YIP YIU SHING CHRIS v. CHAN YUK MING

HCAL 8/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 8 OF 2016

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D E C I S I O N

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Introduction

1.  This is an application by the petitioner (the “Petitioner”) for direction that:

(1) his election petition be heard and tried together with the election petition in HCAL 19/2016 filed by another petitioner, Wong Ka Ho (“Mr Wong”);

(2) he and Mr Wong shall each deposit $10,000 into court as security for costs;

(3) he and Mr Wong shall apply to a judge in Chambers to fix the time and place for trial of both petitions together; and

(4) costs be in the cause of the petition.

2.  The Petitioner, Respondent and Mr Wong and another were candidates at a District Council election for Cheung Wah Estate held on 22 November 2015.  In a notice dated 23 November 2015, the Returning Officer for the constituency announced that the Petitioner, Respondent and Mr Wong secured 1,569, 1,814 and 1,710 votes respectively and  declared the Respondent to have been elected for the constituency.

3.  On 11 January 2016, the Petitioner lodged an election petition pursuant to section 50 of the District Councils Ordinance (the “Ordinance”).  Subsequently, Mr Wong also lodged his election petition in HCAL 19/2016.  On 16 February 2016, the Petitioner took out the present summons. 

The election petition scheme

4.  The Ordinance and the District Councils (Election Petition) Rules (the “Rules”) specified the procedural steps to be taken by a petitioner who wishes to question an election and the time limits within which such steps are to be taken.  There are only three simple steps. 

5.  The first step is to lodge an election petition pursuant to section 50 of the Ordinance.  The petition must be lodged within two months following the date on which the Returning Officer published the result of election in the Gazette.  The section does not give the court any discretion to extend the time limit. 

6.  Second, pursuant to rule 6 of the Rules, the petitioner has to serve on the respondent and the Secretary for Justice, a notice of the lodgement of election petition and the nature of the security for costs which the petitioner proposes to give in accordance with section 54 of the Ordinance.  The petitioner only has two days to serve the notice.   

7.  The third step is to give security for costs. Section 54(1) of the Ordinance provides that within five days after lodgement of an election petition, the petitioner must give security for all costs that may become payable by him to any witness who gives evidence in the proceedings on his behalf or to any respondent.  The amount of security to be provided, which shall not exceed $20,000, and the manner and form in which it is to be provided shall be determined by the court.  For the purpose of seeking that direction, rule 7(1) provides that the petitioner shall apply by inter partes summons to a judge in chambers at the time of lodging the election petition or within two days thereafter.  However, rule 7(4) provides a simpler procedure for petitioners who are prepared to give the maximum amount of security, ie $20,000 by depositing cash in court.  He may apply by ex parte summons and the Registrar shall order his attendance before the Registrar within not later than five days after the lodgement of the election petition. 

8.  In short, a petitioner shall give security for costs, being not more than $20,000 within five days of his lodgement of the election petition.  If he is prepared to pay the maximum amount of security in cash, he may apply by ex parte summons to the Registrar to make payment in court.  If he wishes to seek direction for giving security in a lesser sum or otherwise than in cash, he has to apply by inter parte summons to a judge in chambers at the time he lodges his petition or within two days thereafter.  The court has jurisdiction to extend the time limit in respect of these applications.  It would be expedient to adopt the ex parte procedure. 

9.  Under section 54(3), if security is not given, the petition is taken to have been withdrawn.  When the above three steps are completed, the petitioner shall within 28 days of giving security apply, pursuant to rule 10, by summons to a judge for a time and place to be fixed for the trial of the election petition.  Failing that, the respondent may within seven days thereafter make the application. 

10.  These are simple rules.  They impose very tight time limits.  There are good reasons.  Election petitions are taken out to challenge the result of a District Council election.  For the District Council to be able to function efficiently, it is important that there is finality in the election.  It cannot be left for an unduly long period of time in an uncertainty as to whether an elected member, ie the respondent, would be successfully challenged.  That apart, the respondent who is being challenged has to prepare his case; identify, locate and interview his witnesses; take witness statements; collect exhibits; collate evidence, etc.  He has to do so before witnesses and exhibits disappear or otherwise become unavailable or could not be located.  Usually, the petitioner who initiates a petition has a good head start and the respondent is at a disadvantage.  This makes time all the more of importance to the respondent.  That is why the Ordinance and the Rules impose very tight time limits and anticipate petitioners to prosecute their election petition regularly and with due diligence.

11.  It is clear from these three simple rules that the Ordinance and the Rules anticipate that at the time a petitioner lodges the petition, which would be within two months of publication of the election result, he should have put himself in the position of being able and ready to serve the notice of lodgement of the election petition.  What he has to do is simply to make a copy of his petition and state his proposal for giving of security, without having to actually make any payment into court, and then serve them on the Secretary for Justice and the respondent.  I cannot think of any practical difficulties in serving the notice on the Secretary of Justice or the respondent or any reason why they would evade service.  The respondent certainly has an office where he could be located and served.  The period of two days allowed by rule 6 is very much like a grace period.  While the court has discretion to extend the time limit, as the petitioner is expected to prosecute his petition regularly and with due diligence, application for extension of time should be made at the time of lodgement of the election petition, insofar as the need for such extension is foreseeable.

12.  It is also clear that the Ordinance and the Rules anticipate that the issue of security for costs be dealt with within five days of lodgement of election petition.  If direction has to be sought for giving security by payment of a lesser sum than $20,000 or in other forms, direction should be applied for at the time of lodging the petition. 

13.  While the court has discretion under the Rules to extend time limits, such discretion should be exercised in accordance with legal principles.  It should be sparingly exercised and only for good reasons. Usually leave to serve a notice out of time has to be obtained before the time limit expires.  Retrospective leave may be granted only under unforeseen and rare circumstances.  Ignorance of the procedures and time limits under the Rules is not a good reason.  People who engage in such sort of election activities must have informed themselves about the rules of the election and the rules of challenging it.  After all, there are but a few simple rules to comply with.

Discussion

14.  The Petitioner has mentioned nothing in his supporting affirmations as to whether he has served the notice of lodgement of election petition on the Secretary for Justice and the Respondent.  Upon my enquiry, it transpired that he has not.  He has only served the present summons on them.  He has not given any security either.  The five days’ period from the time of lodgement of election petition for giving security has long lapse.  Instead, he now seeks to make a belated application to split his obligation with Mr Wong.  Thus, other than lodging his election petition within time, the Petitioner has not complied with any time limits required under section 54 and rule 6.   No explanation has been given for the delay and non-compliance.  

15.  Mr Jim, solicitor for the Petitioner, relying on the fact that the petition has been lodged within time, argues that as the Petitioner has not withdrawn his petition, the petition is alive.  That is no answer to his failure to comply with the time limits laid down by the Ordinance and the Rules.  Specifically, as no security has been paid the petition is deemed to have been withdrawn under section 54(3).

16.  Mr Jim argues that the court has wide discretion under various provisions of the Ordinance to extend the time for compliance.  He asks for retrospective leave to serve the notice of lodgement of election petition and undertakes to pay the maximum amount of security into court.  Be that as it may, the court’s discretion has to be exercised in accordance with legal principles.  The Petitioner has not advanced any reason in his two affirmations filed in support of the petition and his application to explain his non-compliance.  There is simply no basis on which the court could exercise any discretion in his favour.  I need not emphasize the importance of compliance with time limits in election petitions.  The court’s discretion is not to be exercised arbitrarily.

17.  Mr Jim suggests the following possible reason for the delay.  First, Mr Wong’s election petition is founded on the same grounds as the Petitioner’s and involves common witnesses, including Mr Wong.  Hence, it would be convenient and costs saving for the two petitions to be heard and tried together.  Second, Mr Wong is acting in person and has indicated that he would apply for legal aid, and his petition may be stayed pending his legal aid application. Hence, Mr Wong submits that it might be desirable and convenient for this application to wait for the outcome of Mr Wong’s legal aid application.  He applies to have the present summons adjourned for two months.

18.  With respect, Mr Jim’s argument is all convoluted, directed at different issues and misconceived.  Assuming what Mr Jim submits are factually correct, the fact remains that the Petitioner has not served the notice of lodgement of election petition; has not given security for costs; and his petition is deemed to have been withdrawn.  All of his submissions are related to matters to be determined on another direction hearing, had the Petitioner complied with the second and third steps I mentioned above and then sought directions for the further conduct of the petition, pursuant to rule 10. As for Mr Jim’s “legal aid stay” argument, it is totally irrelevant.  Whether Mr Wong’s petition will be stayed does not mean the Petitioner’s petition is or may be stayed.  That does not give the Petitioner any excuse not to comply with the time limits.

19.  Lastly, the Petitioner’s application is also misconceived.  He seeks to have his petition heard together with Mr Wong’s, to split the obligation to give security equally with Mr Wong and to require Mr Wong to apply together with him to a judge in chambers for directions for the joint trial of the two petitions.  Mr Wong was not made a party to this application and has no opportunity to be heard.  Furthermore, the application for directions for joint trial may not be made until all the three steps I mentioned above have been completed.  They have not.   

20.  The Petitioner never prosecuted his election petition regularly or with due diligence.  He offered no reasons for his non-compliance with the time limits.  I do not see why I should exercise my discretion to grant him extension of time.  His non-compliance is therefore fatal and incurable.  His petition is deemed to have been withdrawn under section 54(3). 

Conclusion

21.  For the above reasons, the Petitioner’s summons is dismissed with costs to the Respondent.  There is no application for costs by the Secretary for Justice.