KWAN YUI HUEN v. SECRETARY FOR JUSTICE

HCMP 458/2022

[2023] HKCFI 1056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 458 OF 2022

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J U D G M E N T

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A.  Introduction

1.  This is the hearing of an originating summons taken out by the applicant, Mr Kwan, for relief under section 40(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“ECICO”), namely, to lodge his Return and Declaration of Election Expenses and Election Donations (“election return”) notwithstanding the expiry of the time for doing so. The Respondent (“SJ”) takes a neutral stance.

B.  Background

2.  Mr Kwan was and is a professor of sociology, a devoted Christian and an active volunteer who had been extensively involved in the management and operation of various organizations.

3.  Mr Kwan was a candidate for the 2021 Election Committee Subsector Ordinary Election for the Social Welfare Subsector (“Election”). He was aged 75 at the time of the Election. He had not appointed any election agent or assistant and had been handling all administrative work on his own.

4.  The Election was held on 19 September 2021. Mr Kwan was not elected. The result of the Election was gazetted on 20 September 2021.

5.  On 24 September 2021, a bilingual reminder letter was sent by the Chief Electoral Officer to all the candidates of the Election, including Mr Kwan, reminding them to lodge their election returns by 23 October 2021. Mr Kwan admitted receiving the same and had highlighted on the letter the date and address for lodging the election return lest he should forget.

6.  On 27 September 2021, Mr Kwan attended the Registration and Electoral Office (“REO”) to obtain refund of the election deposit. He enquired with the staff there as to whether there was any further document that he was required to hand in. He was told that there was no more.

7.  On 20 October 2021, Mr Kwan received an email from REO, reminding candidates the deadline for lodging their election returns, even if they had not incurred any election expenses.

8.  By email from one Ms Poon Hiu Wai (Electoral Officer) on 29 October 2021 (Friday), Mr Kwan was informed that he had not lodged his election return in time.

9.  Upon realizing his default, Mr Kwan immediately emailed Ms Poon to acknowledge his mistake.

10.  Very promptly, Mr Kwan filled in his election return and made the required declaration of truth on 31 October 2021 (Sunday) before a Justice of the Peace.

11.  On 1 November 2021 (Monday), Mr Kwan attended the High Court personally and submitted a handwritten letter to the Registry in an attempt to apply for relief. He was informed that he should take out an originating summons.

12.  The present originating summons was taken out on 21 April 2022.

13.  Mr Kwan effectively only puts forth two ground in support – his forgetfulness in failing to keep a good record of deadlines and his busy schedule of voluntary commitments. He produced a report on psychiatric assessment after being examined by a psychiatrist on 6 and 8 August 2022. Dr Lam Chi Leung opined that Mr Kwan had been suffering from adjustment disorder and intermittent cognitive impairment, which led to his deteriorating memory and forgetfulness. He diagnosed Mr Kwan as suffering from stressor-related adjustment disorder, chronic medical problems and evolving neurocognitive disorder, which might have disturbed his memory, cognitive function and even judgment.

14.  Mr Kwan seeks relief such that he be permitted to lodge the election return out of time, within 14 days of the order being made.

C.  Legal principles

15.  Pursuant to section 37 (1D) of the ECICO, a candidate running for the election to membership of the election committee is required to lodge his/her election return before the expiry of the period of 30 days after the date on which the election becomes settled.

16.  A candidate who has failed to lodge his/her election return within the prescribed period can apply to the Court of First Instance for relief under section 40 of the ECICO. 

17.  The applicable principles in evaluating such an application have been succinctly summarized by Coleman J in Yu Hon Kwan v Secretary for Justice [2021] HKCFI 3022 at §§10-11:-

“(1) A candidate at an election must lodge with the appropriate authority an election return, and must ensure that the election return is lodged within the relevant statutory period.

(2) A candidate who fails to lodge an election return as required can apply to the Court for an order allowing him to lodge an election return within such further period as the Court specifies.

(3) On such an application, the Court may in its discretion make the order sought, but only if it is satisfied that the inability or failure to lodge an election return as required by section 37 was attributable to: (a) the applicant’s illness or absence from Hong Kong; or (b) the death, illness, absence from Hong Kong or misconduct of an agent or employee of the applicant; or (c) inadvertence or an accidental miscalculation by the applicant or any other person; or (d) any reasonable cause, and was not due to the applicant’s bad faith.

…

(6) The word “inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith, identifying that inadvertence and lack of bad faith are two separate elements.

(7) Hence, the burden is on the applicant to show one of the preconditions for the grant of relief, and the absence of bad faith.

…

(9) Ignorance of the law is no defence, and it is incumbent upon a candidate to familiarise himself with the election rules when meeting the requirement to lodge an election return setting out the expenses incurred and donations received.

(10) Indeed, participants in elections should be aware that elections and the attendant legal obligations are serious matters, such that they should take reasonable steps to fulfil their legal obligations as candidates.

(11) So, there is a distinction between (a) a case where an applicant simply turned a blind eye or acted recklessly as to the legal requirements, and (b) a case where an applicant has tried to understand what the legal requirement was, but failed to meet it correctly.

(12) The Court’s power to grant relief is discretionary, and it is important that such discretion be exercised in a manner consistent with the integrity of the election legislation.” (emphasis added)

18.  Specifically on the interpretation of “inadvertence”, Coleman J in David Ho v Secretary for Justice [2022] HKCFI 566 ruled at §70 that an act or omission may be “so unreasonably careless or negligent” as not to fall within “inadvertence”, even if the line is not crossed into bad faith.

19.  The burden is on the applicant to satisfy the Court that it is appropriate to grant relief.

D.  Inadvertence

20.  Forgetfulness was something Mr Kwan acknowledged as happening throughout his daily life. The expert evidence did not go so far as to suggest that there was anything abnormal about it for this 75-year old person. It was not a situation where Mr Kwan could not have taken necessary steps or precautions to combat his forgetfulness, such as setting appropriate reminders for himself, especially with a duty to lodge an election return, which was an integral part of the election system, failure of which could lead to criminal sanctions.

21.  I have considered his psychiatric assessment report. Without disrespect, not much weight can be put on the report as it was made after the event, where the records did not show Mr Kwan as having a medical history on the psychiatric aspect. His diagnosis was mild neurocognitive disorder. I have reservation to the doctor’s description of him as having “mental health” problem.

22.  Mr Kwan knew the legal requirement for lodging an election return. His highlighting of the deadline and lodging address in the reminder letter dated 24 September 2021 showed that he had the intention to comply.

23.  Mr Kwan has produced his handwritten schedule showing his numerous appointments from August to October 2021. I am satisfied that he did have a habit of noting down appointments/events in his diary. It was due to forgetfulness and his failure to appreciate that a nil election return was required even though he had no election expenses that he had not marked the deadline for lodging the election return in his schedule.

24.  His emphasis that he had no election agent in the process was not to put the blame on the staff of REO for misinforming him when he sought refund of the election deposit, but to show that he received no reminder from an assistant.

25.  Mr Kwan makes 2 further arguments to support his case on inadvertence:

(1)  Around that period, his church fell into an unprecedented crisis. His attention was predominantly on resolving the church’s internal disputes, therefore he overlooked the deadline.

(2)  The election was the very first one held after the recent reform in the selection method of the Chief Executive. The electoral landscape in Hong Kong has been drastically changed. The Election was not as competitive or politically diverse as it used to be. Given his long established reputation in the field of social welfare, Mr Kwan decided not to spend on hiring election assistant or to put up advertisements. This also contributed to his failure to recall the need for lodging the election return.

26.  I am unable to discern the causation between the matters in the preceding paragraph and the preparation of what was, effectively, a “nil” election return.

27.  Having taken all circumstances into account, I am satisfied from §§22 and 23 that his failure to lodge the election return did arise out of inadvertence.

E.  Bad faith

28.  Mr Kwan had not incurred any expenses for the Election and his election return was a “nil return”. There was simply no incentive for him to deliberately flout the law. I find no bad faith on his part.

29.  There is, how, one unsatisfactory aspect in Mr Kwan’s evidence – the lapse of about 6 months from the deadline for filing the election return before he filed the originating summons. He explained in his affirmation filed after the hearing, that he thought that the lodging of the letter on 1 November 2021 was an application to the High Court for relief to file the election return, until he was first told by one Officer Lee of ICAC at a meeting on 12 April 2022 that that letter did not constitute a proper application. Almost immediately in the afternoon of that date, Mr Kwan sought legal advice and filed the originating summons on 22 April 2022 supported by an affirmation.

30.  This explanation is unacceptable because, as set out in §11 above, Mr Kwan had already been informed by the High Court Registry that he should take out an originating summons at the time he lodged the letter on 1 November 2021. He did not take action there and then.

31.  Be that as it may, the circumstances of this case did not show bad faith on this 75-year old applicant. He responded quickly to the ICAC office’s remark. An indemnity costs order is more appropriate to punish him for his delay than depriving him of relief.

F.  Conclusion and costs

32.  Based on the above analyses, I exercise my discretion to grant the relief sought, such that Mr Kwan can lodge his election return within 14 days of the handing down of this judgment.

33.  Mr Kwan conceded costs, which shall be to the SJ. I summarily assess such costs at HK$27,218.

34.  I thank Mr Law, Mr Ho and Mr Hor for their assistance.