LEUNG WAI KUEN EDWARD v. SECRETARY FOR JUSTICE

HCMP 1321/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1321OF 2012

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JUDGMENT

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1. In these proceedings, the Applicant applied for relief under Sections 31 and 40 of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 [“ECICO”] in respect of his conducts at the King’s Park Constituency of the Yau Tsim Mong District at the District Council election 2011. The election was held on 6 November 2011 and he was returned as the elected candidate.

2. The election result was challenged by another candidate in the same election Lam Kin Man [“Lam”] and Lam did so by way of an election petition in HCAL 1 of 2012.  Some of the grounds of challenge relates to the conducts of the Applicant which Lam alleged to be illegal conduct under the ECICO. 

3. Quite apart from that, the alleged conducts were investigated by the public authorities.  The Applicant took out the present proceedings on 28 June 2012 to seek relief.

4. In view of the overlap with some of the issues raised in HCAL 1 of 2012, this court enquired with Lam’s counsel at a direction hearing on 12 September 2012 about his client’s stance with regard to the present proceedings.  At that hearing, counsel indicated that Lam would seek to intervene as he would wish to oppose the grant of relief as it might affect part of his claim in HCAL 1 of 2012.

5. On 12 September 2012, after hearing the parties, the court gave directions to facilitate Lam’s intervention in these proceedings.

6. On 18 September 2012, solicitor for Lam wrote to the court to indicate that Lam decided he did not wish to join in the present proceedings.  Upon concern being raised with regard to the implications of Lam taking such a course, solicitor for Lam wrote to the court on 18 October 2012 and, amongst other things, stated the position of Lam as follows:

(a)  If the court makes an order relieving the Applicant in these proceedings, Lam accepts that the alleged illegal conducts would no longer be a live issue in HCAL 1 of 2012; and

(b)  If the court refuses to make an order relieving the Applicant, the alleged illegal conducts would remain as a live issue in HCAL 1 of 2012.

7. Lam’s solicitor also pointed out that in the present proceedings, the burden is on the Applicant to satisfy the court as to the requirements under s31(2) of the ECICO.

8. On that basis, the court permitted Lam to withdraw from his undertaking (given on 12 September) to apply for joining in the present proceedings.

9. The matters in respect of which the Applicant seeks relief fall under three categories,

(a)  Failure to file consent of support forms in respect of some individuals or organizations which were named as his supporters in his election advertisements;

(b)  Omissions in relation to his filing of declaration of election advertisements; and

(c)  Omissions in relation to his filing of election account.

Consent of support forms

10. At the material time[1], Section 27(1) of the ECICO provided that a candidate who published an election advertisement which included the name of a person or an organization in such a way to imply support from such person or organization had to obtain the consent in writing from such person or organization. Failure to comply would render such publication an illegal conduct.

11. Under section 31 of the ECICO, the court may grant relief from penalties and disqualifications by reason of any act or omission of an applicant that, but for the relief, would be illegal conduct.  It further provides under s31(2) that the court can only grant such relief if -

(a)  it is satisfied that the act or omission was due to inadvertence, an accidental miscalculation or any reasonable cause and was not due to bad faith; and

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

12. The court must also be satisfied that requisite notice of the application has been duly given.  There is no difficulty in this respect in the present proceedings.

13. Upon the grant of relief what would otherwise be illegal conduct would no longer be regarded as illegal conduct for the purpose of any proceedings for penalties and disqualifications, see s31(3) and (4). Thus the reference to “but for this section, would be illegal conduct” in s31(1).

14. It is therefore rightly accepted by Lam that if relief were granted in the present proceedings, the allegation of illegal conducts for the same matters would cease to be a live issue in the election petition.

15. In the present case, the Applicant accepts that there are 52 supporters in respect of whose support (which had been included in his election advertisements) he had omitted to file the consent of support forms.

16. There is no statutory requirement under the ECICO that the support in writing has to be in a particular form or that it has to be filed by a certain date.  The only statutory requirement in the ECICO is that the support has to be confirmed in writing before the publication of the relevant election advertisement.

17. However,  at the time of the 2011 District Council election, there was another statutory requirement under the Electoral Affairs Commission (Electoral Procedures) (District Councils) Regulation Cap 541F which provides,

“(9A) Before displaying, distributing or otherwise using an election advertisement which is of a kind referred to in subsection (1) or (2) of section 27 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554), the candidate must deposit with the Returning Officer a copy of the consent in writing referred to in that subsection.”

18. That regulation has been repealed in 2012. Though a breach of that regulation constituted an offence under Cap 541F, it would not be an illegal conduct under the ECICO.  As such, this court has no power to grant any relief in respect of the same.

19. In respect of the format of the written consent, the Electoral Affairs Commission [“EAC”] had prepared a specimen form for the use of the candidates.  However, there was no statutory prescribed form.  The use of a different format cannot be regarded as illegal conduct.  For the purpose of s27(1), it would be sufficient if it is a written consent to include one’s name, logo or pictorial representation in the advertisement.

20. In these proceedings, with regard to the issue of written consent, this court is only concerned with non-compliance with s27 of the ECICO.

21. According to the investigations by the ICAC, there were altogether 58 claimed supporters in the Applicant’s election advertisements. The state of written consents provided by these supporters was summarized at para 13 of the Affirmation of Woo Yuet Wah, an investigator of the ICAC of 11 Dec 2011,

“13. According to the ICAC’s investigations, amongst the 58 claimed supporters:

(a) 5 supporters consented in writing to the inclusion of their names on or before 17 October 2011. They were:

  (i)  “莫啟超”, purportedly on behalf of “煙廠街街市互助委員會” (i.e. page 1 of exhibit LWKE-6), who made the consent in writing on 21 September 2011 (whereas the chop of that committee was not affixed on the written consent);

  (ii)  “鄭錦鐘”, on behalf of ”九龍西潮人聯會有限公司” (i.e. page 2 of that exhibit), who made the consent in writing on 12 October 2011;

  (iii)  “梁照誠”, on behalf of “油尖旺社團聯會” (i.e. page 3 of that exhibit), who made the consent in writing on 12 October 2011;

  (iv)  “譚顯耀”, on behalf of “旺角區居民協會” (i.e. page 5 of that exhibit), who made the consent in writing on 12 October 2011; and

  (v)  “趙鳳儀”, on behalf of “油尖旺婦女會” (i.e. page 6 of that exhibit) who made the consent in writing on 12 October 2011;

(b)  I supporter consented in writing after 17 October 2011 but before the Election.  He was:

  (i)  “梁銳” on behalf of “油麻地居民權益關注會” (i.e. page 4 of exhibit LWKE-6), who made the consent in writing on 19 October 2011;

(c)  4 supporters told ICAC investigators that they had given verbal consents of support to the Applicant on an unrecorded date prior on 17 October 2011.  They were :

  (i)  米雪小姐;

  (ii)  高志森導演;

  (iii)  “鄺衛忠主席” on behalf of “翠園二期業主立案法團”; and

  (iv)  “黃永祥主席” on behalf of “恩佳大廈業主立案法團”.

(d)  the other 48 claimed supporters told ICAC investigators that they had given their verbal consents of support to the Applicant but they were unable to recall whether such verbal consents were given prior to or after 17 October 2011.”

22. There is an issue with regard to the date of publication of the election advertisement.  The ICAC adopted the date of printing of the advertisement as the date of publication.  At the same time, acting quite fairly, the investigator accepted that it is possible to argue that the date of publication should be the later date of mailing of the advertisement. Though the definition for “publish” includes “print” in Section 2 of the ECICO, such definition is applicable “unless the context otherwise requires”.  In the context of s27(1), I do not see any reason why it should be regarded as illegal conduct if a candidate obtains the written consent between the printing and the actual dispatch or dissemination of the election advertisement.  Nor do I see any reason why the legislature should deem the printing of an advertisement per se to be an illegal conduct even if a candidate decides subsequently not to send it as he realizes he could not obtain all the requisite written consent.  I will adopt the date of dispatch or dissemination as the date of publication.  On the evidence in the present case, the date of publication was 22 October 2011.

23. Thus, out of a total of 58 supporters named in the Applicant’s election advertisement, there are 52 supporters from whom the Applicant did not obtain written consent before publication.

24. The Applicant’s case is that in respect of these 52 supporters, he or his associates did obtain their oral consent.  He explained in his first affirmation that he and his associates canvassed support from these people and organizations in mid October and time was tight.  Written consents could not be obtained from some of them because they were not readily available (as some supporters were not in Hong Kong).  In respect of the chairpersons of some incorporated owners, the Applicant said since they had given consent for the display of his election advertisement, they deemed it not necessary to fill in another set of written consent.  Whilst the Applicant accepts that this would not assist him in terms of compliance with s27, he invites this court to accept that all the claims of support were genuine. 

25. He produced written declarations by these 52 supporters to evidence their support and oral consent.  The declarations are all in the same form. I can just quote from one, the one by Dr Chow dated 13 April 2012,

 

“

嚴正聲明

本人確認於2011年十月半旬，曾透過會面 / 電話聯絡，清楚表明願意支持梁偉權先生（香港身份証號碼：E883348(8)）參加2011年11月6日的區議會選舉（油尖旺京士柏選區），並同意梁先生在他選舉宣傳品內的支持者名單上加入本人的姓名 ，專業職銜及/或大廈業主立案法團主席/副主席稱號，此証 。”

26. It should however be noted that these declarations were signed between February and April 2012 after Lam had issued his challenge by way of election petition.  And the declarations were not made on oath.

27. The Applicant also deposed to the limited resources he had in respect of his election campaign and the limited time he had for his electioneering activities due to his full time employment.  He adverted to a diagnosis in August 2011 regarding his eye problem. He asked the court to understand his personal situation and he contended that his non-compliance with s27 was due to his inadvertence.

28. The Applicant had two election assistants.  One election assistant, Wong Kwan Tat [“Wong”], made an affirmation in support of the present application.  One of his duties was to collect the consent of support forms from the organizations and incorporated owners whom he had contacted. He said the Applicant contacted the other supporters by himself.  Mr Wong accepted responsibility in respect of failure to collect some written consents.  He said though the Applicant had reminded him about that, he had inadvertently forgotten about the same due to the heavy workload in other electioneering activities.  He also deposed to the fact that these people did support the Applicant and he collected the written declarations now produced by the Applicant as “LWKE-8”.

29. Having considered the evidence and the submissions advanced before me, I am not satisfied that this is a proper case for granting relief in respect of the non-compliance with s27.

30. The crucial issue is not whether the Applicant actually had the support of these 52 supporters, but whether he had their written consent for the inclusion of their names as his supporters in his election advertisements prior to their dispatch.  The evidence adduced by the Applicant did not satisfy me that he had obtained the oral support from all these 52 supporters prior to 22 October. Though he claimed in his own affirmation that he had obtained their oral support, he was vague as to the details on when and how did he obtain support from each of them.  On his own evidence, part of the canvassing for such support was done by Wong. Likewise, the evidence of Wong was vague and general.  Neither the Applicant nor Wong referred to each supporter individually in terms of how such supporter gave them oral consent. 

31. The Applicant relied on the declarations signed by these supporters.  However, these supporters only declared that they gave their verbal consents through interviews or telephones in the latter part of October 2011.  That may well be after 22 October 2011.  The investigation of the ICAC shows that out of these 52 supporters, 48 could not remember whether they gave verbal consents before or after 17 October.

32. Further, the use of a standard format for these declarations demonstrates that the makers of the declarations did not exercise too much effort in recalling what had happened.  I have difficulty in attaching much weight on these declarations.

33. Mr Cheung submitted that due to the lapse of time, it is difficult for people to recall the exact date when verbal consent was given.  Even so, the court expects more specific evidence from the Applicant when he comes to seek relief and ask the court to accept that verbal consent had been given by each of these 52 supporters.  He should recount as much details as he and his assistants could recall as to the occasion when consent was obtained from each supporter and what was said with regard to the use of their names in election advertisements.  A general support is not enough. Section 27(1) referred specifically to consent to the inclusion of the name in election advertisement.  The person who approached each supporter should be identified.

34. What is singularly missing in the evidence, apart from the specific evidence as to the procurement of verbal consent from each supporter, is the evidence as to when and on what basis did the Applicant decide to put these names onto the list of supporters.  It must be a decision by the Applicant because according to the evidence of Wong, there were some other supporters whose written consents he had procured but their names did not appear on the list.  The evidence also did not explain what steps were taken by the Applicant to verify that written consents had been obtained from all the named supporters before the mailing of his election advertisements.  If he had delegated that task to somebody else, to whom did he delegate that task?  In respect of supporters contacted by him, what steps had the Applicant taken to procure the written consents?  If none, to whom did he delegate the task of following-up and why had that person failed to follow-up?  The only assistant who had given evidence in support of this application was Wong.  However, it is clear from the list of duties set out at para 6 of his affirmation that his duties did not include the following-up with written consents regarding supporters contacted by the Applicant, see para 6(8).

35. Moreover, I do not regard the omission as inadvertent. This is not a case where the Applicant or Wong was ignorant about the requirement to obtain written consents.  They were aware of the legal requirement and they had therefore obtained 6 written consents by using the specimen form provided by the EAC.  I do not accept that they had forgotten about such requirement.  The last written consent was dated 19 October.  Given the unsatisfactory nature of the Applicant’s evidence as mentioned above, I cannot accept Mr Cheung’s submission that the Applicant had forgotten about the legal requirement although initially he had reminded his assistants and staff about it. In his first affirmation at para 11, the Applicant said he and his staff started to contact prospective supporters around middle of October.  Given that he intended to utilize the free postage for the mailing of his election advertisements (with the deadlines on 20 and 24 Oct), the time was tight if one takes account of the time needed for the preparation and printing of the advertisement.  On his own evidence, the canvassing of support and the procurement of written consents could only be done within a matter of days.

36. Further, it is not a case where only a small number of consent forms were omitted.  Out of a total of 58 supporters named in his election advertisements, he failed to procure written consent from 52 of them.  In these circumstances, the Applicant had to discharge a heavy onus in satisfying the court that his non-compliance was mere inadvertence.  I do not accept that reliance can be placed upon the consents for the display of election advertisement.  The nature of the consents was different and the Applicant did not say in his evidence that he failed to appreciate the difference. 

37. In Re Tsang Wai Ming HCMP 3463 of 2003, 15 April 2004, I have considered the meaning of inadvertence in the context of s40 of the ECICO which is similar to the context of s31.  After citing some authorities, I said at para 17,

“It is also necessary to draw a distinction between cases where an applicant simply turned a blind eye or act[ed] recklessly as to the legal requirement and a case where an applicant has tried to understand what the legal requirement is but failed to get it correctly. … the court will not grant relief to an applicant if he chose to do nothing to learn about what were his legal obligations under the law with regard to the steps that he has to take in relation to the election.”

38. In Re Yiu Chun Fat HCMP 1482 of 2007, 5 November 2007, I applied this principle in rejecting an application for relief.  The applicant in that case was aware of his legal obligations but said he failed to comply with it due to financial pressure and pre-occupation with other matters.  I said at paras 9 to 12,

“9. In my view, it is more likely to be a case where the Applicant simply put this obligation of filing the election return as an item of very low priority. He said he forgot about it. Sometimes one can put it that way in regard to matters of low priority, but the more accurate way of describing this sort of situation is that the Applicant simply did not care about it enough.

10. Although the law did give the court the power to grant relief in cases of inadvertence absent of bad faith, I think it is important that each candidate should bear in mind and take seriously their obligation to file an election return. I think it is high time that a strong message should be passed to every candidate that one cannot expect this court to grant relief simply because they say, “Well, I failed to do it because of my forgetfulness.” If relief is granted too readily, I am afraid there is a tendency that people do not take this requirement of the law seriously enough. Regrettably, this is exactly what has happened in this particular case.

11. In Tsang Wai-ming HCMP3463 of 2003, at paragraph 17, I stressed that one must draw a distinction between cases where applicant turns a blind eye, or acts recklessly as to the legal requirement, and a case where an applicant has tried to understand what the legal requirement is but failed to get it correctly.

12.  In my judgment, if an applicant did not place enough significance on the obligation to file an election return, the court would require some good reason before it should exercise its discretion to grant relief.  Section 40(2) gives the court a discretion. I think it is important that the discretion should be exercised in a manner which is consistent with the integrity of our election legislation.  Those participate in election should be aware that these are serious matters and therefore they should take reasonable steps to comply with their legal obligation at the time when they put themselves forward as a candidate for any election.”

39. In Re Liu Sing Lee [2003] 3 HKLRD 162, Chu J (as she then was) adopted what had been said in earlier authorities with regard to the meaning of inadvertence,

“inadvertence means negligence or carelessness where the circumstances show an absence of bad faith.”

On the facts of that case, the court held that an erroneous conscious decision was not an act of negligence or carelessness and therefore the applicant could not rely on inadvertence even though it accepted that there was no bad faith on the part of the applicant.

40. Therefore, one must not equate the lack of bad faith with inadvertence.  Quite plainly, the lack of bad faith and inadvertence are two separate elements in the context of s31(2).

41. In essence, the Applicant said he and his assistant were so heavily engaged with his other electioneering activities that he had failed to pay proper attention to his obligation to procure the written consents from these 52 supporters.  If that were so, he should not put down their names in his election advertisements.  At least he should not mail such advertisements until he had got all the written consents.  He could not claim that he had time for his other electioneering activities and no time for compliance with the requirement under s27(1A).

42. Mr Cheung referred to the personal predicament of the Applicant due to his eye problem and there is medical evidence before me. But there is nothing to suggest that his eye problem had created difficulties in his other electioneering activities and I do not see any causal link between his medical condition and the non-compliance with s27(1).

43. There is no satisfactory evidence from the Applicant to explain why he chose to include all these names in the election advertisements when he had not obtained the requisite written consent.  If he was aware of the requirement under s27(1), he should only include these names in his mailed advertisements when he had obtained all the written consent.  He did not even say in his evidence that he believed he had obtained all the written consents.  He only said he had forgotten about that requirement. I have already explained why, given the time frame of the matter and the scale of non-compliance, I do not accept this explanation.  I cannot accept that the omission was due to inadvertence.  Nor can I see how the Applicant can say that the omission was due to accidental miscalculation or any reasonable cause.

44. I am also not satisfied that it would be just to grant relief. It may be asked why should one be so rigid when these people were willing to sign the declarations.  I have already explained my misgivings about the weight that can be attached to these declarations.  Moreover, granting the Applicant relief in the present circumstances would not be fair to other candidates who comply with s27(1) and desist from naming supporters from whom they did not have time to get their written consents. In an election as close as this one (where Lam only lost by 2 votes), it cannot be said that the names of supporters appearing on the election advertisements had no bearing whatsoever on the outcome.

45. I refuse to grant relief in respect of the non-compliance with s27(1).

Omissions in relation to declaration of election advertisements

46. In the course of vetting the election return lodged by the Applicant, the Registration and Electoral Officer detected some discrepancies between the return and the quantities of election advertisements set out in the earlier declarations of election advertisements lodged on behalf of the applicant.

47. In his Second Affirmation, the Applicant explained such discrepancies.  In essence, he maintained that the expense pertaining to election advertisements set out in his election return was correct and the discrepancies were due to mistakes in the earlier declarations.  

48. Thus, it is not necessary for the Applicant to correct his election return in this respect and no case arises for grant of relief under the ECICO.

49. The statutory requirement with regard to election advertisement under s34 of the ECICO does not extend to the accuracies of statement in declarations of election advertisements.  As such, the power to grant relief under s35 is not engaged in the present circumstances.

Omissions in relation to election account

50. In respect of the other items for which the Registration and Electoral Officer raised queries, they were in the nature of seeking supporting documents rather than challenging the figures in the election return.

51. The Applicant had actually provided supporting documents (identified by voucher numbers) when he submitted the election return. There were however some items which, by their inherent nature, the Applicant could not produce separate invoice or receipt.  These included expenses like the salaries of the staff of the Applicant’s District Council Office who spent part of their time during the election period to assist in electioneering and the rent of the office.  The $200 in respect of fuel consumption on election day falls into the same category.

52. The other item was the fine imposed by the Food and Environmental Hygiene Department for the non-removal of election advertisement.  The nature of this item had clearly been shown in the supporting documents attached to the election return.

53. This is not a case of error or false statement being made in the election return.  Though s37(2)(b) of the ECICO does require election return to be accompanied by supporting documents, the failure in that regard does not invalidate the filing of such return.  Nor does the failure to supply adequate supporting documents render the figures in the return inaccurate or false.  

54. Whilst it may be argued that a failure to accompany the return with the requisite invoice and receipt in accordance with s37(2)(b) would constitute an offence under s38(1), and as such the court may have the power to grant relief under s40(5), I do not believe it is the intention of the legislature to require an applicant who has already produced some proper documentation to verify an item of expenses and given adequate explanation on the practical difficulties in strict compliance with s37(2)(b) to come to court to seek relief simply because the documents were not in the format of a separate invoice or receipt exclusively for that item.

55. In a case like the present one, the Registration and Electoral Officer might require some clarifications from the Applicant after studying his supporting documents.  However, such clarifications could be sought by way of making arrangement for an interview inviting the Applicant to give some explanations of his documentation.  If necessary, the officer may request such explanation to be backed up by a statutory declaration. Once a proper explanation has been given and accepted, that should be the end of the matter.  It would be wholly disproportionate and inefficient to require an application for relief to be made.

56. In the present circumstances, having considered the explanations given by the Applicant in his Second Affirmation, I see no reason why there should be any further concerns regarding the election return.  I will grant relief under s40(5) in respect of these items.

57. It is hoped that with the publication of this judgment, those responsible for vetting election returns could bear in mind the possibility of adopting the approach as suggested in para 55 above instead of simply informing a candidate of the possibility to make an application to court for relief as a matter of course. In line with the spirit of the Civil Justice Reform and the underlying objectives in Order 1A, the court will also bear this in mind in dealing with costs arising from an application for relief. 

Outcome

58. For these reasons, I will grant relief under s40(5) but not under s31 as indicated above.

59. I also make an order that the Applicant shall pay the costs of the Respondent, such costs to be taxed if not agreed.

Mr Lincoln Cheung, instructed by L & L Lawyers, for the Applicant.

Mr Lewis Law, SGC, Department of Justice, for the Respondent.