CHAN YIN CHU v. OR YIU LAM, RICKY AND OTHERS

[English Translation – 英譯本]
CACV 276/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 276 OF 2009

(ON APPEAL FROM HCAL NO. 11 of 2008)

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JUDGMENT

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Hon Cheung JA (giving the judgment of the Court):

1.  The Petitioner lodged an “election petition” concerning the result in the election of the Sai Kung District Council Kwong Ming Constituency held on 18^th November 2007, seeking a determination by the Court that the election of the First Respondent was invalid. After hearing the application lodged by way of petition, Andrew Cheung J of the Court of First Instance of the High Court dismissed it. The Petitioner is now appealing against the decision of Andrew Cheung J.

2.  The Second Respondent has not taken part in the present appeal.

3.  With our leave, the Secretary for Justice (on behalf of the Secretary for Constitutional and Mainland Affairs) has taken part as an intervener. The only reason for his intervention is to make submission regarding the jurisdiction of this court.

Jurisdiction

4.  It is set out in Section 55(3) of the District Councils Ordinance  (Cap 547) that the determination of the Court in relation to an election petition is the final determination: 

“(3) At the end of the trial of an election petition, the Court must certify the determination of the Court in writing. The judge must sign the certificate and ensure that the seal of the Court is applied to the certificate. The determination as certified is final as to the matters at issue concerning the election petition.”

5.  Judging purely by the wordings of Section 55(3), the determination of Andrew Cheung J would be the final determination and we would have no jurisdiction to hear this appeal. Nonetheless, on the basis of the Court of Final Appeal’s decision in Mok Charles Peter v. Tam Wai Ho and others FACV 8/2010, we consider this contention untenable. The Court of Final Appeal gave its interpretation concerning “final determination” in an equivalent provision in Section 67(3) of the Legislative Council Ordinance (Cap 542). The subsection reads:

“(3) At the end of the trial, the Court must certify the determination of the Court in writing. The judge must sign the certificate and ensure that the seal of the Court is applied to the certificate. The determination as certified is final as to the matters at issue concerning the election petition.”

6.  In that case, the Court of Appeal took the view that, in light of the wordings of Section 67(3) of the Legislation Council Ordinance, it had no power to hear an appeal from the determination of the Court of First Instance on an election petition. The Court of Final Appeal ruled that the provision was unconstitutional on the ground that it was inconsistent with the power of final adjudication of the Court of Final Appeal under Article 82 of the Basic Law. That power of final adjudication was exercisable only on handling appeals from, for instance, the Court of Appeal. If the determination of the Court of First Instance were to be deemed final, the Court of Final Appeal would be deprived of its exercise of the power of final adjudication. The Court of Final Appeal ruled that, although it was necessary to have speedy determination on election petition involving the Legislative Council election in order to resolve uncertainties as soon as possible, the measure adopted in the provision went further than what was needed to achieve this aim. The Court of Final Appeal ruled that the Court of Appeal had the jurisdiction concerned and remitted the case to the Court of Appeal.

7.  The wordings of Section 55(3) of the District Councils Ordinance are equivalent to those of Section 67(3) of the Legislation Council Ordinance. The grounds on which the Court of Final Appeal ruled that the latter was unconstitutional can also be applied to the former. If the Court of Appeal were to have no jurisdiction concerning election petition involving the District Councils, the Court of Final Appeal would be directly deprived of the power of final adjudication on disputes arising from election petitions involving the District Councils. In these circumstances, we rule that Section 55(3) of the District Councils Ordinance is unconstitutional and the Court of Appeal has the jurisdiction to hear appeals from determinations of the Court of First Instance on election petitions.

New evidence

8.  The Petitioner sought to call witness(es) and introduce new evidence in this appeal. We refused her application on the grounds that such testimonies or evidence could and should have been adduced during the trial instead of subsequent to Andrew Cheung J’s dismissal of her petition, and that such new evidence would not affect the outcome of this appeal materially.

Grounds for the petition

9.  The Petitioner challenged the election of the First Respondent on two grounds: The first ground was that the First Respondent, during the election, breached the Guidelines on Election-related Activities in respect of the District Council Election by, without direction or decision from the Chief Electoral Officer, putting up numerous election banners of himself outside the constituency concerned. The second ground is that the First Respondent printed 2,000 leaflets on 15^th November 2007 which mentioned that an anonymous “person with intentions” had done certain things to vilify him. However, the First Respondent did not give an account in the leaflets of the identity of that “person with intentions” and therefore indirectly made electors think that the “person with intentions” was among the other candidates. That has affected the electors’ interest to vote and their decision in casting a vote. There were, including the Petitioner and the First Respondent, four candidates in the election for that constituency. The First Respondent was elected with 1,130 votes and the Petitioner received 40 votes.

Grounds of appeal

10.  Andrew Cheung J found that the First Respondent had not put up election banners in non-designated public spots during the election. It was a finding of fact. The Petitioner had the burden to prove her case. Having considered the relevant evidence, witness testimonies and affirmations, the demeanour of witnesses in giving evidence, the inherent probability of the events as well as the burden and standard of proof, Andrew Cheung J found that the Petitioner had failed to prove her allegation. The Petitioner also alleged the First and Second Respondents of perjury and deceiving the Court during the trial. We are of the view that Andrew Cheung J’s acceptance of the First and Second Respondents’ testimonies was a finding of fact. The Petitioner has failed to show that this finding of fact was wrong.

11.  The Petitioner also alleged the Second Respondent of dereliction of duty in failing to produce to the Court the photo(s) of the banners filed by the First Respondent. It is also complained that Andrew Cheung J made the finding in the absence of evidentiary items. We are of the view that Andrew Cheung J was entitled to make a finding on the basis of the evidence concerned without relying on the photos. The Petitioner stated that she had not engaged a lawyer in the trial and therefore had no idea of how to apply to Andrew Cheung J for calling the witnesses concerned. We are of the view that, handling the application in person and not calling other witnesses were both her own choices and that they do not constitute a sufficient ground of appeal.

The second ground

12.  As for the second ground, by virtue of Section 49(1)(a)(ii) of the District Councils Ordinance, the Petitioner alleged the First Respondent of engaging in “corrupt or illegal conduct” at or in connection with the election.

13.  Andrew Cheung J set out the background as follows:

“33. It is suggested in the evidence that, during the election, someone claimed to the electors of the constituency by way of anonymous (letters) that he/she was a owner in Kwong Cheong House, which is in the constituency, and extensively criticised and queried Mr. Or’s performance during his 4 years’ term as a District Councillor. In reaction and reply to the anonymous letter, Mr. Or printed 2,000 leaflets and distributed them to electors in the constituency on 15^th November 2007. The content of the leaflet is as follow:

‘Dear residents of Kwong Ming Court and Po Ming Court:

I believe you have all received a scurrilous letter sent to your home with a $1.4 stamp. If this act of spending more than ten thousand dollars on sending out such anonymous letters to attack me in the election is about the seat in the District Council, not only is it an insult to me and the wisdom of the residents, it also vilifies the integrity and fairness of Hong Kong’s democratic elections. It is indeed infuriating! As a matter of fact, if one’s aspiration is to get a seat in the District Council, one should really fight harder for the reasonable rights of our district instead of spending a lot of money to send out some untruthful documents with a view to getting an edge in this District Council election.

I have already sought legal advice concerning the above-mentioned scurrilous letters and lodged complaints to the Registration and Electoral Office and the ICAC. If you have further information, I hope you would provide it to me (my mobile phone number: …) so as to facilitate the investigation of the above-stated agencies. In the meantime, I call on you all to vote on 18^th November (Sunday) and use your sensible vote to maintain the integrity and fairness of Hong Kong’s democratic elections.

I hereby also hope that the “person with intentions” would, if he/she has a lot of resources, donate money to organisations for the physically handicapped and the able-bodied as well as the disadvantaged so as to genuinely benefit the society!

For the “person with intentions”, information about organisations for the physically handicapped and the able-bodied as well as the disadvantaged is available from the SWD for your reference. They are waiting for your help!

Or Yiu Lam
Incumbent Sai Kung District Councillor
(Kwong Ming Constituency)

15^th November 2007’

34. According to Mr. Or’s testimony in court, copies of the anonymous letter of complaint were widely posted to electors. They were received both at his District Council Office and by his supporters. He therefore inferred that a large number of copies of the anonymous complaint letter were distributed to electors in the constituency by post. In further elaboration, on the basis of the fact that there were 7,000 households in the constituency, he inferred that it cost more than $10,000 in terms of postage and administrative fee.

35. The Petitioner queried the above inference when she testified in court. According to her, several days prior to the trial, she had made verbal enquiry with 20 odd flat owners in a multi-storey building in the constituency and only a few of them remembered receiving the anonymous complaint letter. Further, in their recollection, the letter was not sent by post but just put into the letterboxes of their homes.”

14.  The allegation of “corrupt and illegal conduct” was that the First Respondent had contravened the provisions of Section 26 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554). Section 26 provides that:

“(1) A person engages in illegal conduct at an election if the person publishes a materially false or misleading statement of fact about a particular candidate or particular candidates for the purpose of promoting or prejudicing the election of the candidate or candidates.

(2) A candidate engages in illegal conduct at an election if the candidate publishes a materially false or misleading statement of fact about the candidate or candidates with whom the candidate is associated, or about another candidate or other candidates, for the purpose of –

(a) promoting the election of the candidate or candidates with whom the candidate is associated; or

(b)prejudicing the election of the other candidate or candidates.

(3) For the purposes of this section, statements about a candidate or candidates include (but are not limited to) statements concerning the character, qualifications or previous conduct of the candidate or candidates.”

15.  According to Andrew Cheung J, the First Respondent did not state definitely in the reply leaflet that the anonymous letter was written by his competitor(s) in the election. As he only worded it by saying if the letter was written for the election, what he stated in the leaflet was therefore not a statement of fact. Further, Andrew Cheung J found that the leaflet did not involve any false or misleading statement of fact on the ground that the First Respondent had reasonable cause to suspect that the anonymous letter was written and sent out by his competitor(s) or the camp(s) concerned. The purpose of sending out the letters was to attack the First Respondent and thereby bolster the position of his competitors in the election. Since the First Respondent had reasonable cause to speculate that they were sent out by his competitor(s), the reply leaflet he sent out did not contain any false or misleading statement of fact.

16.  The Petitioner does not agree with Andrew Cheung J’s decision concerning her second complaint but she has failed to elucidate her grounds. We are of the view that Andrew Cheung J’s decision was correct.

Second Respondent’s costs

17.  Andrew Cheung J ordered that the Petitioner shall pay for the costs of the First and Second Respondents. Initially, the Second Respondent was not included in the petition. For a role restricted to filing and serving the evidence required, Andrew Cheung J ordered that the Second Respondent be included in the petition. The Petitioner questioned the necessity to include the Second Respondent and the justification for ordering her to pay his costs.

18.  Obviously, Andrew Cheung J included the Second Respondent in the petition because he found it necessary to have his assistance in the form of providing evidence in relation to the issues of this election petition. The evidence he provided had direct impact on the case. In making the costs order, Andrew Cheung J was exercising his discretion. We do not find anything improper in the costs order.

Conclusion

19.  For the above reasons, we dismiss the appeal and order the Petitioner to pay the First Respondent’s costs.