WONG SIU YEE v. CHIANG SAI CHEONG

MP No.1151/1995

H E A D N O T E

ELECTION PETITION - ALLEGATIONS OF ILLEGAL PRACTICES OF 2 ALLEGED FALSE STATEMENTS IN CONTRAVENTION OF SS.16(1) AND 16(1A) OF THE CORRUPT AND ILLEGAL PRACTICES ORDINANCE IN THE MARCH 1995

URBAN COUNCIL ELECTION - ALLEGATIONS OF FALSITY NOT PROVEN ON A BALANCE OF PROBABILITY - PETITION DISMISSED

IN THE SUPREME COURT OF HONG KONG

(ELECTION PETITION ORIGINAL JURISDICTION
In re Urban Council Election of the Kowloon
City West Constituency held on 03.05.95)

HIGH COURT MP No.1151/1995

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J U D G M E N T

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Yam, J.:

Introduction

1. This is an election petition by which the Petitioner alleged that the Respondent had committed illegal practices in contravention of ss.16(1) and 16(1A) of the Corrupt and Illegal Practices Ordinance ("CIPO") in the March 1995 Urban Council ("UC") Election.

2. The Petitioner alleged that the Respondent had made two untrue statements of fact, namely :-

1. At an election forum made on 13 February 1995 and broadcasted on 17 February 1995 by saying :

"The Petitioner publicly announced that he would support Councillor Chan Nei Yue but in fact an official of the City District Office saw it with his own eye that the Petitioner tick his own name", and

2. By publishing a leaflet on 17 February 1995 saying :

"This morning the Urban Council successfully requested the Town Planning Board to hand over the temporary amenity park of Chun Man Court to the Urban Council for construction of a permanent park."

3. The former is concerned with the personal character qualifications or conduct of the Petitioner under s.16(1) and the latter with the personal character, qualifications or conduct of the Respondent under s.16(1A) of the CIPO.

The burden and standard of proof

4. The burden of proof is on the Petitioner who must prove each and every element of the two allegations. Mr Martin Lee, Q.C. who appeared with Mr E. Shum for the Respondent submitted that the Petitioner has to prove beyond reasonable doubt that the Respondent is guilty of illegal practice. It has been decided in the case of R. v. Rowe, ex parte Mainwaring [1992]4 All ER 821, where the court held that :

"A person accused of corrupt practice before an electoral court should only be held to have committed it if the allegation is proved beyond reasonable doubt .... It would not be desirable to have a different standard of proof in different courts on the same issue."
(At p.829F-J)

5. However, Mr Ronny Tony, Q.C. who appeared with Mr Gary Kwan submitted that the standard of proof in this civil case is still one of a balance of probabilities. They cited Phipson on Evidence (14th ed.) at 4-39 [p.80] which said :

"4-39 The standard of proof required to prove a criminal offence in civil proceedings is no higher than the standard of proof ordinarily required in civil proceedings. However, 'the more serious the allegation the higher the degree of probability that is required. The gravity of the issue becomes part of the circumstances which the court has to take into consideration in deciding whether or not the burden of proof has been discharged. The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.' Denning L.J. put the test in this way : 'the degree depends on the subject-matter. A civil court when considering a charge of fraud will naturally require for itself a higher degree of probability than that which it would require when asking itself if negligence is established. It does not accept so high a degree as a criminal court even when it is considering a charge of a criminal nature; but it still does require a degree of probability which is commensurate with the occasion."

6. This is a serious matter in which the Petitioner is alleging illegal practices of the Respondent. I would adopt a standard of proof of high degree of probability. However I shall state in my judgment what the Petitioner has proved or has failed to prove and by what standard should the standard be otherwise.

The first complaint

7. The Petitioner got 8 votes out of 21 District Board Member of the Kowloon City as opposed to 13 votes for the other candidate Chan Nei Yue in the indirect election of the UC seats from the Kowloon City District Board ("KCDB"). The background to this election was this : The Petitioner was the first one to be nominated for such an election. He was a member and vice-chairman of the Liberal Democratic Foundation ("LDF") and he received the support of the party. Later on, another LDF member, Mr Chan Nei Yue, was also nominated. Consequently, two LDF members were running against each other for the same seat. This created a split in the party and was bad for its image. Eventually, two days before the election, it was resolved within the party that Wong Siu Yee, the Petitioner, would withdraw from the election and the party would support Chan Nei Yue instead. However, the Petitioner could not, according to the Rules of Election, withdraw at that stage as the deadline was three days before the election.

8. Immediately after the election the Respondent confronted the Petitioner whether he had voted for himself instead of supporting Chan Nei Yue as he had said immediately before the election. The Petitioner did not answer this question directly and he explained that it was due to his misunderstanding of the regulation of voting and in particular secret ballot as he thought he was not supposed to disclose how he voted even voluntarily.

9. The Respondent found it strange that the Petitioner could get eight votes in spite of the fact that he had declared his withdrawal. This was because the Respondent was the main moving force to support Chan Nei Yue in opposition to the Petitioner. In particular, they have secured altogether 13 votes which included the four other LDF members, namely, Chan Nei Yue, Tang Po Hong, Siu Yuen Sheung, Mak King Lun and nine other members, i.e. the Respondent, Luk Wai Kwong, Ng Ching Man, Chan Sing Kwong, Yam Sin Ling, Lee Chuk Fan, Chu Chor Sing, Lam Ming and Fung King Man.

10. All these 13 members had given evidence before me. Only two LDF members Mak King Lun and Siu Yuen Sheung exercised their legal rights by declining to disclose how they had voted. The other 11 said categorically that they had voted for Chan Nei Yue. However, the Respondent said all 13 of them had also confirmed with the Respondent that they casted their votes on Chan Nei Yue. It was never put by counsel for the Respondent that they in fact had voted for the Petitioner. From the testimony of the witnesses, I find, on the balance of probabilities, that it is more probable than not that the 13 District Board Members named by the Respondent did actually vote for Chan Nei Yue, i.e. the other eight must have voted for the Petitioner.

11. In other words, the Petitioner had failed to prove even on the balance of probability that he actually had voted for Chan Nei Yue and part of the Respondent's first statement is wrong.

12. The Petitioner actually failed or refused to say on three occasions whether he voted for Chan or not, i.e. :-

(a) right after the indirect election when he was confronted by the Respondent;

(b) at the election forum when he still had one more minute to respond to the allegation of the Respondent which called for the Respondent to mention that a District Officer saw the Petitioner ticking his own name; and

(c) in his first affirmation after commencement of the petition.

13. It was only in his second affirmation filed on 21 July 1995 that the Petitioner said that he had voted for himself. However, he was told by his solicitor in March that it was alright for him to do so and yet he still did not do so when he filed his first affirmation in June 1995. The Petitioner under cross-examination admitted that he actually had asked Ms Li Lin for whom she had voted and this was inconsistent with his avowed insistence to abide by the rules of the game in voting.

14. Both the Petitioner and another District Board Member, Mr Wong Chi Keung, another LDF and at one time the election manager of the Petitioner, suggested that there might be certain conspiracies to damage the image of LDF by giving the Petitioner eight votes. However, this is only pure speculation. In any event, it is a very risky strategy for the other camp to employ because the Petitioner might actually win on account of it as he would require only three more votes or even less if some were to abstain. If there were such a conspiracy, there is no reason for the Respondent to be angry and to confront the Petitioner after the indirect election.

15. There was another incident worth mentioning which would shed light on the voting patterns and the credibility of both the Petitioner and Mr Wong Chi Keung. A few days before the LDF party meeting, the Petitioner and Wong Chi Keung went to see another District Board Member Luk Wai Kwong. All agreed that the Petitioner was very emotional at that time and was even in tears. The Petitioner was no doubt very eager to win and to beat his LDF colleague Chan Nei Yue at least at that time.

16. The Petitioner's evidence was that before the LDF party meeting to support Chan Nei Yue, he had already secured 11 sure votes and according to Wong Chi Keung, the Hon Poon Kwok Lim was also a sure vote for the Petitioner, i.e. a total of 12 sure votes. However, after the emergence of Chan Nei Yue, the four LDF votes became uncertain. Therefore the Petitioner had to make up 11 votes again by three more votes. Since Luk Wai Kwong can also secure his two good friends to vote in line with him, and if he supported the Petitioner, then they would secure three more votes again. Thus, the prime and first intention of this visit was to secure the support of Luk Wai Kwong.

17. Secondly, they also offered to support Luk if he was interested to stand for the chairmanship of the KCDB. As Tang Po Hong was a LDF member running for chairmanship, this would mean that the two Wongs had in fact conspired to betray not only on their fellow LDF members but also their party. However, according to the Petitioner they had made "an untrue promise to Luk to find out what his intention was", that is whether he would challenge Tang Po Hong for chairmanship. I find his testimony does not make any sense. At that time they were not so concerned with the chairmanship but the seat in the UC. Although Mr Luk also said they have mentioned the two matters just in sequence yet that would give him the impression that the two things are linked together, i.e. if Luk and his two friends would support the Petitioner, then they would support Luk to be the Chairman of the District Board. Both the Petitioner and Wong Chi Keung denied such an offer. However, I find that they deliberately gave this message at least indirectly to Luk in order to secure three more votes for the Petitioner's election. I do not accept that their offer to support Luk as the chairman was just an incidental or parallel matter. I do not find both the Petitioner and Mr Wong Chi Keung credible at all.

18. In the end, I find the Respondent and his witnesses are more credible and the 13 votes were casted by those so-called "gang of 13" and on the balance of probabilities, the Petitioner actually had voted for himself and Wong Chi Keung had also voted for the Petitioner.

19. However, the matter does not end here since the Respondent also made in the statement that a District Officer had saw the Petitioner ticking his own name during the voting. That District Officer, according to the Respondent, was Mr William Yap. Mr Yap gave evidence in the adjourned hearing since at the first hearing he was on leave and away from this Territory. When he gave evidence he gave me a distinct impression that he was very cautious. He insisted all his conversation with other District Board Members were only on "professional" level. He tried to give me an impression that all his dealings with other District Board Members were professionally done and professionally he would not have said such a thing to another District Board Member. This would surely cause him great embarrassment since he was a District Officer and a returning officer for the voting on that day.

20. On the balance of probabilities, I prefer the Respondent's evidence on this point. The Respondent shows considerable regrets for uttering such thing and he explained that that was only made in order to corner the Petitioner at the election forum and to extract from him whether he did actually vote for himself. He has no intention to embarrass the District Officer. In the end, I must say that I was in doubt whether the District Officer had not expressed that to the Respondent during the Tao Temple ceremony a few days after the election meeting. In other words, the Petitioner also failed to prove even on a balance of probabilities that the District officer had not informed the Respondent that he actually saw the Petitioner ticking his own name.

The second complaint

21. The second complaint concerned with a temporary amenity park in the middle of Chun Man Court. The Housing Authority ("HA") was interested to build an old-people home there. Chun Man Court residents objected and would like it to be converted to a permanent park. Eventually on 17 February 1995, the Respondent published the leaflet saying :

"Good news

On 17 February 1995 the Urban Council successfully requested the Town Planning Board to hand over the temporary amenity park to Urban Council for construction of a permanent park."

22. What happened on 17 February 1995 was that the Metro Planning Committee ("MPC") which is a sub-committee of the Town Planning Board ("TPB") decided to re-zone the site as an open space and thus opened the way for the site to be handed over to the UC to be developed into a permanent UC Park. The events leading up to the decision of the MPC involved considerable efforts of a number of parties involved including the Respondent. I shall not list all of them herein below but the important events only.

23. As early as 1987, the Respondent proposed in the Environmental Improvement Committee of the KCDB to convert the site, which was then a piece of vacant Crown land, into a temporary public garden or sitting-out area. In early April 1994, when the Respondent realized the intention of the HA to use the site for the construction of residential houses for the elderly, he mobilized the residents of Chun Man Court by various activities and meetings. The Association of All Chun Man Court Mutual Aid Committee ("All MAC") was established on 27 April 1994 in opposition to the proposal of the HA. The Respondent was a member but he had later withdrawn from the Committee.

24. In June the Respondent was instrumental to getting the support of the KCDB to oppose the proposal of the HA.

25. In September the Respondent wrote to Mr Eason, the then Secretary of Planning, Environment and Lands, asking for his support for the "UC's application to hand over the site to be used as a UC permanent park". In September, the District Planning Office/Kowloon ("DPO/K") informed the Respondent that they had no objection to use the site for open space purposes but comments from the Director of USD ("DUS") should be sought and the DUS was informed of the situation.

26. It was in these circumstances that the All MAC (after the resignation of the Respondent) lodged its application with the TPB for rezoning the site into open space on 28 October 1994. Thereafter, the Respondent arranged to have residents of the Chun Man Court to make representation to the UC in November 1994. The paper was prepared for the Recreation Selection Committee of the UC. Paragraph 11 of the papers stated that :

"If the UC gives its in-principle approval to develop the relevant land into a UC garden, the USD would apply to the Lands Department and Planning Department for the land."

The Recreation Selection Committee of the UC approved the paper on 14 December 1994. On the following day, 15 December 1994, the DUS advised the DPO/K that :

"That the UC had given in-principle approval for developing the site as a UC garden subject to the land being allocated to UC and your planning permission given."

It was in this memo that the caption for the first time was stated as: "Application for amendment to the draft Homantin Outlining Zoning Plan ...." The UC in fact did not make any application for amendment to the Zoning Plan.

27. Subsequent memos from DUS to DPO/K dated 19 December 1994 and 6 January 1995 stated that : "Government will meet all resumption, clearance or demolition cost in making the site available to Council," and that it is : "DLO/KW's responsibility to negotiate with the ... parties concerned in order to make the site inclusion of public access available to the UC for garden development." and "You are therefore expected to proceed with for re-zoning proposal on this basis." DUS also voiced his strong objection to HA's proposal for public housing for senior citizens in his memo to DPO/K dated 3 February 1995.

28. Eventually, a meeting of the MPC was held on 17 February 1995 and a paper was prepared for that meeting. The decision of the MPC was based on a number of factors namely :-

1. The District Board fully supported the proposal to develop the site as a public open space;

2. The Urban Council had indicated their willingness to take up the site permanently after the development of the site as the Urban Council's open space; and

3. The Planning Department has no objection to re-zone the site as requested.

29. It can be seen from the minutes of the MPC meeting that the views of KCDP and UC featured very prominently in their deliberation, in particular the UC's willingness to take up the site and develop it into a permanent park is very important although they are not the one who has requested the TPB to hand over the temporary park to the UC for construction of a permanent park. The TPB would only make policy decision on zoning or rezoning. Upon its recommendation the Lands Office will convey the land to the responsible body, and in this case, the UC. The UC has to be willing to take up the land before the policy can be made.

30. Although it is not quite correct to say "the UC has successfully requested the TPB", it was obvious that without the strong support of the UC and USD, the MPC would be slow to rezone the site as requested. Though the words used by the Respondent in the "Good News" were not felicitous or elegant, they were not calculated to mislead the residents of Chun Man Court as submitted by counsel for the Respondent. Since the rezoning of the MPC, the land will be handed over to the UC to be developed into a UC permanent park as surely as night follows day. It is certainly good news that the HA would not get the site for their redevelopment and the site would be rezoned into an open space to be developed by the UC as a permanent park.

31. Counsel for the Respondent submitted that the correct way of expressing the message would be :

"This morning on the application of All MAC (of which Chiang Sai Cheong had formerly been an active member) and with the active support of the UC (of which Chiang Sai Cheong is a member), the MPC being a sub-committee of the TPB, decided to rezone the site as an open space and thus opens the way for the site soon to be handed over to the UC to be developed into a permanent UC park."

32. In the end I find the Respondent has not wilfully made or published any false statement of fact in relation to himself in the leaflet for the purpose of promoting or procuring his election as alleged by the Petitioner.

33. Further, the Respondent, from the evidence before me and known to the Respondent himself, has every reason to believe what he stated in the leaflet was true and he is entitled to rely on the defence raised or provided by subsection (1B), i.e. he had reasonable grounds for believing and did believe the statement made by him.

Conclusion

34. By reason of the aforesaid matters, I find that the Petitioner has failed to prove both allegations even on the balance of probabilities. The Respondent is not in breach of either s.16(1) or (1A). Accordingly, the petition herein is dismissed. I shall reserve the question of costs at the request of counsel and if they are not agreed, a date shall be fixed for argument.

(D. Yam)

35. Judge of the High Court