MAN FU WAN v. SECRETARY FOR JUSTICE

HCMP 199/2020

[2020] HKCFI 1722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 199 OF 2020

______________

______________

______________

____________________

DECISION

____________________

The Application

1.  By Originating Summons dated 9 March 2020 and amended on 2 July 2020 (the “Amended OS”), the Applicant seeks:

(a)  pursuant to s 40(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“Cap 554”), an Order allowing the Applicant to lodge the “Return and Declaration of the Election Expenses and Election Donation” dated 13 January 2020[1] (the “Election Return”) with the Chief Electoral Officer notwithstanding the expiry of the permitted period for doing so under s 37 of Cap 554; and

(b)  pursuant to s 40(2) of Cap 554, an Order enabling the Applicant to lodge a corrective Election Return as per Annex I of the Amended OS within 7 days of the Order to be made.

Agreement to paper disposal

2.  By joint letter dated 26 June 2020 of Messrs Christine M Koo & Ip (for the Applicant) and the Secretary for Justice, parties informed this court that the Respondent adopts a neutral stance on the application, and invited this court to deal with the application on the papers. 

3.  On 30 June 2020, I directed that the application be dealt with on the papers, and gave directions on the filing of submissions.

4.  I have now read the submissions since filed of Mr Stony Chan, counsel for the Applicant of 6 July 2020 (“A’s Submissions”), and those of Ms Ally Shum for the Respondent (“R’s Submissions”).  I have decided to grant the orders sought.  Below are my reasons.

Background

5.  The Applicant is the elected candidate of the San Tin Constituency (the “San Tin Constituency”) in the 2019 District Council Election.  The election result was published on 29 November 2019. According to s 37(1F) of Cap 554, the Applicant must have ensured that an election return was lodged by 29 December 2019.  He failed to do so.  He only did so on 13 January 2020.  He was late by 14 days.  The Applicant also says that in the course of his preparation for the present application, he found out that he had mistakenly stated at Section H of the Election Return that the amount of “Election donations of $1,000 or less” which he had received was HK$300, when the amount should have been nil.  He seeks to correct that.

The grounds relied upon

6.  In relation to his applications for extension of time to file the Election Return and for leave to lodge a corrective Election Return, the Applicant relies on the ground of “inadvertence” under respectively s 40(2)(c) and s 40(4)(b) of Cap 554.

7.  In respect of both, the Applicant says that there has been no bad faith.

The applicable law

8.  A candidate at an election must lodge with the appropriate authority an election return (s 37(1) of Cap 554).

9.  For an election to membership of any District Council, and in so far as it is relevant to the present application, the candidate must ensure that the election return is lodged before the expiry of the period of 30 days after the result of the election is notified in the Gazette (ss 37(1F) and (1G) of Cap 554).

10.  A candidate who fails to lodge an election return as required by s 37 of Cap 554 can apply to the Court under s 40(1) of Cap 554 for an order allowing him to lodge an election return within such further period as the Court specifies. 

11.  S 40(2) governs what an applicant has to establish in an application under s 40(1), that:

“ 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.”

12.  S 40(3) allows a candidate to apply to the Court for an order enabling him to correct any error or false statement in an election return.

13.  S 40(4) governs what an applicant has to establish in an application under s 40(3), that:

“ On the hearing of an application made under subsection (3), the Court may make the order sought, but only if it is satisfied that the error or false statement was due to—

(a) misconduct of an agent or employee of the applicant; or

(b) inadvertence or an accidental miscalculation by the applicant or any other person; or

(c) any reasonable cause,

and was not due to the applicant’s bad faith.”

14.  In relation to the meaning of “inadvertence” and the incidence of onus of proof, Au‑Yeung J summarized the relevant considerations in Re Fan Gary Kwok Wai & Others, unrep, HCMP 1080/2013 at §§7‑9, that:

“ 7. ‘Inadvertence’ 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: Re Brook Bernacchi & Ors [1957] HKLR 185, at 186. See also Wong Yee Him v Secretary for Justice, HCMP 611/2000, 10 March 2000, Deputy Judge Li.

8. 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 under section 40(4)(b) of the Ordinance. It would be a conscious decision, albeit erroneous. However, the applicant may rely on the ‘any reasonable cause’ exception under section 40(4)(c) of the Ordinance: Re Liu Sing Lee [2003] 3 HKLRD 162, at paras 26‑27.

9. 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 Liu Sing Lee [2003] 3 HKLRD 162, at para 29.”

15.  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 lodging the election return: Martin Charles V.M. Lister v Secretary for Justice, unrep, HCMP 202/2017, per Au‑Yeung J at §§24 and 27.  Compliance with the election rules is important.  The solemnity and integrity of the election system and regime depends on it. 

16.  I point out in the context of the present application that the word used in s 37(1F) of Cap 554 is “ensure”. An applicant cannot expect the court to grant relief simply because he says he has forgotten: Re Yiu Chun Fat, unrep, HCMP 1482/2007, 5 November 2007, per Lam J (as he then was) at §10, and Martin Charles V.M. Lister, per Au‑Yeung J at §7.

17.  As is evident by the word “may” in both ss 40(2) and 40(4), the Court’s power to grant relief is discretionary.  It is important that the discretion should be exercised in a manner which is consistent with the integrity of our election legislation.  If relief were to be granted too readily, the election regulatory regime would no longer be taken seriously: Re Yiu Chun Fat, at §§10 to 12.

The evidence filed on behalf of the Respondent

18.  I outline first of all the evidence filed on behalf of the Respondent.

19.  Ms Poon Hiu Wai (“Ms Poon”) is the Electoral Officer (Election 2) Nomination 3 of the Registration and Electoral Office (“REO”).  She has made one affirmation.  It is dated 17 April 2020.  Therein:

(a)  Ms Poon states that the REO takes a neutral stance on the Applicant’s application;

(b)  She sets out the steps which the REO has taken to remind the Applicant of the lodging of an election return: by sending to the Applicant a registered mail of 27 November 2019 (the “Registered Mail Reminder”) and 3 emails of 2, 20 and 28 December 2019 (the “3 Email Reminders”).  She also states that on 10 January 2020, she had a telephone conversation with a person who identified herself as Ms Yung (who according to the evidence filed by the Applicant is the Applicant’s secretary).  During that conversation, Ms Yung told Ms Poon that the Applicant was in the Mainland.  Ms Poon told Ms Yung to inform the Applicant as soon as possible that the Applicant had not submitted his election return by the statutory deadline of 29 December 2019.

20.  Ms Poon’s evidence is not challenged.

The evidence filed on behalf of the Applicant

21.  The Applicant relies on 5 affirmations:

(a)  the 1^st and 2^nd affirmations of the Applicant dated respectively 6 March and 21 May 2020;

(b)  the 1^st affirmation of Man Ka Koy (“Kelvin Man”) of 6 March 2020.  Kelvin Man was the Applicant’s Election Manager;

(c)  the affirmation of Man Yick Yeung (“MYY”) of 21 May 2020; MYY is the Applicant’s son; and

(d)  the affirmation of Yung Kam Lan (“Ms Yung”) of 21 May 2020.  Ms Yung is the Applicant’s secretary.

The Application for extension of time — The evidence

22.  Prior to the 2019 District Council Election, the Applicant had stood for other elections.  Kelvin Man won the by‑election held in July 2019 and was the District Councillor for the San Tin Constituency for slightly more than 4 months.

23.  Given the above background, both the Applicant and Kelvin Man readily accept that upon the Applicant’s election, the Applicant had the duty to file the Election Return within the statutory deadline, and that they were aware of that.

24.  The Applicant accepts that he has no excuse for having filed the Election Return late.  He places before this Court reasons for the delay.  He craves leave to extend on the ground of “inadvertence”.

25.  The Applicant states that he is in his 60’s.  He is not proficient with technology.  He was assisted in the election by his election manager Kelvin Man, who handled all administrative matters including the keeping of all invoices and receipts necessary for the preparation of the election return.  The Applicant also relied on Kelvin Man to prepare the election return.

26.  On 30 November 2019, 6 days after his successful election, the Applicant asked Kelvin Man to prepare the election return.  To prove that, he produced a screenshot of the relevant voice message he sent to Kelvin Man on that day via WhatsApp.  The contents of that voice message have been transcribed and produced.

27.  Kelvin Man says that he prepared the Election Return in early December 2019.

28.  Kelvin Man was the founder of Hong Kong Rope Skipping Academy (“HKRSA”).  He was its convenor at the material time.  He says that there is another rope skipping association in Hong Kong, which is Hong Kong Rope Skipping Federation (“HKRSF”).  He says that there has been some rivalry between the 2 bodies.

29.  Kelvin Man says that since the latter part of 2019, there had been some controversies as to whether HKRSA or HKRSF should represent Hong Kong in the upcoming International Jump Rope Union 2020 World Championships.  Both bodies strived to.  But only one could.  No middle ground could be worked out.

30.  On about 11 December 2019, Kelvin Man understood that he had to attend Seoul on or about 16 December 2019 to make urgent representations to the relevant organization on the controversies. He booked air tickets, leaving on 16 December, and returning on 20 December.

31.  By a WhatsApp message sent at 1:26 am on 16 December 2019, Kelvin Man informed the Applicant that he would go and submit the Election Return for the Applicant in the coming morning, as he would be out of town between 16 and 20 of December.  A screenshot of that message has been produced.  Kelvin Man says that he intended to submit the Election Return and made all necessary declarations in the morning of 16 December 2019 before setting off to the airport for Seoul. 

32.  The Applicant acknowledged that message at 9:34 am on 16 December 2019.  Both the Applicant and Kelvin Man in their respective affirmations say that by the time the Applicant did that, Kelvin Man was already on his way to the airport.  Kelvin Man called the Applicant and told him that it was too late for the matter to be handled that morning.  He suggested that he could do that when he came back from Seoul.

33.  Kelvin Man said that when he was in Seoul, he still remembered that the Election Return had to be lodged by the deadline.  He however mistakenly thought that the deadline was sometime in January.  Also, upon his return, he was too pre‑occupied with dealing with the rope‑skipping controversies, and forgot to lodge the Election Return or to bring the matter up with the Applicant.

34.  On his part, the Applicant says that after Kelvin Man’s return, he (the Applicant) became pre‑occupied with other matters, like “thanking voters in the Constituency for their support and gathering their thoughts about the betterment of the Constituency”.  It did not occur to him that the deadline was 29 December 2019.  He thought Kelvin Man would bring the Election Return to him for his signature before the deadline.

35.  On 10 January 2020, which was a Friday, Ms Yung received a call from Ms Poon, who told her to tell the Applicant that he had not lodged his election return.

36.  Ms Yung informed the Applicant of the call. The Applicant immediately contacted Kelvin Man.  They submitted the Election Return on the next working day, ie the Monday on 13 January 2020.

37.  In respect of the Registered Mail Reminder, neither the Applicant nor Ms Yung knows why they have not seen it.  Ms Yung suggests that that it is possible that someone might have acknowledged receipt of the Registered Mail Reminder without giving it to her or the Applicant.  In respect of the 3 Email Reminders, Ms Yung confirms that she did not open them when received, and only did so on 13 January 2020.  She accepts that it was her omission.

38.  In respect of those reminders, the Applicant accepts and acknowledges that regardless of why he has not received them, the fact that he has not read them is not an excuse for him not having lodged the Election Return within time.

The Application for extension of time — Discussion

39.  As has been summarized by Mr Chan at §27(4) of A’s Submissions, “the matter about lodging the Election Return ‘slipped the minds’ of Kelvin Man and the Applicant due to their pre‑occupation with rope‑skipping controversies and post‑election matters respectively”.

40.  As I have discussed above, it is very important that the Election Return be lodged, and be lodged before the statutory deadline.  The integrity of the election legislation and regime depends on that.  The Applicant and Kelvin Man ought to have checked and ascertained when exactly the deadline was going to be.  They ought not to have allowed such an important matter to have “slipped their minds”.

41.  Again as I have discussed above, an applicant cannot expect the court to grant him relief merely by saying that “I have forgotten”.  He has the statutory obligation to “ensure” that the election return is lodged before the deadline — see s 37(1F) of Cap 554.  It is also no good reason for relief to be granted simply by saying that somebody else (eg the election manager) should have remembered and taken care of the matter. 

42.  I have considered the facts of this case very carefully.  In the end, I am persuaded that there is one aspect of the facts which puts the Applicant in better light that those who have simply forgotten about the matter.  On 30 November 2019, just 6 days after his successful election, the Applicant asked Kelvin Man to prepare his election return.  He has produced the relevant WhatsApp message to prove that.  According to Kelvin Man, whose evidence I have no reason not to accept, he in fact prepared the Election Return in early December.  He intended to lodge it on the morning of 16 December 2019 before he left for Seoul.  Kelvin Man’s evidence that he had in fact prepared the Election Return sometime before the deadline is to some degree also supported by the fact that he and the Applicant were able to lodge the same the very next working day after the Applicant was informed by Ms Yung of the phone call from Ms Poon.

43.  The evidence therefore suggests that both the Applicant and Kelvin Man had all the intention of lodging the Election Return before the deadline.  They did not ignore the Applicant’s duty in that regard. They had also done all that were necessary to be done towards that save the final step of actually lodging the same.  In the end, Kelvin Man allowed the matter to slip his mind.  But he was pre‑occupied with the business of HKRSA. Particulars have been provided as to how and why.  The Applicant also overlooked the matter while handling post‑election matters. Some human errors also occurred in relation to the reminders.  While ought not to have happened, the series of slip‑ups and the circumstances of the case in my view may be said to fall within the scope of “inadvertence”.    

44.  I also regard as important the fact that there had only been a relatively short delay of 14 days.

45.  On the facts, I accept that there has been no bad faith on the part of the Applicant and Kelvin Man.  I also take the view that there is some reasonable excuse for the inadvertence, and that the negligence is not gross in nature

46.  This is a marginal case.  But on its facts, and for reasons set out above, I am persuaded that this is an appropriate case for this Court to exercise its discretion in favour of granting relief.

47.  Lest it be misunderstood, I emphasize again that it is very important for candidates at any election to comply with their statutory duties most seriously.  I grant relief on this occasion only on the special facts of the case.

48.  I make an order in terms of §1 of the Amended OS, allowing the Applicant to lodge the Election Return on 13 January 2020 notwithstanding the expiry of the permitted period for doing so under s 37 of Cap 554.

The corrective election return

49.  In the Election Return, at Section H thereof, in respect of the amount of “Election donations of $1,000 or less”, the Applicant stated the amount as being HK$300.  The corresponding entry under the column of “Description of Election Donation” is “老人家接送”.  The Applicant now says that it should have been nil.  He seeks to correct that.

50.  What led to the mistake, according to the Applicant, are as follows:

(a)  Mr Fung Ying Cheung Stanley (“Mr Fung”) is the Applicant’s long‑term friend;

(b)  Prior to the Election, during one meeting and in the presence of Kelvin Man, Mr Fung volunteered to use his own two vehicles (and to arrange extra vehicles if necessary) to take elderly villagers to and from the polling station;

(c)  On the day of the Election, Kelvin Man saw a light blue private car with several passengers inside.  He also saw the Applicant’s election pamphlets on the windshield.  He thought that it was an extra car arranged by Mr Fung.  He noted down the licence plate number, which was TW6318;

(d)  When preparing the Election Return, Kelvin Man declared the service of that vehicle as a donation in the value of HK$300;

(e)  On 21 January 2020, the Applicant telephoned Mr Fung to thank him for his support.  During the telephone conversation, Mr Fung told the Applicant that he had not on the day of the Election make arrangement for any extra vehicle.  Nor did he know the number TW6318;

(f)  Subsequent inquiries show that the car which bears the registration TW6318 is actually grey in colour.  Its actual owner (not known to the Applicant) has further informed the Applicant that on the day of the Election, TW6318 was not driven to anywhere near the Constituency;

(g)  The Applicant is now of the view that Kelvin Man must have misread the registration number concerned, and that the person driving the vehicle was not his supporter.

51.  I have no reason not to accept the evidence as outlined above.

52.  I note that this is a case of mistaken over‑statement of donation (as opposed to under‑statement).

53.  I accept the Applicant’s and Kelvin Man’s evidence that there is no bad faith involved.

54.  The inclusion of the item “老人家接送” was a deliberate decision.  It may not be regarded as an “inadvertence”.  But as has been fairly put by Ms Shum at §13 of R’s Submissions, the Applicant may however rely on the “reasonable cause” limb under s 40(4)(c) of Cap 554.

55.  The error is the result of an error.  It was an overstatement as opposed to understatement of donations.  There is no suggestion that there could have been any motive behind it.  The Applicant seeks leave for its correction soon after its detection.  I am satisfied that the Applicant has made out a case for relief under the “reasonable cause” limb.

56.  I make the Order in terms of §2 of the Amended OS and grant the Applicant leave to lodge a corrective Election Return within 7 days from the date hereof.

Disposition

57.  For the reasons set out above, I grant an Order in terms of §§1[2] and 2 of the Amended OS.

Costs

58.  The Respondent seeks costs.  I accept Ms Shum’s submissions that the present application has only become necessary because of the Applicant’s and Kelvin Man’s inadvertence and errors.  They are seeking the Court’s indulgence.  In the circumstances, I order the Applicant to pay costs of the application which I summarily assess at HK$19,528 (as per the Statement of Costs attached to R’s Submissions), to be paid to the Respondent within 28 days from the date hereof.