WONG YEE HIM v. SECRETARY FOR JUSTICE

HCMP 611/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 611 OF 2000

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J U D G M E N T

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This is an application for relief under Section 26 of the Corrupt and Illegal Practice Ordinance, Cap. 288 ("the Ordinance"). The applicant, a medical doctor by profession, won the seat for the Prince constituency of the District of Kowloon City in the election held on 28 November 1999. However, he committed, and admitted, a number of breaches of Section 19(1) and (2) of the Ordinance. The particulars of the breaches are tabulated in the Appendix hereto.

2. In essence, the admitted breaches were (1) failure to include the address of the printer in almost all the election advertisements published by the applicant, and (2) failure to deposit within time with the returning officer concerned requisite statutory declarations regarding election advertisements published by the applicant.

3. According to affidavits by the applicant, the explanations given for the failures or breaches are:-

(1) in respect of printed materials published before registration of candidacy and the web site, the applicant thought that they were not regulated election advertisements and hence did not deposit declarations until advised;

(2) in respect of election advertisements not bearing the address of the printer, it was purely oversight; and

(3) in respect of failure to deposit statutory declarations, it was due to the applicant being very busy; he had a full an extremely unsteady working schedule at the hospital, he was running an election campaign for the first time, his mother aged over 60 was his election agent, his wife was pregnant, all in all he could not find the time during office hours to deposit the statutory declarations.

The government, including a number of agencies and authorities that is interested in this application, did not in any way challenge the explanations given. However, Mr Chan for the government, taking a neutral position, very helpfully advised the court that the government does not contend or seek to prove that there was bad faith on the part of the applicant when he committed the breaches.

4. Before proceeding further, it may be useful to note three matters. According to Mr Chan for the government, Section 19(2) of the Ordinance does not prescribe a mere formality. The purpose of the provision is to oblige candidates to make available samples of election advertisements for inspection and scrutiny by the returning officer and, more importantly, other candidates. If the election advertisements are objected to on good ground they may be banned. This is part of the regime to ensure a fair election. Secondly, Mr Chan advised that if the court does not grant relief under Section 26 of the Ordinance, prosecution does not necessarily follow. In appropriate cases, the Director of Public Prosecution may decide to, for example, issue a warning instead of criminal proceeding. In this case, obviously it has not reached the stage where the Director of Public Prosecution has to decide and there is no indication whether prosecution would follow. Thirdly, the requisite statutory declaration could be deposited with the returning officer through an agent or simply dropped into a box accessible after office hours.

5. The relevant provisions in the Ordinance are:-

"10. Definition and punishment of illegal practices at elections

Any person who contravenes the provisions of section 12(1), (1A) or (3), 13(2), 14, 15, 16(1) or (1A), 17(1) or (2), 19(1) or (2), 22 or 23 shall be deemed to be guilty of an illegal practice and shall be liable-

(a) on summary conviction to a fine of $50,000 and to imprisonment for 1 year;

(b) on conviction on indictment to a fine of $100,000 and to imprisonment for 3 years.

19. Provisions as to addresses, bills, notices, etc.

(1) No person shall print, publish, exhibit, distribute or post up or cause to be printed, published, exhibited, distributed or posted up, any address, bill, notice, placard, or poster having reference to an election which, in the case of printed material, fails to bear, in the English or Chinese language, the name and address of the printer together with the date of printing and the number of copies printed.

(1A) No person shall be prosecuted for an offence against subsection (1) if, within 7 days of the publication, exhibition, distribution or posting up of the offending printed material, he deposits with the returning officer a statutory declaration giving the name and address of the printer together with the date of printing and the number of copies printed.

(2) Any person who publishes, exhibits, distributes or posts up or causes to be published, exhibited, distributed or posted up any address, bill, notice, placard or poster having reference to an election shall, not later than 7 days after the publication, exhibition, distribution or posting up thereof, deposit with the returning officer 2 copies of such address, bill, notice, placard or poster, as the case may be.

26. Power of Court to except innocent act from being illegal practices

Where, on application made by a candidate, any agent or other person, it is shown to the Court by such evidence as seems to the Court sufficient-

(a) that any act or omission of such candidate or of any agent or other person, would, by reason of being in contravention of any of the provisions of this Ordinance, be, but for this section, an illegal practice; and

(b) that such act or omission arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature, and in any case did not arise from want of good faith; and

(c) that such notice (if any) of the application has been given in Hong Kong as to the Court seems fit; and (Amended 65 of 1984 s. 43)

(d) that in the circumstances it seems to the Court to be just that the said candidate, agent and person, or any of them, should not be subject to any of the consequences under this Ordinance of the said act or omission,

the Court may make an order allowing such act or omission to be an exception from the provisions of this Ordinance which would otherwise make the same an illegal practice, and thereupon such candidate, agent, or person shall not be subject to any of the consequences under this Ordinance or any other enactment of the said act or omission."

6. Mr Yu for the applicant raised a preliminary point of law. Counsel suggested that, according to the wording of Section 26(b), if there is no question of bad faith, provided that the court is satisfied that it is just to do so, relief should be granted. On this construction point, Mr Chan demurred. According to the government position, an applicant must satisfy the court that the breaches were due to "inadvertence, accidental miscalculation or some other reasonable cause of a like nature". Absence of bad faith or proof of good faith does not exempt an applicant. In order to assist the court, counsel referred to three authorities: Nichol v. Robinson [1923] K.B.D. 480; In re Brook Bernacchi et al [1957] HKLR 185; Re Sai Kung Constituency Regional Council Election, ex parte Leung Kam Ho, Gilbert [1994] 3 HKC 544.

7. I do not find Nichol v. Robinson very helpful. Indeed, Mr Yu who drew my attention to it said that this case is not quite relevant. What surprised me most is that McCardie J in that case held that failure to file an election return due to ignorance of the law is "inadvertence". The primary reason seems to be that given at p. 501 of his judgment:-

"the code which governs both Parliamentary elections and municipal elections is very rigorous, very detailed and intricate. The majority of those who are candidates are laymen and not lawyers, and it is easy for an ordinary layman to overlook or misappreciate the innumerable technical requirements which surround municipal as well as Parliamentary elections. Hence the frequent grant of relief by the court."

8. However, the correct approach must be gleaned from the following decisions considered by Yeung DJ (as he then was) in the Leung Kam Ho case:-

"In Munro and M'Mullen [1920] SC 218 Lord Mackenzie commented at p. 221:

It must be understood that a man who is not a lawyer, if he engages to act as an election agent, must recognize that his first duty is to make himself acquainted with what his obligations are.

Lord Strathclyde said in the same case at p. 222:

I wish to add that, after Smith and Sloan [1919] SC 546 and after this case, I do not think that this court will be very ready to accept such excuses as have been offered in the case of the second-named petitioner here [the election agent]. This case, I think, ought to be sufficient warning to men who take up the duties of an election agent that their first business is to acquaint themselves with what these duties are, especially with reference to the statute.

In Ex p Polson & Anor (1923) 39 TLR 231, an election agent applied for relief under the Corrupt and Illegal Practices Prevention Act for failure to transmit the return and declaration of the election expenses within the prescribed time. In his affidavit, he said that before the general election he had been organizing secretary to Sir Thomas Polson's political organization. He had never made a study of the legal or technical side of the conduct of an election, and he had not realized that the duties of an election agent were the subject of such strict legal requirements. He chiefly concerned himself with work in the constituency, and left matters of account and book-keeping to the assistants in the committee rooms. He did not check the receipts. He expressed his sincere regret for the irregularities, but he assured the court that none of them arose from any lack of good faith. In refusing the application, Sankey J said the following:

An election agent was not bound to know every syllable of the law of elections, but Mr Dawes knew nothing either of the law or of what an agent's duties were. It was not right that any ignorant person should become an election agent and possibly impugn the return of the candidate for whom he had acted. Many things had been left undone which should have been done and many things have been done which should not have been done. A 'political organizer' might be one of the most ignorant persons imaginable. A person of no skill and knowledge could not obtain a post of election agent and neglect his duties altogether so as gravely to imperil the success of the candidate or that candidate's right to sit in Parliament, and then come to the court and obtain relief because he had acted without any corrupt motive.

In Re Country Councils' Elections, Layton and Woodbridge's Case (1889) 5 TLR 198, Wills J said the following:

I am of the same opinion. Candidates are only entitled to relief under s. 20(2) if the act 'arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature'. That, it seems to me, must be a reasonable act of inadvertence; and further, we must be satisfied it be 'just' before we make this order."

9. The judgment of Gould J in In re Brook Bernacchi is quite concise. The relevant parts are as follows:-

"I fully accept the definition of the term "inadvertence" which is derived from the case of Ex parte Lenanton ex Aparte Pierce⁽¹⁾: "Inadvertence means negligence or carelessness where the circumstances show an absence of bad faith." The evidence, however, is required to show some reasonable excuse for the inadvertence and I take it that this rule means that the negligence must not be of so gross a nature or so culpable as of itself to raise doubts concerning the good faith of the applicants.

The judgment in Nichol v. Robinson⁽²⁾ appears to go even further than this in suggesting that good faith is not of itself sufficient in a case where the negligence is gross and culpable.

In the present case there was undoubtedly very heavy over-expenditure beyond the amount allowed by law for the particular election. It is not easy to assign a specific reason for the default. There is no question of ignorance of law. The lapse is attributed by the applicants in the main to lack of supervision and control exercised by the election agent, Mr Au, who was, on the evidence, left in charge of all matters financial by the candidates. But I must hold that there was also a definite lack of the direction or instruction from the candidates to Mr Au, which in the circumstances of the case might have been expected of them.

Reliance is placed also by the applicants and the applicants' agent upon the recent introduction of the legislation under which this particular election was conducted, into Hong Kong law, and attention also has been drawn to the difference which exists between Hong Kong and England (from the law of which country the bulk of the authority on this point is derived and also the legislation itself) in the matter of election experience, and public familiarity with the duties and principles involved. I attach some weight to this argument, though it might be and probably would be of less avail in any future application of this nature, in view of the publicity which this particular application has received. A further factor which is apparent in this particular case is that there were a number of joint candidates, and I think it will be conceded, in fact it has been held, that the difficulties which arise in such circumstances are greater than a case where there is but one single candidate.

There is no doubt that the election campaign from the point of view of the expenditure of money was completely mismanaged but I have no hesitation in accepting that the candidates acted with complete good faith. Their conduct since the discovery of the over-expenditure has been exemplary and the greater part of the blame attaches to their agent. Though I have no doubt that there was negligence on the part of the candidates, I do not find it to be of the gross character referred to in the case of Nichol v. Robinson⁽²⁾. I am therefore prepared to make orders granting the relief asked for." (pp. 186-187)

"I have not yet referred to the second of the applications which is made under s. 29 and asks for relief for having failed to send a return and declaration respecting election expenses as required by s. 29 of the Ordinance aforesaid. The application is made on the ground of inadvertence or other reasonable cause of a like nature. I think that, having discovered that the fact of the over-spending and being in doubt as to the extent of it, the applicants did not act unreasonably in this particular matter, and I grant this application on the ground that there was other reasonable cause of a like nature." (p. 189)

10. In the Leung Kam Ho case, the application was for exception for the election agent. Yeung J found that the agent shut his eyes completely to the rules and regulations and to his duties and obligations as an election agent. On that basis, relief was refused.

11. Thus, the general principle that ignorance of the law is no excuse is still true for these cases. It is only when the party concerned has taken reasonable steps to familiarize with the law but overlooked or misconstrued some intricate provision that exception may be considered.

12. As to the relationship between "good faith" and "inadvertence, accidental miscalculation or some other reasonable cause", although Gould J appeared to treat them as two sides of the same coin, upon further reading of Section 26(6), I think Mr Chan must be right. Good faith or bad faith goes to the intention or motive of the applicant. "Inadvertence, accidental miscalculation or some other reasonable cause of a like nature" refers to causation. Proof of good faith or absence of bad faith does not necessarily mean that the criteria on causation has been met; although if inadvertence, accidental miscalculation or some other good cause has been proven, the court may assume good faith until, say, the government advances evidence or arguments to demonstrate bad faith on the part of the applicant.

13. Taking another angle, inadvertence, accidental miscalculation or some other reasonable cause presupposes good faith. If proof of good faith is enough, the legislative had no need to spell out specific instances of "inadvertence, accidental miscalculation or some other reasonable cause".

14. In the premises, the fact that the government did not seek to challenge the good faith of the applicant merely means that no obstacle has been placed before the applicant. The applicant, however, still has to make good his case on causation.

15. Moreover, because of the words "of a like nature", "inadvertence, accidental miscalculation or some other reasonable cause" should be construed as referring to errors of the same genre. Whereas the meaning of "inadvertence" is somewhat elusive, "accidental miscalculation" in plain English is more illuminating on the nature of the kind of errors that may excuse an applicant. Thus, the "other reasonable cause" cannot be a deliberate act or deliberate omission. If for example the applicant was caught between the devil and the deep blue sea and he decided to choose the lesser evil, his decision although quite reasonable and taken in good faith is not acceptable because it is not the kind of cause for breach contemplated by Section 26(b). It was a deliberate act or deliberate omission.

16. There is one other question touched upon in the late Mr Bernacchi's case. That is the question of a candidate's relief for the breach of the election agent. Suppose a candidate entrusted to his election agent the work of filing statutory declarations with the returning officer, and the agent failed to do so, should the candidate be able to claim relief? Having found a definite lack of direction or instruction to the election agent, Gould J held that the negligence on the part of the late Mr Bernacchi not so gross as to deprive him of relief. I think the decision is largely justified on the ground that there were joint candidates involved and the accounts for the shared expenses were more complicated than usual. Had it not been for this special factor, relief would not have been granted. Conversely, provided a candidate had given proper direction or instruction, and exercised adequate supervision and control, he is entitled to relief even though his election agent failed to discharge the candidate's duty delegated to the agent. However, the question remains as to what kind of cause for the breach by the election agent would enable a candidate to seek relief on his own behalf? Must it be that the election agent's failure was due to "inadvertence, accidental miscalculation or some other reasonable cause" too? The instant case does not call for the answer to this potentially difficult question. The applicant in this case did not shift the cause to his election agent. He did not claim that he delegated his own duties to his election agent.

17. In regard to the explanations given by the applicant, I am prepared to accept that the failure to file timely statutory declarations in relation to election advertisements published before registration of candidacy and in relation to the web site due to misunderstanding of the law was caused by inadvertence. Obviously he did try to familiarize with the law. As this was his first time candidacy and the law on these extraordinary materials is not that explicit for a layman, the mistake is acceptable. Taking all factors and circumstances into consideration, I cannot find any reason to say that it would be unjust to grant relief for this illegal practice. Therefore, relief is granted for the breaches covered by this explanation.

18. As to the failure to have the printer's address on election advertisements, it is not disputed that there was oversight. All other relevant particulars about the printer were on the election advertisements. There is, of course, the factor that nearly all the election advertisements did not bear the address of the printer. It may be said that the oversight was so gross as to be inexcusable. But, as Mr Yu for the applicant so persuasively put it, this factor shows only consistent oversight and should not be taken as magnifying the negligence. However, I think the essential point is that the requirement about printer's address is very clearly stated in Section 19(1) of the Ordinance. There is no room for mis-interpretation. This provision is one of the key provisions a candidate must be thoroughly familiar with because printed election advertisements are virtually indispensable. It is, in my view, recklessness rather than inadvertence in not checking and ensuring that all printed election advertisements comply with the unequivocal and key provisions of the law. In the circumstances, even though bad faith cannot be and is not attributed to the applicant, since the cause of the breaches covered by this explanation does not qualify as inadvertence, accident miscalculation or any other reasonable cause, the applicant fails to get over the first hurdle. I do not have to consider the last hurdle whether it is just under 26(d) to grant relief. The applicant simply is not qualified for exception under Section 26(b).

19. As to the failure to deposit requisite statutory declarations in time on the ground that the applicant was unable to find time, obviously he knew he had to comply with the law but he chose not to do so. However sympathetic I feel towards the applicant in the light of the circumstances he was in, the cause of the breaches is a deliberate decision which in no way comes within Section 26(b). It is legally inexcusable. Again, I must refuse to make an exception of such breaches.

20. Having refused exception for the applicant on some of his admitted breaches, I would like to make one more observation. Section 26(b) of the Ordinance prescribes specific tests for consideration for exception. My function and duty is to determine whether an applicant meets the tests or not. There is no discretion left to me unless an applicant gets past the first hurdle of Section 26(b). Although the applicant before me does not pass the tests for Section 26(b), there is still inherent discretion with the Director of Public Prosecution on whether to prosecute. In my view, there are circumstances in the applicant's case, if given sympathetic consideration, such that the Director of Public Prosecution can in all fairness dispose of the case otherwise than by prosecution.

21. Lastly, the applicant is ordered to pay the costs of the Respondent, such costs to be taxed if not agreed.

APPENDIX