TANG FEI v. SECRETARY FOR JUSTICE

HCMP 939/2022

[2023] HKCFI 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 939 OF 2022

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DECISION

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A.  Introduction

1.  The Applicant was a candidate of the 2020 Legislative Council General Election (“2020 Election”), for the Election Committee Constituency. The 2021 Election was held on 19 December 2021 and the Applicant was duly elected.

2.  Section 105 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, Cap 541D requires such a candidate to make available his election advertisements for public inspection. He could either (a) upload the electronic copies of his election advertisement to a designated open platform on the internet; or (b) providing to the Returning Officer 2 copies of the advertisement in paper form or any other form specified by the Electoral Affairs Commission (“EAC”); see sections 105(1) to 105(3). Both routes of submission have to be done in the manner and within the time specified by the EAC, and to be accompanied with the required information concerning the advertisement and the permission or consent for inspection.

3.  The deadline specified by the EAC is within 1 working day after the publication of the election advertisement, see §9.4 and Appendix 6 of the “Guidelines on Election-related Activities in respect of the Legislative Council Election” published by the EAC.

4.  On 6 December 2021, the Applicant published an advertising video (“the Video”) of about 3 minutes in length on the Facebook. But the Video had not been submitted by either of the two routes as required by section 105(1) on or before 7 December 2021. Non-compliance is an offence liable to a fine at level 2 and to imprisonment for 6 months under section 105(9).

5.  Such a candidate may seek relief from the Court to be excepted from such non-compliance under section 106(1). The Court is empowered by section 106(2) to grant relief if the statutory conditions are met.

6.  By summons filed on 18 July 2022 and amended on 29 August 2022, the Applicant seeks relief under section 106 of Cap 541D to be excepted from his failing to comply with section 105(1).

7.  The Applicant is represented by Mr Tam of YK Tam & Co Solicitors, who has filed written submissions on the Applicant’s behalf. The Applicant has also filed two affirmations in support of his application. The Secretary for Justice (“SJ”) takes a neutral stance, and did not file any affirmation but has filed written submissions to assist the Court. The parties have agreed to have this application dealt with on paper.

8.  Having considered all the materials before the Court, this is my Decision.

B.  The Background Facts

9.  The Applicant’s two affirmations are respectively deposed to by himself and his Election Agent / Election Expenses Agent, Mr Chan Chun Yu.

10.  The main affirmation is the one filed by Mr Chan. In essence, Mr Chan admits that the failure was due to his inadvertence and he mainly prays in aid his heavy workload to excuse his own inadvertence. He sets out in his affirmation the Applicant’s campaign schedule running from 1 to 19 December 2021. It can be seen that the Applicant had meetings or visits with different sectors of the society every day with about 3 to 5 meetings per day on average. It was typical for his first meeting to start around 9am or 10am and with the last meeting to start in the late afternoon. The Applicant said he was the only person to take care of the Applicant election campaign, as both the Election Agent and the Election Expenses Agent. He had to coordinate all the meetings and visits in the Applicant’s busy schedule.

11.  He only discovered that he had forgotten to upload the Video to the designated open platform in around late January 2022, when he was preparing the Applicant’s election return.

12.  In March 2022, Mr Chan posted to the EAC by ordinary post 2 DVDs each containing a copy of the Video together with the required information. Whilst Mr Chan cannot recall the exact date he sent the materials to the EAC, the SJ – albeit in written submissions rather than in affidavit evidence – has confirmed that the EAC received the materials on 17 March 2022. Mr Chan said the purpose was to enable the EAC to have early knowledge of the non-compliance and the content of the Video. But it might be thought that this might also have been an attempt at belated compliance since one of the two statutory routes for compliance is to provide 2 copies of the election advertisement, with the required information and permission or consent, to the Returning Officer.

13.  Mr Chan stressed that the non-compliance was due to his inadvertence, but there was no bad faith.

14.  The Applicant’s affirmation mainly confirms what is said in Mr Chan’s affirmation. The Applicant also accepts that whilst he had tasked the relevant filing duties with Mr Chan, he remained responsible for ensuring compliance with the said duty which was non-delegable. But he says he did remind Mr Chan to comply with all the statutory requirements including the uploading of electronic copies of his election advertisement to the designated platform. The Applicant also stresses that that the non-compliance was due to his inadvertence but there was no bad faith.

15.  As already said, the SJ has not filed any affidavit evidence in reply. But it is said in the written submissions that the Applicant’s affidavit evidence is consistent with the records of the REO. Further facts favourable to the Applicant are highlighted, it being observed that the Applicant had uploaded approximately 136 items of election advertisement to the designated open platform, and then submitted that the failure to upload one item may not be a deliberate act. Indeed, whilst the SJ says he takes a neutral stance, agreement is expressed with the Applicant that the non-compliance was due to inadvertence and that there is no evidence of bad faith, which – as will be seen below – are the statutory conditions for granting relief.

C.  Whether to Grant Relief

16.  The statutory conditions for the Court to make an order to except a candidate’s non-compliance with section 105(1) are provided in section 106(2). In essence, the Court has to be satisfied that 3 conditions are met: (1) the non-compliance was due to inadvertence, an accidental miscalculation or any reasonable cause; (2) the non-compliance was not due to bad faith; and (3) that it is just for the non-compliance to be excepted.

17.  For the 3 alternative limbs of the first condition, the Applicant relies upon “inadvertence”.

18.  In Au-Yeung J’s recent judgement in Lee Ka Chiu John v Secretary for Justice [2022] 4 HKLRD 330, the Court considered the equivalent statutory requirements for a candidate running in the Chief Executive Election. The relevant provisions are to be found in sections 87 and 88 of Cap 541J, which are materially identical to sections 105 and 106 of Cap 541D. Au-Yeung J distilled the applicable principles at §20. Pertinent to the present case, particularly to “inadvertence” and “bad faith”, are the following principles (omitting the citations):

(1)  Ignorance of the law is no defence. It is incumbent upon a candidate to familiarize himself with the election rules, and to ascertain the deadline for compliance. Compliance with the election rules is important. The solemnity and integrity of the election system and regime depends on it.

(2)  Inadvertence suggests a lack of deliberateness. It 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. Negligence in this context does not have the precise meaning given to the word in the context of the tort of negligence.

(3)  Where a deliberate decision has been made to exclude an item from an election return, the applicant may not avail himself of the “inadvertence” exception. It would be a conscious decision, albeit erroneous.

(4)  Identifying the inadvertence and lack of bad faith are two separate elements. The mere exclusion of one (bad faith) cannot automatically mean the satisfaction of the other (inadvertence).

(5)  The burden is on the applicant to prove that the pre-conditions for grant of relief are established on the evidence and that there was no bad faith on his part

19.  As I said in Lau Chak Fung v Secretary for Justice [2022] HKCFI 1108, at §31, the third condition seems to call on the Court to exercise its overall discretion and to consider if it is “just” to grant relief, weighing everything in the balance.

20.  Mr Tam also fairly drew my attention to Re Yiu Chun Fat, (unreported, HCMP 1482/2007, 5 November 2007), where Lam J (as Lam PJ then was) said that a candidate cannot expect the Court to grant relief simply because they say “Well, I failed to do it because of my forgetfulness”. There, Lam J refused relief to a candidate in the Village Representative Election who failed to lodge his election return within the statutory period as required by the ECICO.

21.  The candidate in Yiu Chun Fat gave oral evidence in Court. He said he was aware of the filing obligation but had then forgot about it. Lam J said the candidate did not spend much in expenses and filling in and lodging the return would be a simple task. He did not understand why the candidate did not do it if he had actually considered the matter. So, Lam J thought that the accurate way to describe the situation was that the Applicant simply did not care about his election duty enough and had given it too low a priority.

22.  Having considered the overall circumstances, I am satisfied that this is an appropriate case for the Court to make an order for the Applicant to be excepted from his failure in making available the Video for public inspection as required by sections 105(1) of Cap 541D.

23.  Whilst the Applicant also seeks to rely on the inadvertence limb, on the basis Mr Chan had forgot to upload the Video, this case is clearly distinguishable from Yiu Chun Fat. This is not a case of the Applicant’s giving too low a priority to or not caring enough about his obligations as a candidate. As fairly highlighted by the SJ, the Applicant had uploaded 136 items of advertisement to the open platform and had only omitted one. I also assumed the Applicant had complied with all other election duties imposed upon him because otherwise I would expect the EAC to have filed evidence drawing my attention to such facts as relevant to the current Application. The Applicant had appointed Mr Chan to handle his election affairs and I accept that Mr Chan had a heavy workload to cope with in the lead-up to 19 December 2021. In the circumstances, I accept that the non-compliance could be regarded as due to inadvertence.

24.  There is no evidence pointing to bad faith. The Video was uploaded to Facebook and, as reflected in the hyperlink provided to the Court, is publicly accessible. There was clearly no intention to hide the Video from the public’s inspection.

25.  What remains unexplained in the evidence is as to the delay of 6 months between the discovery of the non-compliance in January 2022 and the filing of the summons seeking the Court’s relief in July 2022. Given the Applicant’s belated attempt to meet the statutory requirement by the alternative route in March 2022, it might be thought that some serious consideration had been given to the matter or professional advice sought by that time. If counting from the deadline for compliance – 7 December 2021 – the delay was more than 7 months. Normally, the Court would expect an explanation as to the delay. However, in all the circumstances, I am still satisfied that it will be just to grant relief in the present case.

D.  Disposition

26.  Pursuant to the powers granted by section 106(2), I make an order for the Applicant to be excepted from his failure to comply with section 105(1). By operation of section 106(4), the Applicant is thus not liable to be convicted under section 105(9) because of the non-compliance.

27.  The usual costs order in this type of applications is to award costs to the SJ, who has taken a neutral stance but has assisted the Court by drawing attention to relevant facts or law. The SJ asks for costs to be summarily assessed at HK$35,570.00.

28.  The Applicant seeks no order as to costs on his summons, but has made no submissions on this point.

29.  I see no reason why the Court should depart from the usual approach of awarding costs against the Applicant in favour of the SJ. The burden was on the Applicant, who was in effect seeking an indulgence. The SJ has assisted in an appropriate manner.

30.  Having considered the statement of costs provided by the SJ and applying the usual approach in summary assessment, I award the SJ costs assessed in the sum of HK$35,000.