertence and not due to bad faith.  They are not relying on the grounds of accidental miscalculation or reasonable cause.

6. “Inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith (In re Brook Bernacchi et al [1957] HKLR 185 and Wong Yee Him v Secretary for Justice, HCMP 611/2000 dated 10 March 2000 per Deputy Judge Z E Li at para 9. It is not recklessness.  Inadvertence refers to causation while good faith or bad faith goes to the intention or motive of the applicant (Wong Yee Him, paragraph 12 and The Annotated Ordinances of Hong Kong, Elections (Corrupt and Illegal Conduct) Ordinance (Cap 544) 2010 Reissue)).  If there should be bad faith, the causation would not have been inadvertence.

Analyses and decisions on the false statements

7. Each of the applicants has made an affirmation in support of their applications.  They have provided the facts leading to their making of the false statements.  Those facts involved many dealings between the 1st applicant and some government officials. 

8. The Secretary for Justice has also provided an affirmation by Mr Cheuk Wai Kee, a Senior Investigator of the Independent Commission Against Corruption (“ICAC”), exhibiting the statements of the involved government officials revealing their versions of facts in relation to these dealings.  The Secretary for Justice did this in discharge of his duty to draw to the court’s attention matters that have come to his attention and which may cast doubt on the applicant’s case of lack of bad faith (see Re Chan Wai Tak, HCMP 1915/2009 dated 20 October 2009 at paragraph 15). 

9. The applicants also provided their 2nd affirmations in response to Mr Cheuk’s affirmation.

10. All ten false statements are factual assertions of matters and undertakings by the government that the applicants had allegedly accomplished successfully for the Village.  By way of general explanation of their errors, the 1st applicant referred to in paragraph 50 of his 1st affirmation his experience as the previous village representative in dealing with the government.  He said whenever a government official indicated acceptance of his suggestion or promised that efforts would be made to promote it, the official would indeed exert efforts gearing at its eventual accomplishment despite occasional delays.  He therefore all along regarded the stance expressed by government officials on matters he raised as most important.  He did not pay as much regard to the procedural side of matters or whether the government’s approval was confirmed in writing.

11. He also said that the advertisement in question was his first attempt in using printed promotional material in an election of village representative.  He was inexperienced and lax in the use of written words for such purpose.  He was also inadvertent and did not express himself well.  Hence, he made the errors.

12. The 2nd applicant said something similar in paragraph 50 of his 1st affirmation.  Though he was not the one who directly dealt with the government officials, he had in assisting the 1st applicant in the past gained the same experience and understanding.  The advertisement in question was also his first attempt in using a printed document to promote himself in an election which was also the first one that he had stood for. 

13. I now deal with the individual statements.

禁區開放，整個蓮麻村都開放 (Opening up closed area, opening up the whole of the Village)

14. The government had in September 2006 announced the intention to open up part of the closed area around Sha Tau Kok.  The applicants said in their affirmations that they had been campaigning for the reduction of the closed area for years.  The area to be opened up included part of the Village.  But they were not satisfied with this.  They continued to campaign for the opening up of the whole village.  Their actions included convening meeting of villagers, organisation protest parade by the villagers and making representation to Heung Yee Kuk.

15. Eventually, the government agreed in January 2008 to further reduce the closed area thereby releasing the whole of their village from the closed area.

16. However, it took time for legislation to be made to implement the policy.  The village was only opened on 15 February 2012.

17. The applicants accept that their statement on the opening up of the Village is materially false or misleading as the statement, which was made in January 2011, stated that the whole village had already been opened.  They say that they made the false statement inadvertently as they overlooked the fact that the policy would only be implemented after the necessary legislation had been made.

18. The Secretary for Justice accepts that there is no evidence suggesting bad faith on the part of the applicants in making this statement. 

19. There is one other issue on this statement.  It is the government’s position as revealed in Mr Cheuk’s affirmation that the government had already decided and announced the opening up of the whole of the Village in September 2006.  The further release of closed area did not affect the Village but only liberated two more areas close to the Village.  However, the Secretary for Justice accepts that there might be a difference between the government and the villagers on the understanding of the boundary of the Village.  The villagers take the two areas liberated in 2008 as part of the Village.

20. I do not think this difference in understanding would have any effect on the applicants’ case since they indeed took the two areas as part of the Village and regarded that the policy to liberate the whole village was only made in January 2008.

21. In the premises, I accept that this misleading statement on the opening up of the Village was made by the applicants inadvertently and without bad faith.  I therefore grant them relief under section 31(2) of the Ordinance.

雙線車道到蓮麻坑村 (Dual carriageway to the Village)

22. The evidence produced in Mr Cheuk’s affirmation shows that the 1st applicant had written to the Town Planning Department (“TPD”) suggesting the widening of the road from Ta Kwu Ling to the Village for constructing a dual carriageway or alternatively the building of a new dual carriageway from Wo King Hill to the Village. 

23. He made the same request at a meeting between the TPD and the representatives of the villagers on 15 August 2008.

24. He also on 30 April 2009 personally submitted to the TPD a document of proposals and a petition of the villagers.  The request for dual carriageway was included in the requests.  The TPD staff also discussed with the 1st applicant on possible alternatives for constructing a dual carriageway to the Village.

25. The TPD staff and consultants also visited the Village on 10 June 2009 to gain better understanding of situation.  They also exchanged views with the 1st applicant and other villagers on how to plan and widen the road to the Village.

26. There was a further meeting on 20 November 2009 between the TPD and the villagers when the 1st applicant again enquired on the arrangement of access to the Village.  He was told that the government would widen a stretch of Lin Ma Hang Road from Ping Che to the Village so that the villagers would no longer need to carry a closed area permit in leaving and returning to the Village.

27. Eventually, the consultant to the TPD proposed to widen a stretch of Lin Ma Hang Road so that the villagers could go in and out of the village without the need of a closed area permit.  The proposal was mentioned in a report of the department which was provided to the 1st applicant on 18 August 2010.

28. However, the construction of the dual carriageway had not commenced when the election advertisement was published.  The applicants thus accept that their statement on the dual carriageway is materially false.  They made it inadvertently thinking that their striving had borne fruit.  Nevertheless, there is no evidence of bad faith.  I therefore grant them relief for this statement under section 31(2) of the Ordinance.

高圍網搬到深圳呵邊釋放所有網地 (Moving the High Boundary Fence to the bank of Shenzhen River and releasing all the fenced land)

29. This false statement is connected with the 1st false statement on the opening up of closed area in the Village.  The applicants made the same careless mistake of having overlooked the need to have legislation to implement the policy which the government had agreed to implement.  I grant them relief under section 31(2) of the Ordinance for the same reason.

政府改用高科技焚化垃圾，杜絕病毒、細菌滋生保障村民健康 (Government to change to use high technology to incinerate garbage, eliminate germs and viruses to protect the health of the villagers)

30. There is a landfill area in the North-east of the New Territories for refuse disposal.  The government in 2008 advocated the expansion of this area.  The villagers did not welcome the proposal for health and environment reasons.  The applicants repeatedly expressed their objection to the proposal. They did so by expressing views to the Secretary for Environment, presenting a statement to a related working group of the government and taking the part in a protest parade.  They in conjunction with others further advocated the use of incinerators in place of expansion of the landfill.  Their efforts did not bear fruit for quite some time.  However, the Secretary for Environment made a public statement in October 2010 that indicated a change in policy from expanding the landfill to using high-technology incinerators.  The applicants took the view that their efforts had contributed to the government’s change of policy. 

31. However, their statement in the election advertisement asserting the change of method of refuse disposal is materially false as the consideration to change the policy was then still at the preliminary stage. 

32. I accept that the applicants had perceived and believed that they had contributed to a change of policy in the government’s consideration of using incinerators and hence inadvertently published the false statement in their advertisement.  I therefore grant them relief for this statement under section 31(2) of the Ordinance.

政府撥款撥地給本村興建一座700尺3層高新村公所 (Government to allocate land and provide funding for our village to build a new 3-storey village office building on 700  sq ft land)

33. The evidence shows that the 1st applicant had since June 2009 repeatedly requested for land and funding from the government to build a new 3-storey village office.  The Environmental Protection Department (“EPD”) agreed to consider the request and treated it as a local area betterment project.  The Assistant Director of the department also agreed to assist in the matter. Staff of the Lands Department (“LD”) also conducted an inspection of the site for the proposed new building with the 1st applicant in June 2010. 

34. However, the necessary funding had not been obtained from the Legislative Council when the applicants made their statement claiming success. Hence, the statement is materially false. 

35. The Secretary for Justice accepts that the applicants might have believed that some government officials had agreed to assist though the officers did not have the power to grant land or funding.  I accept that the applicants had genuinely considered that they had succeeded in the task and hence inadvertently made the false statement in their advertisements.  I grant them relief for this statement under section 31(2) of the Ordinance.

全村新舊房屋政府免費更換新窗戶 (Government to replace new windows for all old and new houses in the whole village free of charge)

36. Owing to the government’s intent to expand the landfill area in the North-east of the New Territories, a village representative of Ta Kwu Ling Village at a meeting with the EPD in June 2009 requested that the government should double-glaze the windows of the village houses free of charge to keep out the noise and other annoyance.  Ta Kwu Ling Village is close to the Village.  The 1st applicant then made the same request at the meeting for the sake of the Village.  The 1st applicant said in his affirmation that the Assistant Director of the EPD had responded by saying that the project was feasible if the costs were not high and she would enquire into it.

37. On the basis of the response of the Assistant Director, as perceived by the 1st applicant, the applicants regarded that the request had been accepted and that the enquiry was just on the mode of implementation.

38. The evidence of the government on this issue is not the same as the applicants’.  An officer of the EPD agreed that the request to doubt-glaze the windows had been made in several meetings between the government and the representatives of the villagers before the election in January 2011, though he was not sure whether the requests were from the 1st applicant.  The EPD agreed to consider the request as a local area betterment project.  However, the funding for the project was to be approved by the Legislative Council which had not been sought at the time of the election. 

39. The Assistant Director further disputed that she had made the response as alleged by the 1st applicant, but accepted that there could have been a misunderstanding between the two sides on this matter.

40. Since funding had not been sought from or approved by the Legislative Council at the time of the election, this statement of the applicants is admittedly false materially.

41. I would however accept that the applicants had, by reason of what they perceived as the promise of the government officers, genuinely believed that they had obtained the government’s promise to double-glaze the windows free of charge for the Village.  Hence, they made this false statement inadvertently.  I therefore grant them relief for this statement under section 31(2) of the Ordinance.

從新發回松山牌照村民重新擁有松山種植使用權 (To issue afresh forestry licence, villagers to gain the forestry right in the pine hill again)

42. The LD had indeed decided to re-grant the forestry licence to the villagers and had conveyed the decision to the 1st applicant before the election.  The statement is question is false materially because the licence had not been formally granted at the time of the election.  I accept that this false statement was made inadvertently by the applicants as they genuinely thought that they had already obtained the granting of the licence. I grant them relief for this statement under section 31(2) of the Ordinance.

敬修學校發回給本村使用 (To return King Sau School to the village for its use)

43. King Sau School stands on government land.  It ceased operation in September 2008 for want of enough students.  The 1st applicant was the former school supervisor.  He was still keeping the key to the school premises.

44. The applicants’ case is that the villagers want to keep the school premises for their use.  The Home Affairs Department (“HAD”) respected the wish of the villagers, but required the premises to be taken over by an appropriate charity.  The Village then appointed an accountant to incorporate a charity for this purpose.  Pending the taking over of the premises by the charity to be incorporated, the Village kept the use of the premise as the applicants thought that they had the support of the HAD in doing so.  They regarded the need for a charity to take over the premises as a formality.  This thinking received confirmation from the HAD as the department gave the Village a cheque for HK$812 as rental for having used the school premises as a polling station on 22 to 23 January 2013 for the election.

45. The government’s case does not tally entirely with the applicants’ case.  In fact, the LD had by letters dated 12 August 2008 and 21 January 2009 asked the 1st applicant to return the school premises to the government.  The 1st applicant by letter dated 22 August 2008 declined the 1st request and did not reply to the 2nd request.  The LD did not send out any reminder seeking the return of the premises.

46. Further, the officer in charge of the Liaison Office at the District Office, North of the HAD had expressed to the 1st applicant that the villagers would have to apply to the LD and procure an appropriate charity to take over the premises.  If the villagers could comply with the conditions imposed by the LD, the HAD would provide policy support to the villagers’ request.

47. Regarding the sum of HK$812, it was paid by the HAD to the village as utility allowance for using the school premises for two days to conduct the election.  This sum was however based on a standard rate of rental paid by the government for using of premises of other organisations.

48. The applicants further explained that they relied on the support of the HAD in keeping and using the premises.  They regarded the written requests from the LD for surrender of the premises as mere formality.  This was particularly so when there was no further request after January 2009.  They therefore genuinely believed that they had already obtained the government’s agreement for the school premises to be used by the village. 

49. I agree that the applicants had genuinely believed that they had succeeded in this task.  Their belief should have been consolidated by the attitude of the HAD over this matter.  The payment of the so-called utility allowance, though effected after the election, was consistent with the thinking that the possession of the school premises was being enjoyed by the villagers.

50. I therefore find that this false statement was made inadvertently because of a genuine mistake in thinking that the government had already given the possession of the school premises to the villagers for their use.  I grant relief for this statement under section 31(2) of the Ordinance.

葉氏宗祠政府撥款復修 (Government to provide funding for refurbishment of the Ancestral Hall of the Yip Chan)

51. The applicants said that they had in 2009 succeeded in obtaining funds from the government for restoring a historic building of the Yip Clan in the Village.  They then followed the same procedure to apply for funds to restore their ancestral hall.  They succeeded in the first step on 22 January 2010 in obtaining a Grade III Historic Building classification for the hall.  They then proceeded to apply for funding for the restoration. 

52. In July 2010, three officers from the Antiques and Monuments Office inspected the hall and advised them the conditions for provision of funding for the restoration.  They immediately intimated agreement to the conditions.  The officers further gave them the contacts of some refurbishment consultants for their further action.  The applicants thus considered that funding would be available. 

53. The 2nd applicant and another member of the Yip Clan then contacted the Centre for Architectural Heritage Research of the Chinese University of Hong Kong to work out the refurbishment details and the budget required.  The application for funding was however not submitted to the Development Bureau before the election, but only on 9 May 2011. 

54. The applicants explained that when they made the statement claiming success in obtaining the funding, they indeed thought that they had procured the availability of funding. 

55. I accept that they had mistakenly thought that their acceptance of the conditions conveyed by the government officers and the giving of contacts of refurbishment experts by the officers meant that the funds would be forthcoming.  They harboured such thinking because of their experience in obtaining funding to restore another historic building of the Yip Clan.  Hence, they made the false statement inadvertently.  I therefore grant them relief for this statement under section 31(2) of the Ordinance.

政府同意繼續維修保養蓮麻坑水塘及其管道，保證村民用水 (Government agreed to continue repairing and maintaining Lin Ma Hang Reservoir and its piping to guarantee water consumption by the villagers)

56. Back in the 1960s when there were still villagers farming their fields, the HAD had procured the construction of a small reservoir to gather water from a stream at the back of the Village to alleviate the water shortage.  Pipes were installed to conduct the water from the reservoir to the Village for this purpose.  The pipes had been repaired by the Agricultural and Fisheries Department (“AFD”). 

57. The evidence shows that the 1st applicant had since 2003 requesting for clearance of the reservoir and laying of new pipes.  The HAD cleared the reservoir but refused to lay new pipes as the Water Supplies Department had provided potable water to the Village.  The 1st applicant followed it up with the police in March 2005 but to no avail.

58. The 1st applicant said that he had raised the matter again with the Assistant Director of the EPD at a meeting held in June 2009.  This was recorded in the minutes of meeting compiled and kept by the Committee of Affairs of the Villages at Ta Kwu Ling (“the Ta Kwu Ling Committee”).  The Assistant Director in a subsequent meeting in September 2009 further expressed that if there was indeed the need, she would follow the matter up with the AFD.  The applicants therefore took the view that their request had been accepted by the government and that the AFD would be responsible for the administrative arrangement and implementation of the work.

59. The Assistant Director of the EPD had a different recollection.  She recalled that the 1st applicant had complained in a meeting in June 2009 that certain water supply to the Village had been cut off.  She knew that such incident had happened in the early years when the landfill was constructed.  She promised to provide water supply by tanker if need be.

60. Though there was this difference in recollection, the Assistant Director accepted that there could have been a misunderstanding between the two sides.

61. In the light of the minutes kept by the Ta Kwu Ling Committee for the June 2009 meeting, I accept that the 1st applicant had indeed made the request in that meeting for construction of new piping to conduct water from the reservoir to the Village.

62. After this meeting and the alleged promise by the Assistant Director of EPD in a September 2009 meeting, the applicants did not pursue this matter again until July 2011 when the 1st applicant wrote to the AFD requesting for maintenance of the reservoir and installation of new piping.  But that was about six months after the election.  The AFD replied that the request would only be considered if agricultural activities, which had already been stopped in the Village, would be resumed.  The applicants later obtained written confirmations from some villagers that they would resume agricultural activities on their lots in the Village.

63. Since the 1st applicant had made the request in the June 2009 meeting, he would have pursued it until he was given an answer one way or the other.  I therefore accept that he had perceived, though mistakenly, that the Assistant Director of EPD had promised to follow the matter up with the AFD.  I draw support for this deduction from the fact that the applicants always pursued their requests to the government until they got an answer one way or the other though they sometimes did not exhibit a good sense of expedition.

64. I therefore accept that they had made this false statement inadvertently.  I grant them relief under section 31(2) of the Ordinance for this statement.  However, I must say that this last statement is close to the borderline.  It would not require much to tip it into the side of recklessness.  If the applicants should mount any election campaign again, they should exercise a lot more care in making any statement to promote themselves.

Costs

65. I now come to the question of costs.  I make the following costs order nisi.  Since these proceedings were necessitated by the carelessness of the applicants, they should be responsible for their own costs.  I further order them to pay the costs of the Secretary for Justice to be taxed on an indemnity basis.