DAVID HO v. SECRETARY FOR JUSTICE

CACV 107/2022, [2023] HKCA 488

On Appeal From [2022] HKCFI 566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 107 OF 2022

(ON APPEAL FROM HCMP NO 1766 OF 2021)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  The following principal issues arise for determination in this appeal against the order of Coleman J dated 7 March 2022 dismissing the Applicant’s application for an order to allow him to lodge an election return out of time:

(1)  whether the Applicant’s failure to lodge an election return within the statutory period of 30 days after the date on which the result of the relevant election was published in the Gazette was attributable to “inadvertence” by the Applicant or any other person within the meaning of s 40(2)(c) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“the Ordinance”); and

(2)  if the answer to (1) is “yes”, whether there is/are any sufficient ground(s) for the Court of Appeal to interfere with the Judge’s exercise of discretion to refuse to grant relief to the Applicant under s 40 of the Ordinance.

BACKGROUND FACTS

2.  The basic facts of this case have been comprehensively set out in the written decision of the Judge dated 7 March 2022 (“the Decision”).  For the purpose of disposing of the present appeal, the following brief summary, taken largely from the Decision, should suffice.

(i)  Personal background

3.  The Applicant was born in 1965.  He is a University graduate with a Master’s Degree in Engineering from Cornell University, and is currently the chief executive officer of a company known as Macy’s Candies Limited, which was founded by him in 1992.

(ii)  Standing as a candidate in the Election

4.  The Applicant stood as a candidate in the 2021 Election Committee Subsector Ordinary Election (“the Election”) for the Import and Export Sector.  Before the Election, he had not run in any election and had no experience in assisting any election or supporting any candidates. He had no political affiliation, and did not have any organisational assistance for understanding the legal obligations of an election candidate.

5.  In relation to the Election, the Applicant enlisted the help of Ms Man, an “administrative officer” at his company. Ms Man acted as a volunteer and, like the Applicant, had no legal background or election experience.

6.  The Applicant submitted his nomination form on 9 August 2021.  When the nomination period closed on 12 August 2021, he learnt that there were only 17 candidates standing for the 17 vacancies in the Import and Export Sector, meaning that he was an uncontested candidate in the Election.  Knowing that he would be elected by default, the Applicant decided not to organize any election campaign or make any advertisement throughout the entire election period from 12 August 2021 to 19 September2021.  Thus, he incurred no election expenses, nor did he receive any election donation.

(iii)  Documents and materials provided by the Office to the Applicant relating to the lodging of an election return

7.  At the time when he submitted his nomination form on 9 August 2021, he received from the Registration and Electoral Office (“the Office”), inter alia, (i) a set of Notes to Candidates titled “2021 Election Committee Subsector Ordinary Election” (“the Notes to Candidates”), and (ii) a Candidate Folder (“the Candidate Folder”), which contained more than 50 documents with over 780 pages.

8.  §9 of the Notes to Candidates drew attention to the fact that the Candidate Folder included, amongst other documents, forms which candidates might need to complete, an “Action Checklist for Candidates” and a CD on “How to Complete the Return and Declaration of Election Expenses and Election Donations”, and reminded candidates to read those documents and pay attention to the relevant details and deadlines.

9.  The Candidate Folder contained, amongst other documents and materials, the following:

(1)  various forms, including “Return and Declaration of Election Expenses and Election Donations” (“the Election Return”);

(2)  “Guide to Return and Declaration of Election Expenses and Election Donations” (“the Guide”);

(3)  “Frequently Asked Questions - Election Return” (“the FAQ”);

(4)  “Action Checklist for Candidates” (“the Action Checklist”);

(5)  “Clean Elections Information Booklet - Election Committee Subsector Elections and Chief Executive Election prepared by ICAC” (“the ICAC Booklet”); and

(6)  a DVD titled “How to complete the Return and Declaration of Election Expenses and Election Donations” (“the DVD”).

10.  According to the Applicant, he gained his knowledge and impression about what he had to do with the Election Return mainly from 3 documents: (i) the Election Return itself, (ii) the Guide, and (iii) the FAQ, and there was no clear guidance in those 3 documents on whether a candidate like him who had made no advertisement, incurred no expenses and received no donations would still have to lodge the Election Return.

(1)  In respect of the Election Return, he refers to the last two sentences of the first numbered paragraph under the section headed “Remarks” on page 4 thereof, which read -

“The candidate should declare the expenses for each and every item of election advertisement no matter how minimal the value of the expense is. Even if the expense for a particular election advertisement is zero, the candidate should also declare such item for checking by the Registration and Electoral Office.” [underlining original]

He says that he understood the above remark to mean that where an election advertisement had been made but the expenses incurred in making the advertisement was zero, a candidate still had to declare the advertisement.  However, the remark did not cover the situation where no election advertisement had been made, or where no expenses had been incurred throughout the Election.

(2)  In respect of the Election Guide, which included a sample Election Return, the Applicant says that he had reviewed it but did not see any guidance on whether an election return was required when no election expenses had been incurred and no election donations had been received.

(3)  In respect of the FAQ, the Applicant refers to the following question and answer:

“Q5: If the costs of an election advertisement of a candidate is zero, does the candidate still need to declare at Section D of the election return?

A5:      ... Even if the expense for a particular election advertisement is zero, the candidate should also declare the item.”

Again, he says that he understood this question and answer only dealt with the case where an election advertisement had been made at zero costs, but did not shed light on the situation where no election expenses had been incurred at all.

11.  Pausing here, it may be noted that the FAQ contained other relevant questions and answers, including the following:

“Q15: Is a candidate still required to submit the election return even if his/her nomination was ruled invalid, or he/she has withdrawn from the election during the nomination period?

A15: Under section 2 of [the Ordinance], ‘candidate’ means a person who stands nominated as a candidate at an election, and also means a person who has publicly declared an intention to stand as a candidate at the election before the close of nominations for an election. Therefore, even if a person withdraws his/her nomination after submitting the nomination form, or is decided by the Returning Officer as not validly nominated, or has publicly declared an intention to stand as candidate at the election before the close of nominations for the election but has not submitted the nomination form in the end, he/she will be regard as a candidate of the election, and must submit the election return before the statutory deadline (regardless of whether he/she has incurred election expense or accepted election donations).” [underlining added]

12.  As observed by the Judge, the Applicant does not mention this Question and Answer in his Affirmation filed on 5 November 2021, and it is not clear if he read them and, if so, what his interpretation of them might have been.

13.  The Applicant says that he also took notice of the DVD, which provided a step-by-step guide to filling the Election Return, but there was no mention in it as to whether an election return was required in the event that no election expenses were incurred and no election donations were received.

14.  The Office also held an online briefing session (“the Briefing Session”) for the candidates on 25 August 2021.  According to the Applicant, due to his unfamiliarity with technology, he did not manage to attend the online session despite his attempt.  However, Ms Man eventually found out that the video of the online session had been uploaded to the Office’s website and she downloaded it for the Applicant.

15.  Towards the end of the Briefing Session, there was a question and answer session.  The following is relevant to the Election Return:

“Question: If you have no election contest in a subsector from today to the end of the election period, all the meetings, talks I give…do you have to declare the expenses or lodge all the materials?

Answer:  For the election expenses, the expenses incurred to promote the election of a certain candidate, but if something happens after the election has taken place, unless it is still linked to the election in some way, otherwise the material (the talk) will not be treated as having to do with someone’s election, but when you talk about someone elected by default, this candidate will still have to make the declarations, all the expenses will have to be incorporated into the election return, in some cases, there may be prior commitments to expenses that are paid afterwards, these things still have to be declared. But for someone who already elected and something happens afterwards it wouldn’t be treated and declared but I cannot exhaust every possibility there so we need to look at them on a case-by-case basis.” [underlining added]

The Applicant says that he understood from this question and answer that where a candidate was returned uncontested (like himself), expenses thereafter would not be treated as election expenses.  However, although it was also mentioned that “someone elected by default, this candidate will still have to make the declarations”, there was no guidance on the situation where a candidate had not incurred any expenses.

16.  The Applicant says that from the above materials, he gained the impression that if he incurred any election expenses, or received any election donations, he must submit the Election Return to the Office after the Election.  Pausing here, as pointed out by the Judge, the Applicant does not put the matter in the other way round.  He does not say that he understood or believed that if no election expenses were incurred or donations received by a candidate, then that candidate need not submit an election return[1].

17.  Other than Q&A 15 in the FAQ referred to in §11 above, there were other documents provided to the Applicant which stated, in unequivocal terms, that he was required to lodge an election return even if he had not incurred any election expenses, or received any election donations.

(1)  In the Action Checklist, which is in the form of a 2-column timetable which sets out in chronological order the key steps to be taken at different milestone dates before and after the Election, the following is stated at §35(a) relating to the step required to be taken “[b]efore the statutory deadline for the submission of election returns as required under section 37 of the [Ordinance]” -

“Lodge with the CEO an election return setting out all election expenses incurred by the candidate and the election expense agents on his/her behalf and all election donations received by or on behalf of the candidate.

Candidates are required to submit an election return even if no election expenses have been incurred or no election donation has been received.” [emphasis original]

(2)  In the ICAC Booklet, there is a list of Questions and Answers.  Q&A 17 states as follows -

“Q17 What are the points a candidate should take heed of while submitting his election return? Is a person required to submit an election return if he has withdrawn his candidature after being nominated as a candidate at the election or his nomination has been ruled invalid? What about if he is returned uncontested, not elected or has not incurred any election expenses? What remedial actions can a candidate take if he fails to lodge the election return within the period as required by the law.

A17 …

            According to section 2 of the ECICO, a “candidate” is defined not only as a person who stands nominated as a candidate at an election, but also a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate at the election.  A person has to submit his election return to the CEO within the period as required by the ECICO even if he has withdrawn his nomination after being nominated as a candidate at the election or his nomination has been ruled invalid, or he is returned uncontested, or not elected, or has not incurred any election expenses.” [underlining added]

(3) There is also a “Dos and Don’ts Checklist” in the ICAC Booklet. One of the items on the checklist is as follows -

“Do lodge the election return with the CEO within the period as required by the law if a person, at any time before the close of nominations for the election, has publicly declared an intention to stand as a candidate at the election; even if he has withdrawn his nomination after having been nominated as a candidate at the election or his nomination has been ruled invalid; or the candidate is returned uncontested, is elected or not elected or has not incurred any election expense.” [underlining added]

18.  The Applicant says that the materials mentioned in §17(1), (2) and (3) above were what he “subsequently found out to be relevant to the Election Return but have overlooked”[2].  He also admits that it was “inexcusable” for him to have overlooked those materials which stated the need for a candidate to lodge an election return notwithstanding that no expenses were incurred and no donations were received, but his omission was inadvertent and without any bad faith on his part[3].

(iv)  The Election

19.  The Election took place on 19 September 2021, and the Applicant was successfully elected by default.

(v)  The reminders to lodge the Election Return

20.  On 24 September 2021, the Office sent a reminder letter (“the Reminder Letter”) to the Applicant’s office address, reminding him to lodge an election return on or before 23 October 2021 to the Chief Electoral Officer (“CEO”) under s 37 of the Ordinance. The Reminder Letter stated, inter alia, as follows:

“The result of the 2021 Election Committee Subsector Ordinary Elections was published in the Gazette Extraordinary on 23 September 2021. To comply with the legal requirement, please complete the election return and submit it to the CEO ([Address]) on or before 23 October 2021. The election return can be submitted to the above address by post by courier, or in person by the candidate or any person on behalf of the candidate. If the election return is submitted by post, the postmark must be dated on or before 23 October 2021. Please note that even if you did not incur any election expenses or receive any election donations, you are required to complete and submit the election return to the CEO. Besides, the statutory declaration in the election return should be made before a Commissioner for Oaths, a Justice of the Piece or a practising solicitor.” [emphasis original, underlining added]

21.  According to the Applicant, Ms Man “received and opened the Reminder Letter”, and informed him that the Office had reminded candidates to submit election returns, remove election advertisements and apply for return of election deposit.  He asked Ms Man to prepare “the necessary forms to be signed” for submission.  Ms Man prepared some forms, but the Election Return was not among them.  After Ms Man prepared documents for his signature, he asked her to confirm those were all the paperwork required, to which she responded affirmatively.

22.  On 20 October 2021, the Office sent an email reminder (“the Reminder Email”) to the Applicant’s designated election email account urging him to submit an election return.  The Reminder Email stated, inter alia, that -

“Please note that even if the candidate did not incur any election expenses or receive any election donations, an Election Return should still be submitted.”

23.  According to the Applicant, he is not proficient with the latest technology, and relies heavily on his assistants in daily tasks involving computers and other technology devices, including receiving and sending emails.  He relied on Ms Man to manage his election email account.  Although he did check the email account from time to time, since he received numerous emails every day, he might not identify each email sent to his account.  The Applicant says that that he inadvertently failed to take timely notice of the Reminder Email and “was therefore not aware of its contents”.

(vi)  The failure to lodge an election return within time

24.  Under s 37(1D) of the Ordinance, the Applicant was required to lodge an election return on or before 23 October 2021, being 30 days after the date of notification of the result of the Election in the Gazette, unless the time for lodging an election return is extended by the court under s 40.  There is no dispute that the Applicant failed to lodge an election return on or before 23 October 2021.

25.  On 28 October 2021, the Applicant received a call from the Office and “realized” that he had missed the deadline to lodge the Election Return.  The Applicant says that he immediately sought legal advice and then informed the Office that he would apply for an extension of time from the High Court to lodge the Election Return.  On the next day, he sent his draft Election Return to the Office and informed the latter that he would lodge the same upon the direction of the court.

THE APPLICATION

26.  On 4 November 2021, the Applicant issued the Originating Summons in this action seeking an order to permit him to lodge the Election Return with the CEO out of time.

27.  Section 40(1) and (2) of the Ordinance states as follows:

“(1) A candidate who is unable or has failed to lodge an election return as required by section 37 before the end of the permitted period can apply to the Court for an order allowing the candidate to lodge with the appropriate authority an election return within such further period as the Court specifies.

(2) On the hearing of an application made under subsection (1), the Court may 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.”

28.  It is clear from s 40(2) that before the Court may exercise its discretion to extend the time for a candidate to lodge an election return, the candidate must show that the inability or failure to do so within the prescribed period (i) was attributable to one or more of the statutory grounds mentioned in that subsection, and (ii) was not due to the candidate’s bad faith.  It is not necessary to consider the question of “bad faith” in the present case, because there was no suggestion of bad faith on the part of the Applicant in his failure to lodge the Election Return within the prescribed period.

29.  The Applicant relied on the “inadvertence” limb in s 40(2)(c) in support of his application.

THE DECISION

30.  The Judge determined the Applicant’s application for an extension of time to lodge the Election Return on paper with the agreement of the parties.  For this purpose, he had before him the Applicant’s Affirmation and Ms Man’s Affirmation both filed on 5 November 2021, as well as written submissions from the Applicant and Secretary for Justice, who maintained a neutral stance in relation to the application.

31.  On 7 March 2022, the Judge gave the Decision dismissing the Applicant’s application.  In the Decision, the Judge made the following material findings:

(1)  The Applicant made a conscious decision not to lodge an election return which was deliberate and not accidental, and such decision did not fit into the “inadvertence” limb (§§74-80 of the Decision).

(2)  The Applicant’s failure to lodge the Election Return within the statutory period was not the result of any “reasonable cause” (§§81-86 of the Decision).

(3)  Even if the Applicant’s failure to lodge the Election Return was attributable to “inadvertence” under s 40(2)(c) or other “reasonable cause” under s 40(2)(d) and there was no bad faith on his part, he was not a candidate whom should be granted the indulgence under s 40 as a matter of discretion, which the Court should exercise in a manner consistent with the integrity of the election legislation (§§86-89 of the Decision).

32.  In respect of the Judge’s finding that the Applicant’s case did not fit into the “inadvertence” limb, the Judge reasoned as follows:

“[74] The Applicant seeks to rely on the ‘inadvertence’ limb in section 40(2)(c). As set out above, the Applicant says that he had read three documents in the Candidate Folder which supposedly formed the basis of his mistaken belief – or ‘knowledge and impression’, to use his own words. He also says that he watched the Briefing Session which did not change his knowledge and impression (or correct his mistaken belief).

[75] It might be summarised that, in his affirmation, the Applicant says that those texts to which he had paid attention simply did not ‘shed light’ on his situation and/or he ‘did not find it helpful’. On that basis, it seems to me the obvious question which arises is why the Applicant would have believed that his situation does not require the lodging of an Election Return, when there was no guidance he thought applicable to him. To use his own words, the Applicant is saying that he actually had no ‘knowledge’ as to whether or not he should file an Election Return, and the logical “impression” was really simply one of uncertainty.

[76] Indeed, nowhere in his affirmation does he point to any document or text which would suggest that a candidate does not have to lodge a return when no expenses were incurred or no advertisement was made. Nor does he explicitly state that he held such a belief (although it was submitted on his behalf by Mr Cheung that must be the logical point intended).

[77] It is also unsatisfactory – and some might think it is rather convenient – that the Applicant says (1) he paid attention to those documents which did not make it clear that he should file an Election Return, but (2) he ‘overlooked’ or failed to pay attention to a rather greater number of documents which made it absolutely plain that he should file an Election Return.

[78] But, even taking his evidence at face value, the Applicant must be taken to have made at least one deliberate decision, and probably two deliberate decisions. Firstly, despite not being able to find guidance specifically dealing with his own situation, the Applicant must have chosen not to make any enquiries to resolve the uncertainty (despite the provision of the Hotline number and the invitation to call it to make enquiries). Secondly, despite the remaining uncertainty, the Applicant must have chosen not to make and file an Election Return. Indeed, there must have been some sort of consideration or thinking linking the ‘impression’ given by his observation that there were no guidelines for his situation and the conclusion that he did not have to lodge the Election Return.

[79] Such a conscious decision not to lodge the Election Return is akin to the decision not to fill in a donation item in the return in Re Liu Sing Lee [2003] 3 HKLRD 162, where the applicant had considered the matter and eventually came to the view that that donation item did not have to be declared since it was given free of charge.

[80] Therefore, on the compelling inference to be drawn from his own evidence, the Applicant’s decision not to file and Election Return was deliberate and not accidental, and does not fit into the ‘inadvertence’ limb.”

33.  In respect of the Judge’s finding that the Applicant’s failure to lodge the Election Return within the statutory period was not the result of any “reasonable cause”, the Judge reasoned as follows:

“[81] I have considered whether the application should be allowed on the ‘reasonable excuse’ limb in section 40(2)(d). I take into account that he had no prior election-related experience, and that he had taken immediate action to remedy the situation once he was told of his error. I also note that he only had Ms Man to help him and received no professional assistance.

[82] However, after careful consideration, I have come to the view that the Applicant’s failure was not the result of a ‘reasonable cause’. First, the Applicant himself accepts the failure to read certain materials properly was ‘inexcusable’. I agree, and if it was inexcusable it is difficult to think that it could have been reasonable.

[83] Further, the Applicant’s failure to lodge the Election Return really flowed simply from his failure to exercise the level of diligence required of a candidate to familiarize himself with the relevant election rules. When he had no prior election-related experience, and where he chose administrative assistance from a volunteer also with no prior experience or relevant expertise, the Applicant can hardly complain that he was given too much information to assist him. Even if some of the voluminous material was dense, and some repetitive, it was provided to him to cater for the possibility that he would not immediately understand the extent of the obligations which he assumed when he stood as a candidate.

[84] Further, both in several individual places, and taken as a whole, that material made perfectly clear that the Applicant was required to file an Election Return. I agree with Mr Fung that the filing or not of an Election Return was hardly an intricate legal question. It is indeed difficult to understand how the Applicant, or Ms Man, could have overlooked or misunderstood the obligation to lodge an Election Return even if no election expenses were incurred …

[85] At bottom, the thinking process shown in the Applicant’s evidence suggests that he had placed very little priority with his legal duties as a candidate.  Being an uncontested candidate could not justify taking such a ‘relaxed approach’ as he apparently took towards his candidacy.  The impression left is of someone who, on mere perusal of only some documents, had form the viewed that he need not file an Election Return and so in effect ignored those parts of even later correspondence which contained clear reminders that he should file an Election Return, even if he had not incurred any expense or received any donation.  That cavalier approach may not amount to bad faith, but it was unreasonable and unjustified.”

34.  Lastly, the Judge’s reasons for declining to exercise the court’s discretion to extend the time for the Applicant to lodge the Election Return, even if his default was the result of “inadvertence” or had other “reasonable cause” and there was no bad faith, were as follows:

“[86] The position that the Applicant was running for is an important one in Hong Kong. The Applicant was a candidate for a place on the small body which will choose the highest official in Hong Kong. A person who decides to run for such a position must be prepared properly to shoulder the duties imposed on him by our election system. The duty to lodge an Election Return is an integral part of that system. That duty runs through the materials, which in terms and effect state simply that if you are a candidate, then you must file an Election Return.

[87] I fully accept that the failure in this case could have made no practical difference to the result or conduct of the particular subsector of the Election, but the Applicant clearly did not place sufficient priority on his candidacy and has failed to exercise anywhere near sufficient care towards the election materials given to him.

[88] To put it another way, on the evidence, this is not a case where the Applicant has tried to understand what the legal requirement was, but failed to meet it correctly.  This is a case where the Applicant simply turned a blind eye or acted recklessly as to the legal requirements.”

THE APPEAL

35.  The Applicant was not satisfied with the Decision, and lodged a Notice of Appeal dated 1 April 2022 against the Decision.  The Notice of Appeal raises 3 grounds of appeal:

(1)  Ground 1 (misapprehension of facts and evidence) - the Applicant contends that the Judge ought to have found that he had taken reasonable steps to familiarize himself with the election rules, and was not reckless and had not turned a blind eye to the legal requirements to file an election return (§§1 and 2 of the Notice of Appeal).

(2)  Ground 2 (error of law/misapplication of the law to the facts): the Applicant contends that the Judge erred in law in concluding that his circumstances did not fall within the “inadvertence” limb under s 40(2)(c), and ought to have held that he could properly rely on that limb (§§3 and 4 of the Notice of Appeal).

(3)  Ground 3 (plainly wrong exercise of discretion): the Judge’s exercise of discretion in refusing the application was plainly wrong taking into account the 6 factors enumerated under §5 of the Notice of Appeal.

DISCUSSION

(a)  The meaning of “inadvertence” in s 40(2)(c) of the Ordinance

36.  On behalf of the Applicant, Mr Daniel Fung, SC accepts the applicable principles as summarised by the Judge in Section F of the Decision.  The following principles are relevant to the present case:

(1)  The word “inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith, (§59(6) of the Decision).

(2)  Where a deliberate decision has been made to exclude an item from an election return, reliance cannot be laid on “inadvertence”.  But the applicant may rely on the “any reasonable cause” exception (§59(8) of the Decision).

(3)  Ignorance of the law is no defence.  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 (§59(9) of the Decision).

(4)  There is a distinction between (i) a case where an applicant simply turned a blind eye or acted recklessly as to the legal requirements, and (ii) a case where an applicant had tried to understand what the legal requirements were, but failed to meet them correctly (§59(11) of the Decision).

(5)  “Inadvertence” and “absence of bad faith” are two separate elements.  The mere exclusion of one (bad faith) cannot automatically mean the satisfaction of the other (inadvertence).  Since an applicant has to show both inadvertence and the absence of bad faith, there must be room on the facts of any particular case for an applicant to demonstrate the absence of bad faith yet fail to show inadvertence (§66 of the Decision).

(6)  Since (i) ignorance of the law is no defence, and it is incumbent upon a candidate to familiarise himself with the election rules, and (ii) the Court’s power under section 40 is to be exercised in a manner consistent with the integrity of the election legislation, there must be some limit on the degree of carelessness and negligence as would satisfy the threshold, even in the absence of bad faith (§68 of the Decision).

(7)  A candidate should not expect the Court to grant relief simply because he says he was careless or negligent.  Granting relief too readily will encourage a tendency for people not to take the law seriously enough.  This ties in with the distinction between (i) a case where an applicant simply turned a blind eye or acted recklessly as to the legal requirements, and (ii) a case where an applicant had tried to understand what the legal requirements were, but failed to meet them correctly (§69 of the Decision).

(8)  Depending on the particular facts of any case – 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 (§70 of the Decision).

37.  At the forefront of his oral submissions, Mr Fung says that there is a clear dichotomy between “oversight”/“bona fide mistake” and “deliberate flouting” of the law, and this distinction should be drawn when considering whether a candidate’s conduct falls within the “inadvertence” limb in s 40(2)(c) of the Ordinance.  In support of this argument, Mr Fung relies on the judgment to Queeny Au-Yeung J in Re Lee Ka Chiu John (Election Advertisements) [2022] 4 HKLRD 330, and the judgment of Lam J (as he then was) in Re Tsang Wai Ming, HCMP 3463/2003 (unreported, 15 April 2004), and contrasted them with Re Yiu Chun Fat, HCMP 1482/2007 (unreported, 5 November 2007, Lam J, as he then was), and Re Tso Hon Kwong [2011] 1 HKLRD 992 (Carlye Chu J, as she then was), where relief was refused.

38.  Re Lee Ka Chiu John concerned the situation where there were late submissions of 3 consent of support forms in breach of the Guidelines on Election-related Activities in respect of the Chief Executive Election.  The forms, which related to 3 persons whose names and photos were featured in 3 election advertisements, were published 2 to 3 working days after the deadline prescribed by the Electoral Affairs Commission.  Queeny Au-Yeung J found on the facts of that case that the non-compliance was purely out of inadvertence and there was no indication that a blind eye had been turned to the relevant legal requirements, and no bad faith was involved.  Accordingly, Her Ladyship granted relief under s 88 of the Electoral Procedure (Chief Executive Election) Regulation, Cap 541J.  In her judgment, Queeny Au-Yeung J drew attention to the fact that the terms “inadvertence”, “any reasonable cause” and “not due to bad faith” appeared in comparable legislation, namely, s 106 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, Cap 541D (“the EACR”), and s 40 of the Ordinance, which she regarded as being in pari materia.  Her Ladyship summarized the principles for grant of relief as distilled from the authorities on the EACR/Ordinance at §20 of her judgment, as follows:

“(1) Ignorance of the law is no defence. It is incumbent upon a candidate to familiarize himself with the election rules, and to ascertain the deadline for compliance. Compliance with the election rules is important. The solemnity and integrity of the election system and regime depends on it. Man Fu Wan v Secretary for Justice [2020] 4 HKLRD 153, §15, Keith Yeung J.

(2) Inadvertence suggests a lack of deliberateness. It means negligence or carelessness where the circumstances show an absence of bad faith. The evidence should show some reasonable excuse for the inadvertence and 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 applicant. Negligence in this context does not have the precise meaning given to the word in the context of the tort of negligence: Re Ho David, [2022] 2 HKLRD 76, §§65 and 66, Coleman J; Re Fan Gary Kwok Wai (unrep., HCMP 1080/2013, 20 January 2014), §§7 to 8, Au-Yeung J.

(3) Identifying the inadvertence and lack of bad faith are two separate elements. The mere exclusion of one (bad faith) cannot automatically mean the satisfaction of the other (inadvertence). If an applicant has to show both inadvertence and the absence of bad faith, there must be room on the facts of any particular case for an applicant to demonstrate the absence of bad faith yet fail to show inadvertence. See Re Ho David, §§59(6) and 66.

(4) Where a deliberate decision has been made to exclude an item from an election return, the applicant may not avail himself of the ‘inadvertence’ exception. It would be a conscious decision, albeit erroneous. However, the applicant may rely on the ‘any reasonable cause’ exception. See Re Fan Gary Kwok Wai, §§7 to 8.

(5) ‘Any reasonable cause’ must be other than (that is, in addition to) those causes identified in the other limbs of the section (such as inadvertence, accidental miscalculation). An act may be performed either reasonably or unreasonably, even if performed in good faith: Re Ho David, §67.

(6)  The burden is on the applicant to prove that the pre-conditions for grant of relief are established on the evidence and that there was no bad faith on his part: Re Fan Gary Kwok Wai, §9.”

The above principles were partly based on, and are entirely consistent with, the principles set out by the Judge in the Decision.

39.  Re Tsang Wai Ming concerned a situation which is similar to the present case.  There, a candidate, who was elected by default in an election of a village representative and did not incur any expenses or receive any donation, failed to lodge an election return.  He mistakenly thought, after reading the election guidelines given by the Returning Officer casually and generally, that one must have a receipt before one could file an election return.  Lam J took into account that (i) the applicant had read the election guidelines, (ii) the obligation about filing an election return in the case of no expenditure was not set out in a very clear directive (although if one were to read the relevant materials carefully going through them word by word, there could not be any mistake), (iii) the case before him was the first time that the Ordinance was made applicable to an election for village representative, and (iv) the applicant did not receive education beyond Form 3 level, and found that the applicant’s default in that case fell within the situation of inadvertence.  Lam J’s judgment in Re Tsang Wai Ming is a decision on the particular facts of that case, and cannot be read as establishing any general proposition that an oversight, or bona fide mistake, of the requirement to lodge an election return is always to be treated as a case of “inadvertence”.

40.  Mr Fung also relies on the view expressed by Lam J in Re Tsang Wai Ming that if one were to look at the Ordinance itself, the requirement of filing a return in the case of nil expenses was not clear because s 37, being the section which required a candidate to lodge an election return, did not explicitly refer to the position of a candidate who had not incurred any election expenses.  In our view, whilst s 37 is silent on whether a candidate who has incurred no election expenses and received no election donation is required to lodge an election return, it certainly lends no support to any suggestion a candidate in such circumstances is not required to lodge an election return.  On the other hand, the lodging of election returns is plainly a fundamental step designed to maintain the integrity of an election.  Unless a return is lodged, the authorities would not even know whether a candidate has incurred any expenses or received any donation, these being crucial information for any investigation of potential election irregularities.  In any event, whatever may be said about the clarity, or lack of clarity, of s 37 of the Ordinance, it is not the Applicant’s case that he had read or considered that section which led him to a mistaken view or belief that he did not have to lodge the Election Return because he had not incurred any expenses or received any donation.  Furthermore, the requirement to lodge an election return in his circumstances was stated in unequivocal terms in the written materials sent by the Office to the Applicant both before and after the Election.  In our view, the suggested lack of clarity in s 37 is a red herring in the present case.

41.  It is not necessary to analyse in any great detail the judgments in Re Yiu Chun Fat and Re Tso Hon Kwong. They are examples where the Court refused to exercise its discretion to extend time for a candidate to lodge an election return based on the particular facts and circumstances of those cases.  In the former case, relief was refused because the court considered that the applicant put the obligation of filing the election return as an item of “very low priority”, or “did not care about it enough” (§9).  The case was decided as a matter of discretion, and not on whether the applicant’s failure was attributable to inadvertence (§12).  In the latter case, the court was prepared to accept that the applicant’s failure was due to his illness (§12), but declined to exercise the discretion to grant relief in view of the applicant’s inordinate delay (2 years and 9 months) in making the application (§14), and the real cause for the delay lay in the applicant’s failure to attach the necessary degree of significance to his obligation to lodge an election return (§18).

42.  Overall, while a deliberate flouting of the legal requirement to lodge an election return would obviously not qualify as “inadvertence” for the purpose of s 40(2)(c) of the Ordinance, we do not consider that the question of whether the statutory criterion of “inadvertence” is satisfied should be answered simply by reference to whether the default was attributable to an oversight or bona fide mistake.  As correctly pointed out by the Judge, an act or omission may be so unreasonably careless or negligent as not to fall within “inadvertence”. As will be seen below, for the purpose of disposing of the present appeal, it is not necessary to further explore the limits of the “inadvertence” limb beyond the established principles mentioned above.

(b)  Ground 1 (misapprehension of facts and evidence)

43.  The Applicant raises two arguments in support of this ground of appeal that the Judge misapprehended the facts and evidence in the case.

44.  First, the Applicant contends that the Judge ought to have found that he had taken reasonable steps to familiarize himself with the election rules, arguing that:

(1)  The Respondent does not challenge that he had read (i) the blank Election Return and (ii) the Guide, and watched (iii) the video of the Briefing Session and the accompanying Q&A session.

(2)  There was no clear statement in the materials referred to in (1) above explicitly stating that an uncontested candidate who had not made any election advertisement and had not incurred any election expenses or accepted any election donations is required to file an election return.

(3)  The Applicant’s categorization of his behaviour in overlooking the materials in the Candidate Folder (ie the Action Checklist and the ICAC Booklet) as being “inexcusable” was and could only be properly regarded as a candid acceptance of his inadvertence, and ought to have been so construed in light of the facts found by the Judge that -

(a)  the materials in the Candidate Folder were “voluminous”, and “dense and some[what] repetitive”; and

(b)  before the election, he had not run in any election and had no experience in assisting any election or supporting any candidates[4].

45.  Second, the Applicant contends that the Judge ought to have found that he was not reckless and had not turned a blind eye to the legal requirements to file an election return, arguing that:

(1)  He had gone through the materials set out in §44(1) above, and considered that none of them contained any statement to the effect that an uncontested candidate who had not incurred any election expenses or accepted any election donations was required to file an election return.

(2)  There was no or no sufficient evidence of any uncertainty in the Applicant’s mind that there might be a need for him to file an election return.

(3)  It follows that there was no basis to support the Judge’s finding that the Applicant had made “two deliberate decisions” -

(a)  not to resolve any uncertainty as to whether he had to lodge an election return; and

(b)  not to lodge an election return despite the uncertainty[5].

46.  In respect of the Applicant’s first contention that he had taken reasonable steps to familiarize himself with the election rules, the Judge was plainly aware of the basic factual matters mentioned in §44(1)-(3) above relied upon by the Applicant, but found, nevertheless, that the Applicant’s failure to lodge an election return really flowed from his failure to exercise the level of diligence required of a candidate to familiarize himself with the relevant election rules[6].  In coming to this view, the Judge took into account the following matters:

(1)  The Applicant admitted that it was “inexcusable” of him to have overlooked the relevant parts of the Action Checklist and the ICAC Booklet which made it clear that he was required to file an election return even though he had incurred no expenses and received no donation.

(2)  The materials provided to the Applicant made it perfectly clear that he was required to file an election return in his situation.

(3)  The filing or not of an election return was hardly an intricate legal question, and it was difficult to understand how the Applicant or Ms Man could have overlooked or misunderstood the obligation to lodge an election return even if no election expenses were incurred.  The matters which the Judge took into account in coming to these views are fully set out under §84 of the Judgment, including -

(a)  There is no material which says that a candidate who has incurred no expenses or made no advertisement does not have to lodge an election return.

(b)  The Applicant has failed to explain why he paid attention to Q&A 5 in the FAQ (which he says failed to give any relevant guidance), but not Q&A 15 (which emphasises the importance of filing an election return, regardless of whether a candidate has incurred election expenses or accepted election donations).

(c)  The reasonable action required of a candidate who thinks that there are no guidelines applicable to his specific circumstances, or is unsure of his position, is to make enquiries with the Office.  The Applicant did not.

(d)  Whilst the Candidate Folder is voluminous, both the Action Checklist and ICAC Booklet are highlighted in the Notes to Candidates as important documents which a candidate should read carefully.

(e)  Both the Action Checklist and the ICAC Booklet make plain the need to file an election return in the Applicant’s circumstances.

(f)  It was not reasonable for the Applicant not to read the Reminder Letter, which was addressed to him at his office, which specified steps to be taken after the election, and which made plain the need to file an election return in the Applicant’s circumstances.

(g)  It is difficult to see how it was reasonable for Ms Man to have overlooked or ignored the clear terms of the Reminder Letter.

(h)  It is also difficult to see how it was reasonable for the Applicant to have relied upon Ms Man to do the necessary administration of matters of the required steps set out in a letter to which he himself paid no attention.

(i)  The Reminder Email was sent specifically to the email address identified by the Applicant for the purposes of the Election.  Again, it was not reasonable for the Applicant not to have checked for relevant emails (even after he was elected uncontested), or for Ms Man to have failed to check if she was operating or managing the account.

(j)  If the Applicant had paid sufficient attention to the materials, he would have noticed the importance attached to the Election Return.  He would not have casually reached the “impression” or conclusion that he did not have to lodge it.

(k)  Whilst the Applicant may entrust some of his election related work to Ms Man, as the candidate, he remained the one who was personally responsible to ensure that he met his legal obligations.  It is inexcusable that he missed the clear instructions relating to a person in his position, as set out before the deadline expired in both the Reminder Letter and the Reminder Email, when both items reached his election office address and email address given by him for election use.

(l)  Anyhow, it was a very simple and straightforward matter for the Applicant to fill in the Election Return as a nil return.  Even if the Applicant entertained some doubt, which he chose not to resolve by making the invited enquiries, he ought to have erred on the side of caution or carefulness by completing and filing the Election Return.

47.  The Judge concluded, on the basis of the aforesaid matters, that the Applicant had placed very little priority with his legal duties as a candidate and adopted a relaxed or cavalier approach to the legal duties (including the duty to lodge an election return within the statutory period) once he discovered that his candidacy was uncontested.

48.  In our view, it is clear that the Applicant failed to exercise the level of diligence reasonably required of a candidate to familiarize himself with the relevant election rules, and the judge was well entitled to conclude that the Applicant’s approach to the matter was unreasonable and unjustified.  The Applicant’s contention in §1 of the Notice of Appeal that the Judge ought to have found that he had taken reasonable steps to familiarize himself with the election rules is, in substance, nothing more than a disagreement with the Judge’s finding of fact.  We do not consider that there is any, or any sufficient, ground for the Court of Appeal to interfere with the Judge’s decision on the issue of whether the Applicant had taken reasonable steps to familiarize himself with the election rules.

49.  In respect of the Applicant’s second contention that the Judge ought to have found that he was not reckless and had not turned a blind eye to the legal requirements to file an election return, he raises two main points.

50.  First, the Applicant says that none of the materials referred to in §44(1) above (ie documents which he says he had read) contains any statement to the effect that an uncontested candidate who has not incurred any election expenses or accepted any election donations is required to lodge an election return.  This point does not assist the Applicant, because there were other materials (namely, the Action Checklist, the ICAC Booklet, and Q&A 15 in the FAQ) provided to the Applicant which clearly state that a candidate is required to lodge an election return in such circumstances. Moreover, prior to the statutory deadline, the Applicant had been reminded twice by the Office to lodge an election return even if no election expenses had been incurred and no election donation had been received.  The Applicant can hardly complain if he did not read, or read carefully, those materials.  It is not a good excuse for his failure to lodge an election return that he had no election experience and no professional assistance, or that the materials provided to him were voluminous.  It is equally not a good excuse that he relied on Ms Man to check his email account, or her confirmation that all the requisite paperwork had been prepared.  The Applicant was running for an important public office.  The fact that he had no election experience and no professional assistance should mean that he ought to exercise even greater care in reading the materials provided to him by the Office to ensure that he fully complied with his legal duties in relation to the Election, including the duty to lodge an election return.

51.  Second, the Applicant complains about the Judge’s finding that he had made two deliberate decisions, one not to resolve any uncertainty as to whether he had to lodge an election return, and two not to lodge an election return despite the uncertainty.  On behalf of the Applicant, Mr Fung argues that the largely unchallenged evidence before the Judge was that he lay under a mistaken belief that, since he had made no advertisement, incurred no expenses and received no donations, he did not have to lodge an election return (“the Mistaken Belief”), and given such Mistaken Belief, there could be no room for any contradictory finding by the Judge that there was “uncertainty” in his mind as to whether he was required to lodge an election return, and thus there could be no basis from which the Judge could draw any inference that he made the above two deliberate decisions[7].

52.  In support of this argument, Mr Fung refers to §§11, 49 and 57 of the Decision and says that the Judge found, or accepted, that the Applicant was labouring under the Mistaken Belief, and thus it was contradictory for the Judge to then find that the Applicant deliberately failed to file an election return.  From reading the Decision as a whole, it seems clear that the Judge had reservation on whether the Applicant was in fact labouring under any positive (mistaken) belief that he did not have to lodge an election return in the circumstances of his case.  The Judge expressly stated more than once in the Decision that the Applicant did not say in his evidence that he believed that if no election expenses were incurred or donations received by a candidate, that candidate need not submit an election return, while pointing out that Ms Man did depose positively that she held such “genuine but mistaken belief” (see §§34, 57 and 76 of the Decision).  Thus, the Judge said that “the Applicant perhaps means that he was under the mistaken belief … (§11 of the Decision), and “it seems that, since both the Applicant and Ms Man were under the mistaken impression or belief …” (§49 of the Decision).

53.  The Judge’s analysis at §78 of the Decision that the Applicant must be taken to have made two deliberate decisions should, in our view, be looked at in this light.  Further, the Judge started off at §78 of the Decision by stating that the analysis which followed was “taking [the Applicant’s] evidence at face value”.  The Judge pointed out that since the Applicant’s position was he did not find any guidance which specifically dealt with his own situation, logically he must have chosen (or decided) (i) not to make any enquiries to resolve the uncertainty of whether he needed to lodge an election return, and (ii) not to file an election return.  We do not consider the Judge to have made any finding which was contradictory to the premise that the Applicant was labouring under the Mistaken Belief.

54.  In any event, even if the Applicant’s complaint about inconsistency of findings has merit, this complaint does not affect the Judge’s findings that the Applicant had placed “very little priority” with his legal duties as a candidate, took a cavalier approach which was “unreasonable and unjustified” (the Applicant himself admitted he took a “more relaxed approach” in reading through the materials provided to him by the Office since finding out that he was an uncontested candidate in the Election)[8], and turned “a blind eye or acted recklessly as to the legal requirements”.  These findings are sufficient to take the Applicant’s case out of the “inadvertence” limb in s 40(2)(c) of the Ordinance[9], and also support the Judge’s decision not to exercise his discretion to grant relief to the Applicant (as to which see §§58-60 below) [10].

55.  In all, Ground 1 of the appeal is rejected.

(c)  Ground 2 (error of law/misapplication of the law to the facts)

56.  Under this ground, the Applicant contends that the Judge erred in law in concluding that his circumstances do not fall within the “inadvertence” limb under s 40(2)(c) of the Ordinance, and ought to have held that he could properly rely on that limb since the evidence reveals that -

(1)  he had taken reasonable steps to familiarise himself with the election rules; and

(2)  he was not reckless and had not turned a blind eye to the legal requirements to lodge an election return[11].

57.  This ground of appeal does not add anything of substance to Ground (1).  We have already dealt with, and rejected, the contentions mentioned in §§56(1) and (2) above.  It follows that Ground (2) should likewise be rejected.

(d)  Ground 3 (plainly wrong exercise of discretion)

58.  This ground of appeal can be disposed of briefly.  The Applicant does not dispute that, even if he could bring himself within the “inadvertence” limb in s 40(2)(c) of the Ordinance and there was no bad faith on his part, it was still a matter of discretion for the Judge to decide whether to grant relief under that section.

59.  The Applicant relies on the following matters in support of his argument that the discretion ought to be exercised in his favour:

(1)  The matters set out under Grounds 1 and 2 above.

(2)  He was an uncontested candidate and had incurred no expenses nor received any donations in relation to the Election.

(3)  He had never stood previously as a candidate in any election nor did he have any experience in assisting in election or supporting any candidates.

(4)  He did not have the assistance of legal professionals to explain the contents of the Candidate Folder to him, and did not have any organisation assistance for understanding the legal obligations of an election candidate.

(5)  When Ms Man presented documents to be submitted to the Office for him to sign, he specifically asked her to confirm that those were all the paper work required, and Ms Man responded in the affirmative.

(6)  Upon realising the need to file an election return, he took out the application forthwith without delay and submitted a draft Election Return to the Office for record pending the court’s determination of the application.

60.  The Judge was aware of all those matters.  What, if any, weight ought to be given to them in the court’s exercise of discretion under s 40 of the Ordinance was a matter for the Judge.  The Judge took into account the importance of the public office that the Applicant was running for (being an office in a small body which chose the highest official in Hong Kong), the fact that lodging an election return was an integral part of the election system, the duty to do so was clearly stated in the materials provided to the Applicant, and the Applicant clearly did not place sufficient priority on his candidacy and failed to exercise anywhere near sufficient care towards the election materials given to him.  The Judge came to the view that the Applicant was not someone whom should be granted indulgence under s 40.  In our view, there is no proper basis on which the Court of Appeal can interfere with the Judge’s exercise of discretion in the present case.

(e)  Principle against doubtful penalisation

61.  In his oral submissions, Mr Fung also relies on the principle against doubtful penalization as explained in the following passages in Bennion on Statutory Interpretation (8^th ed), at Section 26.4:

“It is a principle of legal policy that a person should not be penalized except under clear law. This principle forms part of the context against which legislation is enacted and, when interpreting legislation, a court should take it into account.

…

Application to relieving measures

Where an enactment provides for relief from detriment in certain circumstances, the presumption against doubtful penalization may point towards construing the exception liberally (ie in favour of the subject). If it is doubtful whether an exception to a penalty applies, it is doubtful whether the penalty itself applies…

Strength of presumption

…

The weight to be given to the presumption will necessarily depend upon the circumstances of the particular case.  One factor that is likely to influence the weight given to the presumption is the severity of the detriment.  If the detriment is minor, the presumption may be expected to carry little weight.  If the detriment is severe, the principle will be correspondingly powerful.”

62.  We have already dealt with the suggestion that there is a lack of clarity in s 37 of the Ordinance on whether a candidate who, like the Applicant, has incurred no expenses and received no donations, is required to lodge an election return.  In any event, there is no issue of statutory interpretation raised as to whether the Applicant was required to do so on the facts of the present case.  The Applicant accepts that he was required, but failed, to lodge an election return, and asks the Court to make an order to permit him to do so out of time.  Insofar as “inadvertence” is concerned, the issue is not about the interpretation of that word, but whether the Judge has made inconsistent findings as contended by the Applicant.  In all, we do not consider that the principle against doubtful penalization has any relevant application in this case.

DISPOSITION

63.  The Applicant’s appeal is dismissed with costs to the Respondent, to be summarily assessed if not agreed.  The above costs order is an order nisi and shall become absolute after the expiry of 14 days from the date of this judgment, unless an application is made within the 14-day period to vary the order.  In the absence of any application to vary the order nisi, the Applicant shall have leave to file and serve a statement of objections (limited to 2 pages) to the Respondent’s Statement of Costs for Summary Assessment dated 20 February 2023 within 14 days from the date of this judgment.  Subject to such further order as may be given, the Court shall assess the Respondent’s costs summarily without further reference to the parties.