RE LAU HON YING

HCMP835/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.835 OF 2004

---------------------

----------------------

---------------------------------------------------

REASONS FOR DECISION

-----------------------------------------------------

1. This is an application for relief under section 31(2) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap.554. To obtain relief, the applicant has to satisfy me that the mistakes were made inadvertently and not in bad faith . Also, that it is just that he should be given relief.

2. The applicant had made two mistakes. First, a misdescription of his occupation. In his election message, his occupation was stated to be an administrator whereas he was retired. The applicant's explanation given in his supplementary affirmation is that he worked as a secretary to a District Councillor and helped to run his office, and it is said that the description of his occupation as an administrator, though incorrect, is an understandable mistake. Mr Tavares, who appears on behalf of, among others, the Director of Public Prosecutions, submitted that the applicant could not be said to have any occupation at all.

3. The other mistake related to his claim that he was instrumental in securing the resurfacing of Yung Yung Road. That is untrue. He merely supported the resurfacing. The applicant's explanation for the mistake is that he was inexperienced and that he was pre-occupied with other matters in his election campaign and that he neglected to check his election members' work before the materials were used. The applicant was not elected.

4. Information relating to the candidates' attributes and community service are given to solicit voters' support. It is obvious that every effort should be taken to ensure that such information is correct. Elections must be clean and fair. In order to protect the integrity of our elections, I must remind myself that section 31 is enacted for the relief of genuine and reasonable mistake. Whether relief should be granted is sometimes a difficult question. It must be approached with common sense after taking into account all the circumstances of the particular case.

5. I have not found this an easy application, but after giving the matter careful consideration I have come to the conclusion that although this is a border-line case, I should grant relief.

6. In all the circumstances, I am satisfied that the mistakes were inadvertent and that there was no bad faith. Moreover, it is just that the relief should be granted.

7. I, accordingly, granted relief in terms of the amended originating motion.