RE SHUN TAK FRATERNAL ASSOCIATION

HCMP1225/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1225 OF 2005

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DECISION

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1. The applicant applied ex parte by way of originating summons under section 31 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 for relief from the penalties imposed for the illegal conduct of incurring election expenses contrary to section 23(1) of that Ordinance.  I allowed the application.  I now give reasons.

2. The applicant is a charitable organisation.  On 27 May 2005 it placed an advertisement in the newspaper Ta Kung Pao in support of Mr Donald Tsang who was then running for the post of Chief Executive, to which he has since been appointed.  The applicant incurred expenses in that it paid a fee of $3,500 to the newspaper for the advertisement.  On 28 May 2005, a legislative councillor, Mr Leung Kwok Hung lodged a complaint with the ICAC in relation to the advertisement.  On 30 May 2005 the applicant wrote to the Electoral Affairs Commission and to Mr Tsang’s Election Office apologising for its inadvertent breach of the law.

3. The Chairman of the applicant, Mr Ng, affirms that the applicant is neither a candidate not a candidate’s election agent.  The advertisement was taken out without the knowledge or consent of the candidate, Mr Tsang.  He says that the applicant contravened the provisions of section 23 out of ignorance of the law.  It took out the advertisement solely to express its support and blessings for Mr Tsang’s bid to become the next Chief Executive and for no other purposes.  There was no deliberate intent or mala fides on the part of the applicant to defy the provisions of section 23.

4. Section 31(2) provides:

“On the hearing of an application under subsection (1), the Court may make an order relieving the applicant from penalties and disqualifications that are imposed by, or could be imposed under, an electoral law for any act or omission of the applicant that, but for this section, would be illegal conduct at an election, but only if the Court―
	(a)	is satisfied that―
		(i)	the act or omission was due to inadvertence, an accidental miscalculation or any reasonable cause and was not due to bad faith; and
		(ii)	where the Court requires notice of the application to be given in Hong Kong, the notice has been given; and
	(b)	believes it to be just that the applicant should not be subjected to one or more of those penalties and disqualifications.”

5. The applicant sought relief on the ground that its contravention of section 23 was inadvertent and was not due to bad faith.  Mr Tavares, Government Counsel took a neutral stance on the application.

6. The onus is on the applicant to prove inadvertence and lack of bad faith.  There is a useful definition of “inadvertence” in Halsbury’s Laws of England, 4^th Edn Reissue, Volume 15, paragraph 728.  It reads as follows :

“‘Inadvertence’ means negligence or carelessness where the circumstances show an absence of bad faith.  Inadvertence may proceed from the applicant not knowing what was done or not knowing that it was wrong.

Ignorance of law may, in certain circumstances, amount to inadvertence.  If a non-qualified person consults a legally qualified person and receives bad advice, he is not to be penalised on that account, but if he acts on the advice of non-qualified persons in the hope that his action is legal and it is not, he is liable to be refused relief for taking the risk.  Similarly, relief will be granted if a person is misled by a textbook on election law.  If any person, whether legally qualified or not, reads the text of a statute or regulation and fails to understand an obscure or difficult point, he may be relieved, but not if the matter is set out clearly.  In such cases relief will be more readily granted where the legislation is new and not yet generally known.  On the other hand, relief granted to a candidate or other person on the ground of ignorance might be refused to an election agent on the ground that it was his duty his acquaint himself with the law.”

7. In the case of Wong Yee Him, HCMP 611 of 2000, 10 March 2000, in paragraph 11 the late Deputy Judge Z. E. Li said :

“The general principle that ignorance of law is no excuse is still true for these cases.  It is only when the party concerned has taken reasonable steps to familiarise with the law but overlooked or misconstrued some intricate provisions that exception may be considered.”

8. The above passage from Halsbury was cited with approval by Lam J in Ex Parte Tsang Wai Ming, HCMP 3463 of 2003.  His Lordship took the view that the passage from the judgment of Deputy Judge Li was of similar effect, and went on :

“It is also necessary to draw a distinction between cases where an applicant simply turned a blind eye or acting 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.  Ex parte Leung Kam Ho Gilbert [1994] 3 HKC 544 is a case where the court refused relief where the election agent simply took no steps whatsoever to try to familiarise himself with the legal requirement.  Hence, 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 election.”

9. In the instant case there is no evidence as to what steps, if any, the applicant took to familiarise itself with the law.  It may be thought that it turned a blind eye or acted recklessly as to the legal requirements that affected it.  The situation here may however be distinguished from that in the cases cited.  Obviously a candidate or his agent would be under a duty to take steps to familiarise himself with the legal requirements of his position.  However the applicant here was neither a candidate nor a candidate’s agent.  It had no connection with the election; it is simply a group of ordinary people.  The field of election law is a somewhat obscure one.  It will naturally be of interest to elected legislators, but I would think that most ordinary people never even consider whether it might affect them.

10. It may be that the applicant did not take any steps to familiarise itself with the law, but since it had no connection with the election or the candidate, I do not see that it was under any particular duty to do so, beyond that of the ordinary person.  The applicant, as soon as it found out that it had contravened the law, took steps to exculpate itself by sending letters of apology to what it considered were the appropriate persons.  In the circumstances, I accept that its contravention of the law was inadvertent and not due to bad faith.

11. Given the inadvertence and the prompt action taken to rectify the situation as far as possible, this is the sort of situation where, although the law has been contravened, a prosecution would probably not serve the public interest, and if the applicant were prosecuted it is most likely that the court would impose an absolute discharge.  I therefore consider that it is just that the applicant should not be subjected to penalties.