CHIANG LAI WAN v. TANG SIU TONG AND ANOTHER

HCMP 2575/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2575 OF 1998

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J U D G M E N T

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1. This is an election petition brought under s.61 of the Legislative Council Ordinance (LCO).

2. The Petitioner and 1st Respondent were candidates for the Regional Council Functional Constituency (RCFC) in the Legislative Council elections held on 25th May this year. The 2nd Respondent was the Returning Officer. A third candidate was Ngan Kam Chuen (Mr. Ngan). Under the preferential elimination system of voting, Mr. Ngan was eliminated after the first count of the 50 ballots that were cast. After second preferences marked on the ballots which had favoured Mr. Ngan were transferred to the Petitioner or 1st Respondent, the 1st Respondent had 25 votes and the Petitioner 24. The 2nd Respondent then declared the 1st Respondent the successful candidate and duly elected.

3. There is some dispute as to what exactly was said and done about 4 ballot papers thought to be questionable but which were declared valid by the 2nd Respondent. Nothing turns on this. What is not in dispute is that 5 ballot papers are now challenged by the Petitioner who asserts that they should not have been counted. The result would then have been in her favour. Accordingly, the Petitioner claims there was a material irregularity in relation to the counting of the votes and asks this court to determine whether the 1st Respondent was duly elected, and if not, whether the Petitioner was duly elected in his place.

4. Before examining the 5 ballot papers, it is convenient to look at the relevant legislation. Section 47 of LCO provides

"47. How election is to be conducted

(1) At every contested election to return a Member for a constituency or for the Election Committee -

(a) a poll is to be taken of the electors of the constituency or of the members of that Committee; and

(b) the voting at the poll is to be by secret ballot.

(2) A poll is to be conducted in accordance with the regulations and regulations in force under the Electoral Affairs Commission Ordinance (129 of 1997).

(3) The Returning Officer appointed for a constituency or for the Election committee is responsible for supervising an election for the constituency or by that Committee in accordance with this Ordinance and the Electoral Affairs Commission Ordinance."

5. LCO created 28 functional constituencies as set out in Schedule 1 to that Ordinance. Section 50 then provides

"50. System of voting and counting of votes:
functional constituencies specified in
Parts 1 and 2 of Schedule 1

(1) This section applies to elections for functional constituencies specified in Parts 1 and 2 of Schedule 1.

(2) Voting and counting of votes at a poll for the return of a Member for a functional constituency to which this section applies is to be conducted in accordance with the preferential elimination system of voting.

(3) An elector entitled to vote at an election to return a Member for a functional constituency to which this section applies is entitled to cast a single vote. That vote is transferable amongst the candidates nominated for election, with the elector marking the elector's preference or preferences for those candidates on the ballot paper against one or more of those candidates in descending order.

(4) In order to be elected, a candidate must obtain an absolute majority of the votes.

(5) If no candidate obtains an absolute majority of the votes at a particular stage of the counting of votes at a particular stage of the counting of votes -

(a) the candidate with the least number of votes, or the candidates with the least number of votes if 2 or more such candidates have an equal number of votes, is to be eliminated at that stage; and

(b) that candidate's votes, or those candidates' votes, are to be transferred to the candidates then remaining in accordance with the next available preferences marked on the ballot papers.

This process is to continue until one candidate obtains an absolute majority over the other candidate or candidates then remaining.

(6) If, after the final stage of counting of votes at an election for a functional constituency to which this section applies, the remaining candidates have an equal number of votes, the Returning Officer must determine the result of the election by drawing lots."

6. RCFC is in Part 1 of Schedule 1.

7. Section 49 sets out the rather more complicated quota system for geographical constituencies. Sections 51 & 52 then provide for a "first past the post" voting system for the other functional constituencies and for the Election Committee.

8. Section 54 provides

"54. Consequences of non-compliance with requirements of this Ordinance

In any proceedings brought to question the validity of an election, the Court must not declare the election to be invalid only because of -

(a) a failure to comply with the regulations or with regulations in force under the Electoral Affairs Commission Ordinance (129 of 1997); or

(b) a mistake in the use of a nomination form,

if it appears to the Court that the election was conducted in accordance with the principles laid down in this Ordinance and the Electoral Affairs Commission Ordinance (129 of 1997) and that the failure to comply or mistake did not affect the result of the election."

9. Section 56 reads

"56. Election to be presumed to be valid

Every election is presumed to be valid until it is questioned by an election petition within the period permitted by Section 65 and the Court, on the hearing of the petition, determines that the election is invalid."

10. LCO then turns to election petitions and provides

"61. Election may be questioned only by election petition made on specified grounds

(1) An election to return a Member may be questioned only on the following grounds -

(a) the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (129 of 1997) to have been elected as a Member at the election was not duly elected because -

......

(iv) material irregularity occurred in relation to the election or to the polling or counting of votes at the election; or

(2) An election to return a Member may be questioned only by an election petition lodged under Section 62."

11. Finally, Section 67 provides

"67. Court to determine election petition

......

(2) At the end of the trial of an election petition in relation to an election that was contested, the Court must determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead."

12. The Electoral Affairs Commission Ordinance (EACO) was enacted shortly before LCO. The Commission established under EACO was given a broad responsibility for the conduct and supervision of elections including those for the Legislative Council. Section 6 empowered the Commission, after public consultation unless impracticable, to issue guidelines relating to the conduct, supervision or procedure at an election. Section 7(1) empowered the Commission by regulation to provide for among other things

"(b) the conduct or supervision of, and procedure at any election;

(v) the supervision of polling stations and the regulation of the ballot;

(vi) the procedure or procedures for voting and counting at an election;

(i) the determination or specification of forms"

13. EACO also provides for the appointment of a Chief Electoral Officer to perform the functions of the Commission. The Commission may delegate its functions to the Chief Electoral Officer but not, among other things, the power to issue guidelines and to make regulations.

14. The Commission did make regulations. Pursuant to its power under s. 7, it made the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (the Regulation). The individual parts of the Regulation are somewhat confusingly called "sections". Section 49(2) & (15) provide

"49. Form of ballot papers and order of appearance of lists or names of candidates on ballot paper

(2) A ballot paper to be used to vote for a special functional constituency is to be in Form 2 in Schedule 3.

(15) A number may be printed on the counterfoil of a ballot paper, but that number is not to be printed or shown in any manner on the ballot paper."

15. A "special functional constituency" is one of those in Parts 1 and 2 of Schedule 1 of LCO.

16. There then comes the Regulation around which this case principally revolves

"56. How special functional constituency ballot papers are to be marked

(1) An elector or authorized representative voting for a special functional constituency must mark the ballot paper as described in Section 50(3) of the Legislative Council Ordinance (134 of 1997).

(2) For the purposes of this section and Section 50(3) of the Legislative Council Ordinance (134 of 1997), an elector or authorized representative must mark the first preference by entering "1" (Arabic numeral) against the name of a candidate on the ballot paper and indicate the other preferences in the descending order beginning with "2" (Arabic numeral).

(3) If a person referred to in subsection (1) marks a first preference for 2 or more candidates (whether or not that person marks preferences for any other candidate) or does not mark a first preference (whether or not that person marks any other preference) the ballot paper is void."

17. Sections 57 & 58 are also helpful

"57. How Part 3 functional constituency ballot papers are to be marked

An elector or authorized representative voting for a part 3 functional constituency is to mark his or her ballot paper by writing "√" against the candidates of his or her choice, up to the number of Members to be returned for that functional constituency.

58. How EC ballot papers are to be marked

A person voting at the Election Committee election must mark the ballot paper by shading the space provided for that purpose on the ballot paper against the name of each candidate, against not more than and not less than 10 candidates of his or her choice."

18. The other important section in this case is section 80

"80. Ballot papers which are not to be counted when counting the votes

(1) When counting the votes, the following ballot papers are not to be counted -

(a) on which there is writing or a mark by which the elector can be identified;

(b) which has the words "重複" and "TENDERED" endorsed on the front of it;

(c) which has the words "損壞" and "SPOILT" endorsed on the front of it;

(d) which is unused;

(e) which is substantially mutilated;

(f) which is unmarked;

(g) subject to subsection (2) -

(i) a GC ballot paper which is not marked in accordance with Section 55; or

(ii) an FC ballot paper for a Part 3 functional constituency which is not marked in accordance with Section 57;

(h) an FC ballot paper for a special functional constituency which is not marked in accordance with Section 56;

(i) an EC ballot paper which is not marked in accordance with Section 58; or

(j) which the Returning Officer determines as being void for uncertainty.

(2) In the case of a ballot paper referred to in subsection (1)(g)(i) or (ii), if -

(a) the deviation from the requirements of the relevant section is only in the symbol used for marking the vote;

(b) the intention of the elector is clear; and

(c) the Returning Officer is satisfied that the symbol was not used for the purpose of identifying the elector or authorized representative or as part of a conspiracy,

the Returning Officer may count that ballot paper."

19. Section 81 then requires the Returning Officer to make a decision about any ballot paper which appears to fall within s.80. Subject to a challenge by way of election petition, the Returning Officer's decision is final.

20. Guidelines pursuant to s.6 EACO were issued by the Commission on 28th February 1998 (the official guidelines). I need only say that they appear faithfully to reflect the provisions of the Regulation.

21. Unofficial guidelines were issued by the Chief Electoral Officer, after clearance with the Secretary for Justice, for the assistance of Returning and Polling Officers. Surprisingly, they are materially at variance with the official guidelines issued by the Commission, apparently in conflict with the Regulation, and inconsistent among themselves. Whether the official or unofficial guidelines are right, is, as far as this petition is concerned, irrelevant because it will be for me to determine the proper construction to be put upon and proper interpretation to be given to the various legislative provisions which have been set out. In that exercise, the guidelines carry no weight. I express the hope, however, that before the next elections, the authors of the guidelines will have put their heads together so as to produce, after taking into account this judgment, guidelines which are both consistent and which accurately reflect the law.

22. I now turn to the 5 questioned ballot papers

(1) this was marked only with a "√" against candidate A (who was the Petitioner)

(2) this too was marked only with a "√" against candidate B (who was 1st Respondent)

(3) was marked with both a numeral "1" and a "√" against B

(4) was marked only with a "√" against B. It also had attached a counterfoil numbered 003201

(5) was marked with a numeral "1" against C (who was Mr. Ngan) and numeral "2" against B. It, too, had a counterfoil attached, numbered 003461

23. There seems no dispute that papers 1 to 4 were challenged by the Petitioner following the count on the basis that they were not marked in accordance with s.50 of LCO and s.56 of the Regulation. The 2nd Respondent then determined that papers 1, 2 & 4 were valid because they fell within the unofficial guidelines. These guidelines indicated that, in relation to the special functional constituencies, a ballot paper containing a single "√" instead of an Arabic numeral or numerals was to be valid.

24. As to paper 3, the 2nd Respondent took the view that the "√" simply reaffirmed the 1st preference expressed by the Arabic numeral "1".

25. Following presentation of the petition, pursuant to order of this court all 50 ballot papers were inspected. Two of them, papers 4 & 5 were found to have counterfoils attached. Objection is now made to these as well as to paper 3 on the basis that "there is a writing or mark by which the elector can be identified".

Ballot papers 1, 2 & 4 - the "√"

26. Although another consideration affects paper 4, as far as the ticks are concerned the Petitioner's case is simple. It is that the papers were not marked as required by s.56 of the Regulation because ss.(2) states clearly that an elector must mark his first preference by entering an Arabic "1" and other preferences in descending order by marking an Arabic "2" and so on. Any deviation, it was argued by Ms. Li on behalf of the Petitioner, will invalidate the ballot paper. There is no scope for ascertaining the intention of the elector and, even if there is, no clear intention can be discerned from a tick which could indicate several things including an intention to spoil the paper.

27. I have no difficulty with the last point. If it becomes necessary for me to ascertain the elector's intention in relation to these 3 papers, plainly that intention was to vote and vote only for - in other words, prefer - the candidate against whose name the "√" appears. I expressed that view during the course of the hearing and I do not now resile from it.

28. So a simple issue arises - is an elector in a special functional constituency, who wishes to vote or express a preference for one candidate only, confined to signifying his vote or preference by an Arabic "1".

29. For the 1st Respondent, Mr. Hoo mounted multiple attacks which can be encapsulated thus:

(1) the requirement of s.56(2) of the Regulation to mark a first preference by an Arabic "1" is only directory where the elector has only one preference. Thus, a "√" can and should be considered as marking a first preference.

(2) even if there was an irregularity by non-compliance with s.56(2), it was not material within the meaning of s.61 of LCO as the elector's intention is clear and the underlying principle of voting contained in s.50(3) LCO was complied with.

(3) Sections 56(3) and 80(1)(h) of the Regulation are ultra vires.

30. A theme running through the whole of Mr. Hoo's submission was that LCO makes a clear distinction between the principles laid down in LCO and EACO and regulations made under LCO and the Regulation which are in force as subsidiary legislation. This distinction is to be found in s.54 of LCO. Mr. Hoo drew a comparison with s.37(1) of the Representation of the People Act 1949 which is similar, but not identical to, s.54 of LCO, one difference being that it refers to "the law as to elections" rather than "the principles laid down in the Ordinance...". Consequently, in Morgan v. Simpson [1975] 1 QB 151 Stephenson L.J. was constrained at p. 167 to say of s.37

"Blurred is the distinction between the Act and the rules, between breaches of principle and breaches of the rules"

31. It was Mr. Hoo's position, therefore, that I must be astute to distinguish between principles, or basic concepts as he called them, set out in the two Ordinances, and the Regulation which is simply legislation giving effect to those principles.

32. Considerable time was devoted to an analysis of s.54 of LCO and analogous provisions in the 1947 Act and the Ballot Act 1872. In my view, however, I think this was something of a red herring. First, s.54 LCO is concerned with whether or not an election was invalid. I am not being asked to make such a determination. Rather, I am invited to affirm the validity of the election itself, but to declare that the apparently successful candidate was not duly elected because certain votes should not have been counted.

33. Second, Mr. Hoo drew a distinction, which is clearly to be seen in the English authorities to which I was referred, between voters who for one reason or another have not correctly recorded their votes, so that the vote should not be counted; and election officials who by some act or omission have disenfranchised certain voters and in effect not conducted a proper election at all. In relation to the acts or omissions of such officials, the court, where the criteria, for example, contained in s.37 of the 1947 Act are satisfied, will declare the election void. In so far, therefore, as there is a separate cause of action available under s.54 LCO, it is, I am satisfied, one that is directed primarily at the situation where, by some act or omission on the part of an election official, there has been no true election.

34. For the purpose of this petition, therefore, I am satisfied that I have to confine my consideration to the proper construction of s.50 of LCO and ss.56 & 80 of the Regulation. In so doing, I accept that the Regulation which is subsidiary legislation must be in accordance or consistent with the principles laid down in the primary legislation.

35. According to Mr. Hoo, the fundamental maxim which runs through contested election cases is that

"In all cases which have been before the courts in recent years, the judges have all indicated that the voter's franchise should not lightly be lost by declaring a vote to be bad if there is a clear intention shown as to what the voter intended to do."

36. That, as Mr. Hoo put it, is the common law. Unfortunately, it is not. That passage appears in Schofield's Local Government Elections 7th Edition (1976) and was cited by Lord Denning M.R. at p.1229 in Ruffle v. Rogers [1982] 1QB 1220. Doubtless Lord Denning was sympathetic to such a statement. However, he went on to determine the case upon the construction of rule 43(3) of the Local Elections (Principal Areas) Rules 1973 (SI 1973 No. 79). I understand that there is a similar rule in relation to parliamentary elections. Rule 43(3) reads

"A ballot paper on which a vote is marked - (a) elsewhere than in the proper place; or (b) otherwise than by means of a cross;" - that in this case - "or (c) by more than one mark; shall not by reason thereof be deemed to be void (either wholly or as respects that vote), if an intention that the vote shall be for one or other of the candidates clearly appears and the way the paper is marked does not of itself identify the voter and it is not shown that he can be identified thereby."

37. The earlier Ballot Act 1872 contained no such ameliorating provision. Hence the development by the courts of the maxim referred to which has now been translated into statutory law both in England and, on a more qualified basis, in Hong Kong.

38. So that case was decided upon the basis of rules relating to elections in England and not on the basis of common law. Further, it is to be noted that rule 43(3) is the antithesis of s.80 of the Regulation in that it expressly saves a ballot paper which is not appropriately marked, whereas s.80 expressly provides for such ballot papers not to be counted albeit with a saving provision for some but not all of such papers.

39. I am, however, prepared to accept that an elector's franchise should not lightly be lost by declaring his vote to be bad. My ultimate decision, therefore, will be made with that firmly in mind.

40. As Mr. Hoo submitted, the principles of the preferential elimination system of voting are set out in s.50 of LCO. In particular, s.50(3) envisages two options for an elector, namely to indicate one preference; or to indicate two or more preferences in which event his vote is transferable amongst the candidates nominated for election. It is not in dispute that the elector does have such options.

41. Subsection (3) only requires the elector to mark his preference or preferences on the ballot paper. The expression "in descending order" only becomes effective when the voter indicates two or more preferences. One way of marking a ballot paper in descending order is that described by s.56(2) of the Regulation, that is by entering the Arabic numerals 1, 2 and so on. In the event, however, that the elector has only one preference, it makes no difference, according to Mr. Hoo, for all practical purposes whether the elector marks the paper with an Arabic "1" or with a "√" provided that the intention is clear. Section 50(3) LCO, therefore, allows the elector two options: to express only one preference by marking the ballot paper, or to express two or more preferences by marking the ballot paper in descending order. These options or principles, said Mr. Hoo, do not mandate that the elector, who has only one preference, to mark that preference with an Arabic "1" instead of a "√".

42. Mr. Hoo went on by pointing out that s.56(1) of the Regulation begins by stating the general principle to be found in LCO that the elector "must mark the ballot paper as described in section 50(3)". Section 56(2) goes on to stipulate a specific method of marking, namely to "mark the first preference by entering "1" (Arabic numeral) "and then go on to "indicate the other preferences". It should be noted that in s.50(3) of LCO, the words "preference" and "preferences" alone are used.

43. The argument, therefore, is that the requirement for the use of Arabic numerals is confined to the expression of more than one preference. Section 50(3) LCO permits an elector to have only one preference and simply requires that preference to be marked on the ballot paper. If such preference is invalidated because the elector records his preference with a "√" instead of an Arabic "1", such invalidation would distort, and in this case change, the voting result under s.50(3).

44. I was asked, therefore, to interpret the requirement under s.56(2) of the Regulation of marking the first preference by the numeral "1" as being directory rather mandatory in the case of an elector having only one preference when the question of descending order has no relevance. Such an interpretation would permit an elector to mark his one preference by a tick or some other clear symbol and to be considered as having marked a first preference within the meaning of ss.56(3) and 80(1)(h) of the Regulation.

45. The directory approach was one adopted by the court in Woodward v. Sarsons [1875] LR 10 CP 733 when the Ballot Act was under consideration and, in particular, s.28 which provided that "the schedules and the notes thereto and directions therein shall be construed and have effect as part of this Act". At p. 746 Lord Coleridge C.J. giving the judgment of the court said

"... in order to determine the preliminary question, which is, whether there has been a material breach of the Act, - and which must be determined before determining what effect such breach has upon a vote or on the election, - the general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."

46. That of course is an unexceptionable statement of the law. It provided a basis for the English courts to allow some latitude where an elector had not marked his ballot paper with a "X", assuming his intention was clear. Whether s.56 of the Regulation is to be construed as directory is, of course, the issue.

47. In final support of his argument, Mr. Hoo prayed in aid the provisions of s.19 of the Interpretation and General Clauses Ordinance, conjuring me to attain the "true intent, meaning and spirit" of LCO.

48. Mr. Chan, for the 2nd Respondent, supported the submission of Mr. Hoo. He said that s.56(2) of the Regulation applies to the expression of multiple preferences only. Section 56(3) is merely an expansion and elucidation of ss.(2) These two subsections do not clearly straitjacket an elector into using an Arabic "1" where he has only one preference to express.

49. Mr. Chan said that it makes prefect sense that a preferential marking system is only necessary where there is more than one preference to be expressed. This is emphasised, he said, by the conjunctive requirement in s.56(2) that the elector must mark an Arabic "1" "and indicate the other preferences". There is nothing to suggest that an elector cannot have one preference only and no basis for suggesting that s.56(2) of the Regulation was intended to take anything from s.50(3) LCO. Subject to the question of certainty as provided for in s.80(1)(j) of the Regulation, there is no prescription on how an elector having one preference is to mark his ballot paper.

50. As far as s.56(3) of the Regulation is concerned, Mr. Chan said that the second part, namely "does not mark a first preference (whether or not that person marks any other preference)" applies to cases where the elector has preferences. Mr. Chan said it would not be a correct interpretation that the legislature somehow intended to take away the right to a single preference by a side wind.

51. I do not accept, as both Mr. Hoo and Mr. Chan suggested, that there is some lacuna in the legislation in that no provision has been made for the elector who wishes to express a single preference. The principles, of which Mr. Hoo is so fond, are also to be found in s.47 LCO which requires a secret ballot to be conducted in accordance with inter alia the Regulation. So there at once is a very clear indication of the importance of the Regulation, suggestive of its requirements being mandatory rather than directory.

52. Section 50 LCO provides for the marking of a preference or preferences on the ballot paper. In contrast, s.51 which provides for the other 22 functional constituencies, contains no mention of marking the ballot paper. Section 56(2) of the Regulation then dictates how the marking provided for in s.50 LCO is to be carried out. For my part, I have no difficulty in comprehending s.56(2). I do not accept that there is any distinction, apart perhaps from a semantic one, between the use of "preference" in s.50 LCO and "first preference" in s.56(2) of the Regulation. Reading s.56 as a whole, as I must, it is clear that an elector is free to exercise a single preference, but he must do so by indicating that preference with an Arabic "1". In spite of Mr. Chan's gallant attempts to the contrary, there is clear support for this construction to be found in ss.(3). If a ballot paper is not to be void, the elector must mark a first preference "whether or not that person marks any other preference", in other words, a single preference. And the way in which that first or single preference is to be marked is provided for in ss.(2). I can see no inconsistency with s.50 LCO.

53. RCFC has only 50 electors. It is an exceedingly small constituency. One or two votes can therefore exert a disproportionately large influence on the outcome of an election within this constituency. In the past, at least one candidate within this constituency has been convicted of buying or attempting to buy votes. There are, therefore, good and sound public interest reasons for having a different system of voting for such a constituency and for laying down a detailed procedure for voting and disallowing any variation from that procedure. Thus, as far as possible, connivance and corruption might be eliminated. It is, in my judgment, equally important in such a small constituency that the result should not be one which turns upon the discretion of the Returning Officer.

54. It is therefore necessary to consider the argument that ss.56 and 80 are at least in part ultra vires. This fell into two parts. First, it was suggested that, in so far as ss.56(3) and 80(1)(h) purported to invalidate a ballot paper which clearly indicated a single preference within the meaning of Section 50(3) LCO, they are ultra vires and of no legal effect. As I see it, this is simply another way of looking at the argument that subsidiary legislation must be consistent with its primary legislation. I have already, I hope, disposed of this argument.

55. Second, it is said that these two sections of the Regulation wrongly discriminate against the 6 functional constituencies specified in Parts 1 and 2 of the First Schedule to LCO. In LCO "functional constituency" is defined as a functional constituency specified in Schedule 1. Schedule 1 includes all 28 functional constituencies although it is sub-divided into 3 parts with RCFC appearing in Part 1 together with the Urban Council and Heung Yee Kuk Functional Constituencies. Trouble looms, however, in the Regulation which introduces a definition "special functional constituencies" meaning the functional constituencies specified in Parts 1 and 2 of Schedule 1 of LCO. Because LCO itself does not separate or discriminate against any of the 28 functional constituencies, it was contended to exclude 6 of these constituencies from the saving provision that applies to the remaining functional constituencies is discriminatory and ultra vires s.7 EACO.

56. This is an ingenious argument but wholly devoid of merit. LCO itself does separate out and give special treatment to the 6 functional constituencies appearing in Parts 1 and 2 of the First Schedule. In the Schedule itself, they are isolated from the majority of the functional constituencies. Then, in the body of the Ordinance itself, a unique voting system is prescribed in s.50 for the 6 functional constituencies appearing in Parts 1 and 2 of the Schedule. In the Regulation, effect is simply given to that prescribed system. The definition "special functional constituency" is in my judgment no more than a convenient way of identifying the 6 functional constituencies. For reasons which I have already expressed, the legislature was according special treatment to these functional constituencies and, because of their small size, was concerned that there should be no room for argument over the ballot papers by an outright prohibition on any deviation from the required marking.

57. I come to the conclusion, therefore, that s.56 of the Regulation is consistent with s.50 LCO, that it is mandatory and that the expression of a single preference by marking an Arabic "1" is essential. In so far as it was suggested that the irregularity in using a "√" instead of an Arabic "1" is not material, I do not see how that argument survives the finding that there was breach of a mandatory requirement.

Paper No. 3

58. This paper was marked with a "√" as well as an Arabic "1".

59. The Petitioner's complaint is similar to that in relation to papers 1, 2 and 4, namely it was not marked in the manner required by s.56 of the Regulation.

60. This elector did, as required, indicate his single preference by writing an Arabic "1". The "√" is an unnecessary addition. There are perhaps two explanations for this. First, the elector may have been seeking to emphasize his choice of candidate. Second, he may have inadvertently placed the "√" on the paper before appreciating his error. If he had just voted in his geographical constituency, he would have signified his vote by a tick as required by the Regulation. Further, the Government's publicity for the elections generally has been drawn to my attention. That publicity emphasized the importance of voting and signified that the right to vote was to be exercised by placing a "√". A "√" of substantial proportions was illustrated. It is easy to understand therefore why the elector could have made this error. It is also not difficult to appreciate that he would have been reluctant to return to the Polling Officer to try and obtain another ballot paper.

61. Although the requirements of s.56(2) of the Regulation are, as I have found, mandatory and should be strictly followed, I am satisfied that there is room here for flexibility. The English cases to which I was referred show that the courts, after an early strict application of relevant legislation, later relented and permitted some deviation from the required mark. These cases, however, are interesting rather than helpful because they contain decisions made against somewhat different statutory regimes and, at least as far as the Ballot Act was concerned, against very different social and political conditions.

62. Here, the elector made the essential mark signifying his preference. That he sought to emphasise it or corrected an error should not disenfranchise him.

63. I do not find this paper to be invalid because of s.80(1)(h).

64. Objection is further taken to this paper on the basis of Section 80(1)(a) of the Regulation. It is important to note as Eveleigh L.J. said in Ruffle v. Rogers at p.1231

"The statute does not say "might"; it says "can." Handwriting, as I have said, may be a pointer, but it may not. These doubts were clearly shared by Ridley J. in the Borough of Exeter Case (1911) 6 O'M & H. 228. Ridley J. said, at p.230:

"In the circumstances I should have thought that the rule might well be drawn not exactly at the line where it was in Woodward v. Sarsons L.R. 10 C.P. 733, but at another one, namely, that there must be something in the writing, in the words upon the paper more than the mere handwriting, to give facility of identification of the voter.""

65. In the case there cited, the Election Court was dealing with s.2 of the Ballot Act which directed that nothing should be written or marked on a ballot paper "by which the voter can be identified". So the provision was identical to the provision contained in s.80(1)(a) of the Regulation. At p.232 Channell J. said

"...if you come to the conclusion on looking at the paper that the real thing that the man has been doing is to try badly and mistakenly, not understanding the Act of Parliament - to try to give his vote and to make it clear whom he votes for, if you come to the conclusion that that is what it is, then those marks are not to be considered to be marks of identification unless you have positive evidence of some agreement to show that it was so. If you had a positive agreement that there was a person going about and bribing voters and saying, "Now, you shall have so much for you vote, but to satisfy me you must not only vote for that particular candidate, but you must put two crosses to make it clear," and if such an agreement as that was proved, then the two crosses would become a matter of identification. But that is a thing which you do not get. That sort of thing may take place, but the one place where it is difficult to prove it is in the Election Court, and you do not know of such things. I think that that must be what the judges were referring to in speaking of evidence of an agreement which would make a particular mark an identification, - because it had been so arranged. But I think that the statute makes void all ballot papers which have on them marks other than those which indicate the intention to vote for a particular person, and which may be indications of the identity of the voter. And it seems to me that when you find a ballot paper which has got something clearly going beyond the intention to indicate for whom he votes, then you must hold that to be bad."

66. Upon looking at these and the other authorities to which I was referred, it seems to me that the writing or mark complained of must either itself, or taken in conjunction with another piece of evidence, lead to identification of the voter. Thus, a full set of initials, the writing of a name or even some very distinctive handwriting would be sufficient. In the absence of such distinctive writing or mark, the availability of some other piece of evidence to link that writing or mark to the elector would be sufficient. As Channell J. said, however, the availability of such evidence is something which you do not get.

67. There is no such evidence or even any suggestion of such evidence in this case. There is nothing to show that the combined "√" and Arabic "1" can lead to identification of the voter. This vote was therefore rightly counted.

Papers 4 & 5

68. By inadvertence, the counterfoil containing the number of the ballot paper was left attached to these two papers. The Petitioner complains that, because of this, the two electors can be identified. Further, it was a failure to comply with s.49(15) of the Regulation which provides that a counterfoil number is not to be printed or shown on a ballot paper.

69. In what one might call a normal constituency, having multiple electors, one or two ballot papers having the counterfoil attached would cause no problem. The polling station to which the ballot papers were issued could be identified, but not the individual electors. The mischief in this case, however, is that of the 47 polling stations having RCFC voters, 44 had one elector each and the remaining 3 had 2 each. Electors are allocated a polling station under s.30 of the Regulation. Accordingly, it is known at which polling station an elector will record his vote.

70. A pad rather like a cheque book, containing 50 RCFC ballot papers, was issued to each of the 47 polling stations with a RCFC voter. The Registration and Electoral Office keeps a record of the serial numbers on the counterfoil attached to ballot papers and the polling stations to which they are issued. It is therefore possible for what I will call electoral officials to ascertain from which book of ballot papers these two particular papers were detached and the polling station or stations to which those books were sent. That will almost certainly lead to identification of the electors concerned.

71. Ms. Li emphasized that the ballot was to be secret. It was of paramount importance that no one, including government officials entrusted with the conduct of the election, should know how a particular elector cast his vote. Governments, she said, particularly those of a stricter regime, like to know what electors are doing. It is therefore as important to a secret ballot that the government should not be able to identify voters as it is that political parties or candidates should not be able to discover how an elector has cast his vote.

72. I am not sure that Ms. Li's premise is correct. Section 2 of the Ballot Act provided in part that

"Each ballot paper shall have a number printed on the back, and shall have attached a counterfoil with the same number printed on the face. At the time of voting the ballot paper shall be marked on both sides with an official mark, and delivered to the voter within the polling station, and the number of such voter on the register of voters shall be marked on the counterfoil..."

73. Section 4 of that Act then provided for secrecy on the part of election officials.

74. Those provisions of the Ballot Act made identification of an elector a simple exercise. It was thought, however, to be sufficient that the appropriate officials were sworn to secrecy. In the present case, the exercise to identify a voter would be much less easy and require the collusion of two or more officials, all of whom, of course, are required to preserve the secrecy of the ballot.

75. In my judgment, this is not the mischief aimed at. The purpose of s.80(1)(a) of the Regulation is to ensure that individual candidates, their agents, their parties or anyone else outside electoral officials cannot identify individual voters.

76. On the material put before me, I cannot see that it is possible for any such person to discover the identity of a voter without the collusion of an electoral official. While candidates and other persons authorized to inspect the ballot papers and other documents under the Regulation might be able to identify the book of ballot papers from which a particular ballot paper came, they could not, as I see it, identify the particular polling station concerned and could not therefore identify the voter.

77. In so far as there was an irregularity in allowing counterfoils to be attached to these two papers in breach of s.49(15) of the Regulation, I do not regard it as material in the circumstances of this case.

78. I find therefore that these two votes were properly counted.

Determination

79. Of the 5 papers in question, it is my determination that papers 1, 2 and 4 each containing a single tick should not have been counted. Two of those papers were in favour of the 1st Respondent and one in favour of the Petitioner. Those votes must be deducted from the total recorded for each of these two candidates. The result then is that each candidate receives 23 votes. The votes are therefore tied.

80. For the purpose of s.67(2) of LCO, I determine that the 1st Respondent was not duly elected. I am unable to make any further determination. It may be necessary for the tie to be resolved by application of s.50(6) of LCO.

81. I have one short unrelated matter to mention. An Administrative Law List was established by Practice Direction which came into effect on 17th February 1997 (since 1st September 1998 known as the Constitutional and Administrative Law List). Election petitions are assigned to this list which is under the supervision of a judge. That judge assigns cases in the list to be heard by judges nominated by the Chief Justice to hear such cases. Had this petition been placed in its correct list, it may well be that the judge in charge of the list would have considered recommending to the Chief Justice that it be heard by more than one judge. Such a course might well be appropriate in the case of election petitions, there being no appeal from the Judge of the First Instance.

82. It is primarily the responsibility of solicitors, who file election petitions or other proceedings specified in the Practice Direction, to ensure that they are marked with the letters HCCA so that staff of the Registry will enter them in the correct list and give the appropriate number. It is not the responsibility of staff of the Registry to identify whether or not new originating process should more appropriately be assigned to a list other than that shown on its face.

83. The benefits to be derived from having a case assigned to a judge who has some familiarity with and expertise in that particular area of the law do not, I hope, need explanation.

84. I also determine that no other person was duly elected to the Constituency.