LAU CHAK FUNG v. SECRETARY FOR JUSTICE

HCMP 1625/2020

[2022] HKCFI 1108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1625 OF 2020

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D E C I S I O N

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A. Introduction

1.  In July 2020, the Applicant ran in the so-called primary election (“Primary”) held by some of those who are colloquially called the ‘pan-democrats’ in anticipation of the ultimately postponed 2020 Legislative Council General Election (“2020 Election”). The Applicant did not win in the Primary and was never formally nominated for candidacy in the 2020 Election.

2.  However, for some purposes of the election laws, the definition of “candidate” includes not only a person who stands officially nominated as a candidate, but also a person who has publicly declared an intention to stand as such before the close of the nomination period. By virtue of the part of the election laws where the expanded definition of “candidate” is applied, the Applicant was a “candidate” and therefore had to comply with the legal duties imposed on such a candidate.

3.  Relevant for the present purposes are the following two legal duties:

(1)  lodging a ‘Return and Declaration of Election Expenses and Election Donations’ (“Election Return”) to declare his election expenses and donations under section 37(1) of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”); and

(2)  either uploading the electronic copies of his election advertisements to two designated online platforms or submitting the hard copies of his election advertisements to the authority for the purpose of enabling public inspection under sections 105(1) to 105(3) of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation Cap 541D (“EACR”).

4.  If the candidate chooses the hard-copy option for the election advertisement requirement, the submission will also have to be accompanied with a completed form known as the ‘Information Sheet’ setting out the type, size, quantity, publication date, etc of the advertisements.

5.  The Applicant has duly lodged an Election Return. However, later, it was discovered that he had made an error in his Election Return by omitting a sum which should be declared as an election expense. But the Applicant did not provide copies of his election advertisements within the specified time, either by electronic means or by hard-copy.

6.  By originating summons (“OS”) issued on 30 September 2020 and subsequently amended on 22 October 2021, the Applicant seeks relief: (1) under section 106 of the EACR arising from his failure to provide copies of his election advertisements for public inspection; and (2) under section 40(3) of ECICO arising from the error made in his Election Return.

7.  The Applicant has filed written submissions prepared by Mr Ernest Ng of Counsel. The SJ has taken a neutral stance but, in the written submissions prepared by Ms Minnie Wong, Senior Government Counsel, the SJ has submitted that she should have the costs of this application.

8.  Though originally fixed for oral hearing, it was agreed that the application could be properly determined on paper. Having now considered all the materials before the Court, this is my Decision.

B.  The Background Facts

9.  The Applicant has filed two affirmations dated 30 September 2020 and 22 October 2021 in support of his application. The SJ does not challenge the facts as stated in the Applicant’s affirmations, but correctly stresses that the burden remains on the Applicant to satisfy the Court that he has met the requirements for the Court to grant relief under section 40 of the ECICO and section 106 of the ECAR.

10.  The affirmations contain very little information about the Applicant’s background. I am only told that he holds a Bachelor’s Degree in Sociology from the Hong Kong Shue Yan University and that he was a ‘first-timer’, in the sense that he had never participated in a Legislative Council General Election before the 2020 term. He says he was not as conversant with the election requirements as the more seasoned candidates, and he also did not obtain any professional or legal advice to assist him.

11.  The Applicant says he decided on 1 July 2020 to run in the Primary, and began taking steps to prepare himself to stand in the Primary. He published online posts on his Facebook and Instagram accounts as well as distributing physical advertisements such as handbills and pennants on the streets. Copies of these advertisements are exhibited to his first affirmation.

12.  The Applicant did not submit copies of his election advertisements within the specified time. It was only around mid-August 2020 when he became aware that he was subject to such duty even though he was not formally nominated. This was when a friend of his, a Mr Chui Chi Kin who was a District Councillor, asked if the Applicant had submitted the Information Sheet.

13.  In or around mid-August 2020, he visited the Kowloon City District Office of the Home Affairs Department (“HAD”) in person and submitted the Information Sheet. On 28 August 2020, the HAD directed him to submit it to the Registration and Electoral Office (“REO”), with which he complied. He said, however, later a staff member of the REO told him that HAD was the proper recipient. In any event, HAD agreed to arrange for the Information Sheet to be transferred back to REO. On 1 September 2020, the Applicant also submitted a ‘Corrected Information and Particulars Sheet’ to the REO to make some minor corrections.

14.  In the Information Sheet (as corrected), I note that the earliest Facebook post was said to have been published on 17 March 2020, the first Instagram Post was said to have been produced on 28 May 2020, and some physical advertisements were said to have been produced and published as early as on 8 June 2020. This seems to be inconsistent with the suggestion that he only decided to run in the Primary on or about 1 July 2020.

15.  I am not assisted by either the Applicant nor the SJ as to the original deadline by which the Applicant should have submitted copies of his election advertisements. Sections 105(2) and 105(3) of the EACR require the uploading of electronic copies or submission of hard copies to be made “within the time specified by the Commission”, but I am not informed about the specified time. But §2 of the Information Sheet expressly requires the candidate to declare that he understands that the election advertisements and the relevant information must be submitted for public inspection within one working day after publication. The information could also be found in the official website for the 2020 Election maintained by the REO: see the ‘Notes on Completion of Information Sheet in relation to Election Advertisements’, ‘Notes on Completion of Application for Creating an Account of the Central Platform and Undertaking in respect of the Terms and Conditions in Using the Central Platform for Candidates’ and ‘Notes on Completion of Notification of the Electronic Address of the Candidates’ Platform’. The Central Platform and the Candidates’ Platform are the two open online platforms onto which electronic copies of the advertisements could be uploaded.

16.  According to the Information Sheet (as corrected), most of the advertisements were first published in July 2020 so the delay was about one to two months. For the items I mentioned where the date of production or publication pre-dated 1 July 2020, the delay ranges from two months to half a year.

17.  After submitting the Information Sheet (and its correction) on 28 August 2020 and 1 September 2020, the Applicant also lodged his Election Return on 16 September 2020.

18.  Under the Emergency (Date of General Election) (Seventh Term of Legislative Council) Regulation Cap 241L – which was specifically enacted to handle the unprecedented postponement of the 2020 Election – a new deadline was given for the submission of Election Return. A period of 30 days was given running from 31 August 2020 and therefore expiring on 30 September 2020. As such, the Applicant lodged his Election Return in time.

19.  After he filed the OS on 30 September 2020, which was at the time limited to seeking relief as regards the election advertisements and which was served on the SJ, he received a letter dated 29 October 2020 from the SJ informing him that he had failed to declare an expense in the amount of HK$33,114.66.

20.  In fact, that sum was already shown in the Election Return, but as a donation rather than an expense. The sum was declared as a donation of more than HK$1,000 in the relevant section, and described as “service”. A receipt is also attached to the return, showing that the sum representing service was provided by the ‘Power for Democracy’. In SJ’s letter dated 29 October 2020, the Applicant was reminded that spent election donations, whether in cash or in kind, should also be declared as election expenses.

21.  The Applicant thus applied to amend the OS accordingly, for which leave was granted on 22 October 2021.

C.  Whether to Grant Relief

22.  As stated, and by the amended OS, the Applicant seeks relief arising from the (1) omission to declare the sum of HK$33,114.66 as an expense as required by section 37(1)(a) of the ECICO and (2) the failure to submit copies of election advertisements within one working day from their publication as required by sections 105(1) to 105(3) of the ECAR.

C.1  The Omission in the Election Return under ECICO

23.  The definition of “candidate” is found in section 2 of the ECICO and is applied across the entire Ordinance. As said, it includes persons who are not officially nominated for candidacy.

24.  The Court has power to grant leave for correcting errors or false statements in an Election Return under section 40(3) and the conditions for the Court to exercise such power are provided by section 40(4). The Court has to be satisfied that the false statement or error in the Election Return: (1) was attributable to (a) the misconduct of an agent or employee of the applicant, or (b) the inadvertence or an accidental miscalculation by the applicant or other person, or (c) any reasonable cause; and (2) was not attributable to the applicant’s bad faith.

25.  I also specifically remind myself that the Court’s discretion should be exercised in a manner which is consistent with the integrity of the election legislation.

26.  I have recently set out the relevant law on the meaning of “inadvertence” and “bad faith” in David Ho v The Secretary for Justice [2022] HKCFI 566 at §§59-71 in the context of section 40(2) on the requirements to grant relief for failure to lodge an Election Return. The same principles apply here, but I shall not repeat them.

27.  The sum of HK$33,114.66 was already declared as a donation, with its particulars provided and with a receipt exhibited as proof. The Applicant cannot be accused of deliberately hiding the expense. It is perhaps understandable that a lay person might not have realized that a donation in the nature of “services” must necessarily have been “spent” and has to be declared as an expense. There is also little chance that the REO receiving the Election Return would be misled into under-estimating the Applicant’s election expenses. In fact, the SJ’s letter dated 29 October 2020 swiftly pointed out to the Applicant that that donation item should also be declared as an expense.

28.  I am satisfied that the omission was attributable to the inadvertence of the Applicant and was committed without bad faith. I would allow the relevant relief sought in this regard in the amended OS.

C.2  Failure to submit copies of advertisements under ECAR

29.  ECAR does not apply a uniform definition of “candidate” across the entire Regulation, unlike the ECICO. The narrower definition of “candidate” – which only covers those validly nominated to stand in the election – can perhaps be regarded as the norm. The expanded definition – which also covers those who have publicly announced their intention to stand in the election, albeit not eventually nominated – is the exception. As provided by section 2(2) of the ECAR, the expanded definition only applies to section 25 (which is irrelevant for present purposes) and Part 7 of the EACR, whilst the narrower definition runs in the rest of the EACR. Part 7 (which includes section 105) concerns election advertisements, which has included the Applicant.

30.  The requirements for the Court to grant relief for failing to submit election advertisements under section 106(1) of the EACR are provided by section 106(2), namely that the Court may grant relief if it is satisfied that: (1) the non-compliance was due to inadvertence, an accidental miscalculation or any other reasonable cause and was not due to bad faith; (2) if the Court requires notice of application to be given in Hong Kong, the notice has been given; and (3) it is just that the applicant should be excepted (meaning not subjected to one more of the penalties and disqualification).

31.  The first requirement is identical to the requirement for granting relief for correcting errors in an Election Return under section 40 of the ECICO, except for the limb of misconduct on the part of the applicant or his employees. The second requirement is irrelevant to the present case. The third requirement seems to call on the Court to exercise its overall discretion and to consider if it is just to grant relief, weighing everything in the balance. I consider that must be what the Court has to do even in granting this type of relief in general, even if such a requirement were not expressly stated.

32.  Mr Ng submits that the omission was the result of inadvertence on the Applicant’s part. The Applicant admits that the failure to comply with section 105 of the ECAR was an oversight as to his duties. He says that he was operating under the wrong impression that only those who had passed the Primary would have to maintain an open platform for the purpose of submitting electronic copies of election advertisements. He was not aware of that there was also a hard-copy option alongside the electronic option. The Court’s attention was drawn to that to the facts that he was a first-timer candidate in the 2020 Election and he did not have the benefit of any professional advice.

33.  As I have repeated several times in applications of this sort, ignorance of the law is not a defence. It is incumbent upon a candidate to familiarize himself with the election rules. Participants in elections should be aware that the attendant legal obligations are serious matters and they should take reasonable steps to fulfil their legal obligations as candidates.

34.  In the affirmations, the Applicant did not disclose any steps he had taken to familiarize himself with the requirements under the relevant election laws. It is perhaps not unreasonable to infer that he did not taken any such steps since he was apparently under the impression that a candidate in the Primary is not candidate in the Election and is thus not caught by the election laws, until he was told otherwise by Mr Chui.

35.  But his ignorance of the law does not lie, as is more usual in this type of application, in his misunderstanding about the legal duties imposed on a candidate. His ignorance lies in that he did not know that he was a “candidate” at all for the purpose of section 105 of the ECAR.

36.  I have considered whether ignorance of this type could or should attract more leniency when assessing the Applicant’s apparent failure in familiarizing himself with the election rules, and the various meanings of candidate in particular. After careful deliberation, I consider that in the particular circumstances of his case it should.

37.  First, as noted already, the EACR does not apply a uniform definition of candidate and the expanded definition is rather the exception than the norm. In this light, it is perhaps more understandable that a lay person without professional advice would mistakenly believe that the narrower definition of “candidate” applies across the board, and that he would only have to sort out the many legal duties imposed upon a candidate if and when he does become validly nominated.

38.  I do appreciate that the varying definition for “candidate” for different purposes is, on its own, insufficient to exonerate the Applicant. After all, the legislature specifically expands the definition for the purpose of section 25 and Part 7 for a reason. The election behaviour of those who do not end up being validly nominated may still have an impact on the overall fairness of the election. Releasing too easily ‘unofficial’ candidates from the requirements relating to election advertisements – or from the consequences of failing to meet those requirements – risks defeating the purpose of Part 7. But the variation in definition does, I think, make the oversight more excusable.

39.  Second, and also related to the first point, the Applicant was unassisted by any professional advice which would have dispelled his wrong but perhaps understandable layman’s perspective about the meaning of “candidate”. It is of note that only validly nominated candidates would be entitled to claim financial assistance from the Government for their election expenses in the Legislative Council General Election (subject to their obtaining at least 5% of the valid votes): see section 3(1) and Part 6A of the Legislative Council Ordinance Cap 542. The Applicant would not be able to claim any money spent on engaging professional assistance unless he managed to pass the Primary. This explains why one may not want to engage professional help at the so-called Primary stage.

40.  Third, whilst the law does expect the Applicant to familiarize himself with the election rules even though he was not validly nominated, it is not unfair to say that more caution would be expected from those who stand validly nominated than those whose candidacies are contingent upon, for example, winning some form of run-off process or election held within a party or political grouping.

41.  Fourth, the Applicant was young at the time and he was a first-timer with no experience in participating in the Legislative Council General Election. (Though I place no particular weight on the point, I also note that he has submitted some medical slips to substantiate that he was under the influence of some mental conditions at the time.)

42.  Finally, I also note but have given only minimal weight to the point since the duty to familiarise oneself with the election laws must ultimately fall on the Applicant, I am not informed whether the REO or the Commission has taken any effort to make contact with the potential official candidates like the Applicant and educate them about their duties which attach to them even before any formal nomination.

43.  Overall, I am satisfied that the non-compliance was a result of inadvertence and was committed without bad faith. I am also satisfied that the other requirements stipulated by section 106(2) are met.

D.  Disposition

44.  The broad relief sought in Applicant’s amended OS is granted.

45.  However, I note that, for the relief addressing his failure to submit copies of election advertisements, he seeks (1) to be exempted from the submission requirements under sections 105(1) to 105(3) of the EACR pursuant to the Court’s power granted by section 106(1), and also seeks (2) leave to correct the Information Sheet (in the manner as stated in the ‘Corrected Information and Particulars Sheet’ he submitted to REO before). Though it may not matter, I think the second relief is no longer needed after the Applicant has already been exempted from the submission requirements under sections 105(1) to (3) of the ECAR.

E.  Costs

46.  Mr Ng invites the Court to make no order as to costs on the bases that: (1) the Applicant has candidly accepted his responsibility; (2) the parties have jointly applied for disposal of the case on paper; (3) there has been no inordinate delay on the part of the Applicant; and (4) the SJ has adopted a neutral stance throughout.

47.  Ms Wong submits that costs should be awarded to the SJ. Public funding was involved for the SJ to prepare for this case, which could have been avoid had the Applicant acted with due care and prudence in handling disclosure of his election advertisements and his Election Return. The Applicant is seeking the Court’s indulgence in this application.

48.  I agree with Ms Wong. It has been well-established in this type of cases that when an applicant has to seek the Court’s indulgence and the SJ has properly adopted a neutral stance whilst drawing to the Court’s attention matters properly to be taken into the balance, the appropriate order is that the Applicant should bear the SJ’s costs. That the matter has been dealt with on paper does not change that analysis; costs have still been incurred. That the Applicant has acted candidly, which I accept, is mainly relevant to the exercise of the discretion to grant the relief, rather than to the costs incurred in assisting with the consideration of whether to grant that relief.

49.  Ms Wong seeks those costs to be summarily assessed at HK$44,659, by reference to a statement of costs provided. Having considered that statement, and applying the usual approach to summary assessment, I make the assessment at HK$40,000.