HUNG CHI KIT v. LEE YUE SHUN AND ANOTHER

HCAL 3852/2019

[2021] HKCFI 2537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3852 OF 2019

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JUDGMENT

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INTRODUCTION

1.  In this election petition, Hung Chi Kit (“the Petitioner”) seeks to challenge the election of Lee Yue Shun (“the 1^st Respondent”) as District Councillor in the Eastern District Council Election for the Kam Ping Constituency (“the Election”) held on 24 November 2019 (“the Polling Day”), on the ground that material irregularities occurred in relation to the Election, or the polling or counting of votes in the Election under s 49(1)(a)(iv) of the District Council Ordinance, Cap 547.

BASIC FACTS

(i)      The candidates, their agents and the Presiding Officer/Deputy Presiding Officer

2.  The Petitioner and the 1^st Respondent were the only two candidates in the Election.

3.  Pursuant to the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation, Cap 541F (“the Regulation”), the Petitioner appointed:

(1)  Tsoi Ka Tseung (“Tsoi”) and Guo Xiongbin (“Guo”) as his polling agents; and

(2)  Tse Hiu Ngai (“Tse”) and Hung Kin Kwan (“Hung”) as his counting agents.

4.  The 1^st Respondent’s polling agents and counting agents were Law Chun Him Frederick (“Law”) and Sophie Yu (“Yu”). Pausing here, I should mention that Mr Lewis Law (counsel for the Petitioner) has raised some queries about the validity of their appointment on the ground that (i) no notice of their appointment was recorded by the Registration and Electoral Office (“REO”), and (ii) any notices of their appointment which might have been submitted to a polling staff at the Polling Station on the Polling Day would not be valid because they were not submitted by the 1^st Respondent or his election agent (Chan Chung Yin) personally to the Presiding Officer.  In my view, nothing turns on the formal validity of the appointment of Law and Yu as the 1^st Respondent’s polling/counting agents in this case because it is clear, on the evidence, that they were recognized and accepted as the 1^st Respondent’s polling/counting agents and acted as such on the Polling Day.

5.  Cheung Wai Kei (“Cheung”) was the Presiding Officer at the polling station for the Election (“the Polling Station”), while Ho Wai Yan (“Ho”) was one of the Deputy Presiding Officers at the Polling Station.  Cheung was an education officer of Shau Kei Wan East Government Secondary School, while Ho was an architect by profession. Both were appointed to their respective positions at the Polling Station pursuant to s 37 of the Regulation.  Prior to the Election, Cheung had acted as a presiding officer at an ordinary polling station in the 2012 Legislative Council Election, 2016 Legislative Council General Election, and 2018 Legislative Council By-Election.

(ii)     The Polling/Counting Station

6.  HKPA Jockey Club North Point Island Place Integrated Service Centre for Children and Youth, situated on 2/F, Island Place, 53 Tanner Road, North Point, Hong Kong, was used as the Polling Station for the Election on the Polling Day.

7.  The Polling Station was open to registered voters to cast their votes in the Election between 7:30 am and 10:30 pm on the Polling Day. There were a total of 7 issuing desks in the Polling Station which issued ballot papers to the voters in the Election.  After the close of the poll at 10:30 pm, the Polling Station was converted into a counting station for the Election (“the Counting Station”).

8.  On the Polling Day, the Presiding Officer (Cheung) was, initially, assisted by 2 Deputy Presiding Officers, 4 Assisting Presiding Officers, 1 Assisting Presiding Officer (Statistics), 26 Polling Officers, 2 Polling Officers (Statistics), and 4 Polling Assistants, making up a total of 40 polling staff (including the Presiding Officer), at the Polling Station.  However, due to the high voter turnout, upon Cheung’s request, 4 additional polling staff (1 Assisting Presiding Officer and 3 Polling Officers) were deployed at the Polling Station between around 5:50 pm and 7:00 pm on the Polling Day.

9.  In addition, 6 police officers were deployed and stationed at the Polling/Counting Station from 6:30 am on 24 November 2019 to 7:00 am on 25 November 2019 to keep order in and around the Polling/Counting Station.  There were also some other helpers, including caretakers of the venue management, security guards and members of the Civil Aid Service, deployed at the Polling/Counting Station on 24 and 25 November 2019.

10.  According to the Petitioner, a registered voter, in order to go to the Polling Station to vote on the Polling Day, had to enter the ground floor/street level entrance to Island Place near the junction between Kam Hong Street and Tanner Road.  After passing through the entrance, two lifts (“the Lifts”), each with a capacity of around 8-9 persons, provided access from the ground floor to the Polling Station on the 2/F of the building. A closed-circuit television (“CCTV”) was installed in each of the Lifts. Pausing here, I should mention that although the Polling Station is referred to as being located on the 2/F of Island Place, it is in fact situated just one floor above the ground level, while the ground/street level of Island Place is sometimes referred to in the papers as the 1/F of the building.  To avoid confusion, the ground/street level of Island Place will be referred to as the “1/F”, while the floor on which the Polling Station was located will be referred to as the “2/F”.

11.  Above the 2/F of Island Place are two levels of car-parking areas, being the 3/F and 4/F of the building.

12.  The Lifts run from the 1/F to 3/F of Island Place.  In addition, there is a staircase (“the Staircase”) running from the 1/F to 4/F of Island Place.

13.  It is the Petitioner’s case that on the Polling Day:

(1)  The polling staff would regulate the numbers of voters inside the Polling Station.  Whenever the polling staff were of the view that the Polling Station was overcrowded, the intended voters would be stopped from taking the Lifts from the 1/F to 2/F, and they would be told to queue in or outside the lobby area on the 1/F for the Lifts to go to the Polling Station on the 2/F.

(2)  As a crowd control measure, the polling staff would direct voters to use the Lift instead of the Staircase to go from the 1/F to the Polling Station on the 2/F of Island Place.  On the other hand, those leaving the Polling Station after voting had the option of either taking the Lifts or using the Staircase to go back to the 1/F.

14.  There is a dispute of fact on how the voters gained access to the Polling Station to vote on the Polling Day, particularly during the last hour of voting from 9:30 pm to 10:30 pm.  I shall come back to this matter later in this Judgment.

(iii)    The voter turnout

15.  The Kam Ping Constituency had a total of 9,305 registered voters in the Election.  9,304 registered voters were assigned to the Polling Station, while 1 registered voter in custody was assigned to the dedicated polling station at Stanley Prison on the Polling Day.

16.  According to the information published by Cheung at the Polling Station:

(1)  From the beginning of the poll at 7:30 am to the end of the poll at 10:30 on the Polling Day, the total voter turnout at the Polling Station was 6,179.

(2)  During the last hour of the poll from 9:30 pm to 10:30 pm, the total voter turnout at the Polling Station was 455.

(iv)    The election of the 1^st Respondent

17.  The poll closed at 10:30 pm.  Afterwards, the Polling Station was closed to the public for its conversion into the Counting Station.  The two candidates’ polling agents left the Polling Station at around 10:38 pm in circumstances which I shall further discuss below.  After the departure of the polling agents and during the time that the Polling Station was closed to the public, Cheung, with the assistance of his polling staff, checked and recorded the number of unissued, unused and spoilt ballot papers, and worked out or estimated, by reference to the total number of ballot papers received by him from REO, the number of ballot papers in the two ballot boxes used at the Polling Station in the Election. Cheung also signed a “Ballot Paper Account” (Form P(18)), which stated that:

(1)  Cheung received a total of 9,600 ballot papers from REO;

(2)  he retained a total of 2,991 ballot papers for various purposes;

(3)  the 7 issuing desks in the Polling Station retained a total of 421 unissued ballot papers at the end of the day;

(4)  there were a total of 9 spoilt ballot papers;

(5)  there was no unused ballot paper, and

(6)  the 7 issuing desks issued a total of 6,179 ballot papers to the electors on the Polling Day (based on information contained in Form P(12) kept by the issuing desks).

The figures tallied in the sense that the total number of ballot papers received by Cheung (9,600) equalled to the sum total of the ballot papers under (2), (3), (4), (5) and (6).  In the Form P(18), it was also stated that the number of ballot papers estimated to be in the two ballot boxes was 6,179.

18.  The Form P(18) was divided in an upper and a lower portion.  The upper portion, which contained the information mentioned above, was signed by Cheung against the date of “24 Nov 2019” and the time of “11:00”.  Pausing here, I should mention that although at one stage, Cheung said that it was possible that he signed the upper portion of the Form P(18) not at 11:00 pm but at a later time, he subsequently clarified and maintained that he signed the document at around 11:00 pm before the counting of the votes began.  I accept Cheung’s evidence that the work in relation to the accounting of the ballot papers was done during the transition of the Polling Station into the Counting Station, and find that Cheung signed the Form P(18) at around 11:00 pm as stated on that document.

19.  The Polling Station was re-opened as the Counting Station at around 11:30 pm.  The counting of votes was completed at about 5:54 am on 25 November 2019.  The total number of ballot papers in the two ballot boxes were found to be 6,179.  Together with the 1 vote cast at the dedicated polling station at Stanley Prison, a total of 6,180 votes were cast on the Polling Day in the Election.  40 ballot papers were determined to be invalid.  Out of the remaining 6,140 valid votes, the Petitioner received 3,027 votes while the 1^st Respondent received 3,113 votes.  In other words, the Petitioner lost by 86 votes.

20.  After completion of the counting process, Cheung signed, inter alia, a “Notice of Result of Election (Form F1)” and a “Counting Record Summary (Form F4)” both dated 25 November 2019 and faxed them to the Statistical Information Centre (“SIC”) of REO at about 6:13 am.  He also signed the lower portion of Form P(18) to verify that the number of ballot papers estimated to be in the ballot boxes tallied with the actual number of ballot papers recorded in the counting process.  At 6:30 am on 25 November 2019, the 2^nd Respondent sent to Cheung by fax a “Notice of Result of Election” dated 25 November 2019 declaring that the 1^st Respondent was elected for the Kam Ping Constituency in the Election.  The Notice of Result of Election was displayed on the notice board in the Counting Station at around the same time.

PETITIONER’S CASE

21.  In the Amended Election Petition (“the Petition”), the Petitioner makes the following allegations:

“[11] The Polling Station was closed at or around 10:32 p.m. on the Polling Day. The Presiding Officer …, in the presence of Tsoi, Guo and the 1^st Respondent’s polling agents, locked and sealed the second Ballot Box used at the Polling Station pursuant to s.63(2) of the Regulation. However, the Presiding Officer did not advise the polling agents how many unissued, unused and spoilt ballet papers were in his possession at the same time. The Presiding Officer also did not make up into separate sealed packets unissued, unused and spoilt ballot papers, and the marked copies of the final register, in the presence of the polling agents.

[12] At around 10:38 p.m., the Presiding Officer (and/or the polling officers at the Polling Station) directed all polling agents of both the Petitioner and the 1^st Respondent to leave the Polling Station, so that the Polling Station, which was also designated as a counting station, could be closed and reopened as a counting station for the counting of votes.

[13] At around 11:10 p.m., the Petitioner, Tsoi and Guo attempted to return to the Polling Station but to no avail, as the Presiding Officer did not allow their access to the Polling Station; the Petitioner only knew about the entry into the Polling Station of his two counting agents at around 11:00 pm later. Supporters of the 1^st Respondent complained to the Presiding Officer as to inter alia his earlier direction for polling agents to leave the Polling Station, and that the Ballot Boxes had been left out of sight of any election, polling and/or counting agents of both the Petitioner and the 1^st Respondent.

[14] At or around 11:12 p.m., the Presiding Officer admitted that he and/or the polling officers of the Polling Station directed the polling agents of the Petitioner and the 1^st Respondent to leave the Polling Station before it was being converted into a Counting Station …

[15] At or around 11:45 p.m., the Presiding Officer allowed ten representatives each for the Petitioner and the 1^st Respondent respectively (including two counting agents for each candidate) to enter the Polling Station (then converted into a counting station, the ‘Counting Station’).  Thereafter, representatives for both the Petitioner and the 1^st Respondent entered the Counting Station and the counting of votes commenced.”

22.  There are substantial disputes of facts in respect of the aforesaid allegations made by the Petitioner.  I shall refer to the relevant evidence of the parties later when I consider the Petitioner’s complaints in this case.

23.  In §16 of the Petition, the Petitioner contends that there were material irregularities in relation to (i) the Election, (ii) the polling, and/or (iii) the counting of the votes at the Election, as follows:

“16.1 In contravention of s.63(1A) of the Regulation, the Presiding Officer and/or the polling officers at the Polling Station directed the polling agents of the Petitioner and the 1^st Respondent to leave the Polling Station at around 10:38 p.m. while it was closed for the preparation of the counting of votes;

16.2 In contravention of §4.55 of the ‘Guidelines on Election-related Activities in respect of the District Council Election’, the Presiding Officer and/or the polling officers at the Polling Station failed to inform the polling agents of the Petitioner and the 1^st Respondent of the number of unissued, unused and spoilt ballet papers in the Presiding Officer’s possession;

16.3 In contravention of s.63(2)(e) of the Regulation, the Presiding Officer and/or the polling officers at the Polling Station failed to make up into separate sealed packets unissued, unused, spoilt ballet papers, and the marked copies of the final register, in the presence of the polling agents of the Petitioner and the 1^st Respondent;

16.4 In contravention of s.63(1A) of the Regulation, the Presiding Officer and/or the polling officers at the Polling/Counting Station denied access of the Petitioner and his polling agents to the Polling/Counting Station after the close of the poll for around 67 minutes (10:38 p.m. to 11:45 p.m.);

16.5 In the alternative to paragraph 16.4 above, the Presiding Officer and/or the polling officers at the Polling/Counting Station at least denied access of the Petitioner and his polling agents to the Polling/Counting Station between 11:10 p.m. to 11:45 p.m., also in contravention of s.63(1A) of the Regulation;

16.6 In contravention of s.63(2)(a) of the Regulation, the Presiding Officer, the polling/counting officers at the Polling/Counting Station failed to make any or any proper arrangements to ensure that the two Ballot Boxes used at the Polling Station remained at all times visible to persons who were entitled to stay in the Polling/Counting Station, including the Petitioner, the 1^st Respondent and their respective election, polling and counting agents, after the close of the poll and before the two Ballot Boxes were opened for the counting of the votes;

16.7 The aforesaid irregularities had a material impact on the Election by reason that the voter turnout for 9:30 p.m. to 10:30 p.m. (455 persons and 4.89%) published by the Presiding Office at the Polling Station at around 11:45 p.m. was (i) published after the Two Ballot Boxes used at the Polling Station were out of sight of the polling agents of the Petitioner for around 67 minutes or out of sight of any agent of the Petitioner for at least 22 minutes before the entry into the Polling/Counting Station of the Petitioner’s counting agents at around 11:00 pm, (ii) inconsistent with the video footages of the CCTV of the Lifts; (iii) markedly higher than the voter turnout rate of that hour across different constituencies in Hong Kong and in the Eastern District; and

16.8 Overall speaking, the Presiding Officer, the polling officers and/or the counting officers at the Polling/Counting Station failed to make proper arrangements to ensure that the Election was conducted fairly, justly and openly, in breach of §1.19 of the ‘Guidelines on Election-related Activities in respect of the District Council Election’”.

24.  The Petitioner further contends that the outcome of the Election might have been affected by the abovementioned material irregularities, as the Petitioner was defeated by 86 votes only.

25.  In the course of the trial, the Petitioner also raised some further allegations on a number of other matters, eg various periods on the Polling Day when there was allegedly no one specifically attending to the ballot boxes, including times when Cheung was away from his desk to deal with matters happening outside the Polling Station on the 1/F or 2/F of Island Place[1], the validity of the appointment of Law and Yu as the 1^st Respondent’s polling/counting agents[2], whether Cheung personally counter-checked all the unissued ballot papers kept by the issuing desks during the process of reconciling or accounting for the ballot papers received from REO[3], etc.  These allegations are not pleaded in the Petition.  The Petitioner has also not applied to further amend the Petition.  Accordingly, they will not be considered in this Judgment, unless they are relevant to the issues properly raised in the Petition.

§16.1 OF PETITION: ALLEGATION THAT POLLING AGENTS WERE DIRECTED TO LEAVE POLLING STATION WHILE IT WAS CLOSED FOR PREPARATION FOR COUNTING OF VOTES

26.  Section 63(1A) of the Regulation provides as follows:

“(1) As soon as practicable after the close of the poll at a polling station which is also designated as a counting station, the Presiding Officer must display a notice in a prominent place outside the polling station stating that the poll has been closed and that it will be opened when it is ready for use for the counting of votes.

(1A) A candidate, and an election agent, a counting agent and a polling agent of such candidate may stay in a polling station referred to in subsection (1) while it is closed for the preparation for the counting of votes.”

27.  It is not in dispute that under this section, the Petitioner’s polling agents were entitled to remain in the Polling Station after the close of the poll at 10:30 pm on the Polling Day during the time that work was done to convert the Polling Station into the Counting Station.

28.  In support of the allegation that at around 10:38 pm on the Polling Day, the Presiding Officer directed the polling agents of the Petitioner and the 1^st Respondent to leave the Polling Station, the Petitioner relies principally on the evidence of Tsoi, his polling agent.  According to Tsoi, the Polling Station was formally closed at around 10:32 pm on the Polling Day.  Afterwards, Cheung sealed the 2^nd ballot box used for voting in the Election in the presence of, inter alia, Tsoi and Law (the 1^st Respondent’s polling agent).  At about 10:38 pm, Cheung asked all polling agents to leave the Polling Station so that the polling staff could convert the Polling Station to become the Counting Station.  Although Tsoi had doubts in his mind on whether that arrangement was appropriate, he did not raise any objection at that time and left the Polling Station as directed by Cheung.  He did so because the matter happened all out of a sudden, and he saw that the 1^st Respondent’s polling agent(s) also left the Polling Station in accordance with Cheung’s direction.

29.  The other polling agent of the Petitioner (Guo), who was also present at the Polling Station at the close of the poll, has not given evidence in this case.

30.  On the other hand, Cheung’s evidence is that after the closing of the poll at 10:30 pm, he sealed the second ballot box in the presence of the polling agents of the two candidates.  After a brief moment of silence, Cheung invited the polling agents to take a rest after a long day, and suggested that they could (or might) leave the Polling Station for a drink while work was being done to convert the Polling Station into the Counting Station.  He told the polling agents that the station would be re-opened at 11:30 pm for the counting of votes.

31.  In his First Affirmation dated 17 April 2020, Cheung also said the following:

“[19] … Even though the Polling Station was closed to voters at the end of polling hours at 10:30 p.m., the premises were never locked up or in any way closed off. I was aware that agents of candidates may remain inside the premises when the Polling Station is being converted into a Counting Station, but they must have already submitted forms and be known to me as agents first before they can remain at the premises after close of polling. However, after I sealed the second Ballot Boxes at 10:30 p.m. on 24 November 2019 in front of the police officers and polling agents of both candidates (who also signed on the form attached to the seal to signify the proper sealing of the Ballot Box), the agents just left the premises of the Polling Station. No agents requested to stay within the Polling Station during the period it was closed to the public.

[20] Just before the agents left the Polling Station after the sealing of the second Ballot Box, I had told them that the Counting Station would open at around 11:30 p.m., as that was the time I estimated my polling staff and I would need to set up and get everything ready for counting to begin.  Thereafter, my polling staff and I just went about our business, where I was busy filling in all sorts of forms to report to the Statistical Information Centre (‘SIC’) of the REO, and other staff were responsible for clearing furniture and/or reorganising the notice boards to convert the premises into a Counting Station.”

32.  The other witness who gave relevant evidence on this issue is Law (the 1^st Respondent’s polling/counting agent).  In his Affirmation, Law said that the poll ended at about 10:30 pm.  Cheung asked the polling agents of the Petitioner and 1^st Respondent to witness the sealing of the 2^nd ballot box, and Law signed on the seal of the ballot box afterwards.  Law then learnt (from Cheung) that the Polling Station was about to be converted to become the Counting Station.  He then left the Polling Station and stayed on the 1/F of Island Place to take a rest.  In his oral evidence, Law also said that although he could not exactly recall the words used by Cheung, he understood Cheung to have said that he and others could (or might) leave the Polling Station.  He also testified that the other polling agents (including Tsoi) indicated they would leave the Polling Station.

33.  The Petitioner and 1^st Respondent also gave hearsay evidence on this issue.  I consider that the court ought to concentrate on the direct evidence of Tsoi, Cheung and Law, and not the hearsay evidence of the Petitioner and 1^st Respondent.

34.  There is a conflict of evidence given by Cheung and Tsoi to be resolved.  Tsoi said that Cheung required all polling agents to leave the Polling Station (要求所有監票人離開投票站)[4].  This is also how the matter is pleaded in the Petition (“the Presiding Officer … directed all polling agents to leave the Polling Station”)[5].  On the other hand, Cheung’s evidence is that he only suggested to the polling agents that they might leave the Polling Station to take a rest or go for a drink.  There was no element of compulsion, and the polling agents decided to leave the Polling Station voluntarily.

35.  I accept Cheung’s evidence as to what he said to the polling agents referred to in §§30-31 above, and that he never expressly told the polling agents that they were not allowed to remain, or must leave, the Polling Station while work was being done to convert the Polling Station into the Counting Station, even though I believe he would have preferred them to leave so that the polling staff could get on with their work of converting the Polling Station into the Counting Station by themselves.  In coming to this conclusion, I bear in mind that Cheung’s evidence on what he actually said to the polling agents only came out in the witness box but not in his Affirmations.  His oral testimony is, however, consistent with his written evidence contained in his Affirmations, and is not inherently improbable.  I do not accept Tsoi’s evidence that Cheung told the polling agents that the site had to be cleared (清場).  In Mr Lewis Law’s closing submissions, he puts the Petitioner’s case as follows:

“After the close of the poll and the sealing of the 2^nd ballot box at around 10:38 pm, and before the PS’s transition to Counting Station ... PO, at least, ‘suggested’ the candidates’ representatives (including P’s PA Tsoi) to leave. What was exactly said and the effect of it are matters in dispute.”[6] [emphasis original]

The way that Mr Lewis Law puts the Petitioner’s case is, I believe, a recognition that Cheung did not expressly require or direct, or might not have expressly required or directed, the polling agents to leave the Polling Station.

36.  The question for consideration is what was the reasonable, objective, meaning or effect of Cheung’s words, considered in their proper context.  Mr Lewis Law argues that “[o]rdinary citizens have to comply with the orders/directions from those vested with statutory power first, even though they have doubt on the validity of the exercise of that power, when one is talking about orders/directions given in a face-to-face context”[7].  This is not, however, a case where the polling agents were ignorant of their rights:

(1)  According to Tsoi, he had years of experience in relation to District Council election matters (本人多年前已經開始參與東區北角一帶的區議會選舉工作) [8].

(2)  Mr Lewis Law also says that “for any election campaign it is inherently probable an election team would meet multiple times to brief/discuss various items of information.  In any event, these witnesses’ personal knowledge about the rights of the candidates/agents to remain in the PS/CS [Polling Station/Counting Station] is not significant …”[9].

(3)  In his affirmation, Tsoi explained that although he had doubts on whether Cheung’s suggestion was appropriate, he did not raise any issue or objection with Cheung at that time (當時我心裏已經懷疑這安排是否恰當 … 我未有馬上提出質疑就與郭雄斌離開了投票站) [10].

(4)  In his oral evidence, Tsoi also said that he knew he could remain in the Polling Station, but decided to leave because he wanted to double-check the matter with the Petitioner.

37.  It is, in my view, significant that none of the polling agents (including Tsoi, Guo and Law) expressed any reluctance to leave the Polling Station, or made any request to Cheung that he wished to remain in the Polling Station while the Polling Station was being converted to become the Counting Station.  Had they done so, it is, I consider, highly unlikely that Cheung would have insisted on their leaving the Polling Station, even though (as earlier mentioned) I believe that the Cheung would have preferred them to leave.  That was why he suggested the polling agents to take a rest or go for a drink.  There is some suggestion that Cheung might have forgotten about the right of the polling agents to stay in the Polling Station while it was being converted to become the Counting Station, and was only reminded of it by a polling staff later.  However, had the issue been raised by the polling agents at the time, it is inconceivable that the right of the polling agents to remain in the Polling Station would not have been confirmed or clarified there and then.

38.  I accept that there could be a degree of ambiguity as to meaning or effect of Cheung’s words, and the polling agents (including Tsoi and Law) might have understood Cheung to mean that they should leave the Polling Station.  This understanding was then relayed by Tsoi and Law to the election teams of the Petitioner and the 1^st Respondent, including their supporters, which led to the subsequent arguments[11] between a group of persons, including one whom Mr Lewis Law referred to as the “white clothing man”, and Cheung outside the entrance to Island Place occurring sometime between 11:00 pm and 11:45 pm on 24 November 2019, in the course of which the white clothing man  alleged that he (Cheung) had “driven out” the election agents (你話畀佢聽唔好阻住你做嘢, 然後趕佢哋出嚟嘅呢).  As for the suggestion that Cheung had made an admission during the course of the arguments that he had directed the polling agents to leave the Polling Station before it was being converted into the Counting Station[12], I do not consider that one should place much weight on what was said by Cheung on the spur of the moment.  At that time, Cheung was being confronted by a group of hostile persons whom Mr Lewis Law said were supporters or team members of the 1^st Respondent.  Cheung became defensive when it was alleged that he had earlier driven the polling agents out of the Polling Station, and said that based on his experience, people should not be allowed to remain while a polling station was being converted into a counting station (以我嘅經驗就係我哋轉身點票站嘅時候呢應該就唔畀…其他人喺度嘅).  Anyhow, the important issue for consideration is whether, at about 10:38 pm on 24 November 2019, Cheung “directed” all the polling agents to leave the Polling Station.

39.  On the totality of the evidence before me, I find as a fact that Cheung never directed or required the polling agents (including Tsoi and Guo) to leave the Polling Station at about 10:38 pm on 24 November 2019 as alleged by the Petitioner.  I accept Cheung’s evidence that he merely told the polling agents that they could leave the Polling Station and take a rest or go for a drink after a long day.  The polling agents could have requested to remain in the Polling Station, but they decided to leave the Polling Station voluntarily for their own reasons.  I do not accept Mr Lewis Law’s submission that Cheung was under a positive duty to inform the polling agents of their rights under s 63(1A) of the Regulation to remain in the Polling Station, or to be engaged in the subsequent process under s 63(2) of the Regulation.  There was no unfairness in the situation.  The polling agents knew, or ought to have known, their rights under the Regulations.  The polling agents of both candidates left the Polling Station at the same time.  Cheung and his polling staff were neutral parties and had no apparent axe to grind. It was ultimately a matter for the polling agents to decide whether they wished to stay in the Polling Station during its transition into the Counting Station.  The Petitioner’s allegation that Cheung acted in contravention of s. 63(1A) of the Regulation is rejected.

§16.2 OF PETITION: ALLEGATION THAT PRESIDING OFFICER FAILED TO INFORM POLLING AGENTS OF PETITIONER AND 1^ST RESPONDENT OF THE NUMBER OF UNISSUED, UNUSED AND SPOILT BALLET PAPERS IN HIS POSSESSION

40.  The Petitioner alleges that Cheung failed to inform the polling agents of the Petitioner and the 1^st Respondent of the number of unissued, unused and spoilt ballet papers in his possession in contravention of §4.55 of the Guidelines on Election-related Activities in respect of the District Council Election (“the Guidelines”), which states, so far as material, as follows:

“… At the close of poll, a notice will be displayed by the PRO[13] outside these polling stations to inform the public that the poll has been closed and that the station is being arranged for the counting of votes and will be open to them when such arrangements are completed. A candidate, his/her election agent, counting agent and polling agent may stay inside the polling station while it is closed for the preparation for the counting of votes. The ballot boxes will be locked and sealed by the PRO in the presence of the candidates and their agents, if they are present. The PRO will also inform them of the numbers of unissued ballot papers, spoilt ballot papers and unused ballot papers in his/her possession. All such ballot papers and the marked copies of the register will then be made up into separate sealed packets.” [emphasis added]

41.  The Petitioner’s complaint is not that his polling agents were never informed of the number of unissued, unused and spoilt ballet papers in Cheung’ possession.  Plainly, they were so informed at some point in time.  The complaint is that they should have been informed after the close of the poll and while the Polling Station was being converted into the Counting Station.  §4.55 of the Guidelines envisages that after the close of the poll and while a polling station is being prepared for the counting of votes, a candidate, his election agent, counting agent and polling agent may decide to stay inside the polling station.  In such a situation, the presiding officer should inform those person(s) remaining in the polling station of the number of unissued ballot papers, spoilt ballot papers and unused ballot papers in his possession after he has checked and ascertained the figures.  Plainly, if no candidate, election agent, counting agent or polling agent choses to stay in the polling station during the transition period, the presiding officer’s obligation to inform does not arise.  That this is so is not seriously disputed by Mr Lewis Law.  In the Petitioner’s Opening Submissions dated 19 April 2021, at §6, he said: “P would accept that if P’s polling agents left the Polling Station after the sealing of the 2^nd ballot box at around 10:38 pm out of their own volition, PO should not be liable for preventing those agents from leaving (or calling them to come back) in order for them to witness this transformation process, including the sealing of unissued etc ballot papers and the final register.” [emphasis original]

42.  Since I have found as a fact that after the close of the poll, the Petitioner’s polling agents (Tsoi and Guo) decided to leave the Polling Station voluntarily at about 10:38 pm, albeit upon Cheung’s suggestion, I do not see that Cheung failed the obligation to inform them of the number of unissued ballot papers, spoilt ballot papers and unused ballot papers in his possession under §4.55 of the Guidelines.

§16.3 OF PETITION: ALLEGATION THAT PRESIDING OFFICER AND/OR POLLING OFFICERS FAILED TO MAKE UP INTO SEALED PACKETS UNISSUED, UNUSED AND SPOILT BALLOT PAPERS, AND MARKED COPIES OF FINAL REGISTER, IN THE PRESENCE OF POLLING AGENTS

43.  Section 63(2)(e) of the Regulation states as follows:

“After complying with subsection (1), the Presiding Officer must, in the presence of the persons, if any, who are present within the polling station, take the following steps -

(e) make up into separate sealed packets -

(i) ballot papers which have not been issued;

(ii) the unused ballot papers;

(iii) the spoilt ballot papers; and

(iv) if the copy or extract of the relevant final register has been marked under section 56(3)(a) - the marked copy or extract.” [emphasis added]

44.  The Petitioner complains that Cheung failed to comply with his obligation under s 63(2)(e) of the Regulation in that he did not, in the presence of the polling agents of the Petitioner and 1^st Respondent, make up into separate sealed packets the unissued, unused and spoilt ballot papers, and the marked copies of the final register used in the process of issuing ballot papers to the voters under s 56(3)(a) of that regulation.  The Petitioner’s original complaint was that this process was not done in the presence of the polling agents (see 3(b) of the Petitioner’s Opening Submissions).  In view of the court’s finding that the Petitioner’s polling agents decided to leave the Polling Station voluntarily at around 10:38 pm, this complaint is plainly unsustainable.

45.  However, it emerged from the evidence of Cheung in the course of the trial that although the unissued ballot papers, the spoilt ballot papers[14] and the marked copies of the final register were made up into separate packets and put in an unlocked luggage box after the close of the poll and before the counting of votes began, the packets were not sealed until after the completion of the counting of votes and announcement of the result of the Election (contrary to the statement in §10 of Cheung’s Second Affirmation that he and/or his polling staff put them into “separate sealed packets before counting”).  To be fair to Cheung, it is right to mention that the focus of the issue at that time was whether he carried out the process of making up into separate sealed packets the unissued ballot papers, the spoilt ballot papers and the marked copies of the final register in the presence of the polling agents, not whether the packets were sealed at that stage.

46.  I consider that, strictly speaking, Cheung ought to have sealed the packets containing the unissued ballot papers, the spoilt ballot papers and the marked copies of the final register after he had ascertained the relevant figures and completed the Form P(18) during the time when the Polling Station was closed for the preparation of the counting of votes and before the counting of votes commenced.  To this extent, there was an irregularity.  I shall consider the materiality of this irregularity later in this judgment.

47.  I do not consider the Petitioner’s further complaint that the sealing of the packets was not done in his presence or in the presence of his agents to be valid.  The evidence of Cheung, which I accept, is that the Petitioner and his supporters left the Counting Station almost immediately after the announcement of the result of the Election, while the 1^st Respondent and his supporters were celebrating.  That being the position, the Petitioner and his agents would obviously not have witnessed the sealing of the packets.

§§16.4 AND 16.5 OF PETITION: ALLEGATION THAT PRESIDING OFFICER AND/OR POLLING/COUNTING OFFICERS DENIED PETITIONER AND HIS POLLING AGENTS ACCESS TO POLLING / COUNTING STATION AFTER CLOSE OF POLL

48.  Three different, alternative, cases of denial of access of the Petitioner and his polling agents to the Polling/Counting Station have been advanced by or on behalf of the Petitioner:

(1)  The Petitioner’s first case is raised in §16.4 of the Petition.  It is alleged that the period of denial was from 10:38 pm to 11:45 pm for a total of around 67 minutes.  This allegation is based on the premise that the polling agents were directed by Cheung to leave the Polling Station at around 10:38 pm and the Petitioner and/or his agents were not allowed back into the Polling/Counting Station until around 11:45 pm.

(2)  The Petitioner’s second case is raised in §16.5 of the Petition.  It is alleged that the period of denial was from 11:10 pm to 11:45 pm (for a total of around 35 minutes).  This allegation is based on the premise that the Petitioner, Tsoi and Guo returned to Island Place at around 11:10 pm but were not permitted to enter the Polling/Counting Station until around 11:45 pm.

(3)  The Petitioner’s third case is raised in §3(c) of the Petitioner’s Opening Submissions dated 19 April 2021, as follows -

“… According to P’s evidence filed/served after the presentation of the election petition, and as now pleaded in the Amended Election Petition …, P’s counting agents were able to enter the Polling/Counting station earlier at around 11:00 pm…, but there was a period of at least 22 minutes during which no agent of P was present in the Polling/Counting station to observe the handling of unissued etc ballot papers, the final register and the ballot boxes”.

49.  None of the three alternative cases is, in my view, sustainable:

(1)  In respect of the Petitioner’s first case -

(a)  in relation to the period from around 10:38 pm to 11:00 pm, as earlier mentioned, I find as a fact that the Petitioner’s polling agents decided to leave the Polling Station voluntarily at around 10:38 pm; and 

(b)  in relation to the period from 11:00 pm to 11:45 pm, Mr Lewis Law accepts that since the Petitioner’s counting agents (Tse and Hung) in fact entered the Polling/Counting Station at around 11:00 pm on 24 November 2019, the alleged denial of entry of the Petitioner, Tsoi and Guo into the Polling/Counting Station could no longer, per se, be material irregularities[15].

(2)  In respect of the Petitioner’s second case, it is the Petitioner and Tsoi’s evidence that the Petitioner, Tsoi and Guo returned to Island Place at about 11:10 pm[16], but were denied entry into the Polling/Counting Station until about 11:45 pm.  Hence, their denial of access to the Polling Station was for about 35 minutes from 11:10 pm to 11:45 pm.  However, it is also clear from their evidence that when they returned to Island Place at around 11:10 pm, they stood at the back of a group of persons outside the 1/F entrance.  At that time, those persons were engaged in a heated argument with Cheung and/or his polling staff concerning the allegation that the polling agents were not permitted to remain in the Polling Station while it was being converted into the Counting Station.  The Petitioner, Tsoi and Guo did not step forward, reveal their identities and request to enter the Polling/Counting Station.  The Petitioner and Tsoi argue that Cheung ought to have seen them and appreciated that they wanted to go into the Polling/Counting Station.  I do not accept this argument.  Even if Cheung had seen them standing at the back of the group of persons outside the 1/F entrance to Island Place, it does not follow that Cheung would know that they wished to go into the Polling/Counting Statin at that time being in mind that, on the Petitioner’s own case, his two counting agents were already inside the Polling/Counting Station.  The suggestion that the Petitioner and Tsoi were not then aware of the fact that Tse and Hung had already got into the Polling/Counting Station is not relevant because that was not something which Cheung could have known.  In any event, I am not prepared to accept that suggestion bearing in mind the ease with which the Petitioner and his team members could have freely communicated with each other by mobile phones, and there is no reason to believe that the key personnel of the Petitioner’s election team did not maintain regular communication in the evening of the Polling Day.  There was basically nothing much to see inside the Polling/Counting Station at that stage other than workers moving furniture around and preparing the place for the counting of votes.  On the other hand, what was happening outside the 1/F entrance to Island Place would probably be matters of greater interest to the Petitioner, Tsoi and Guo.  In all, I do not accept that they were denied access to the Polling/Counting Station by Cheung or his polling staff during the period from 11:00 pm to 11:45 pm as alleged.

(3)  Lastly, in respect of the Petitioner’s third case, Tse (the Petitioner’s counting agent) said that he and Hung (the Petitioner’s other counting agent) arrived at the Polling Station at around 11:00 pm and were able to enter the Polling Station after revealing their identities[17].  It is not in dispute that they were able to do so at around 11:00 pm[18].  It is correct that during the period from around 10:38 pm to 11:00 pm, there was no agent of the Petitioner present in the Polling/Counting station to observe the handling of unissued etc ballot papers, the final register and the ballot boxes, but that was the result of the Petitioner’s polling agents deciding voluntarily to leave the Polling Station at around 10:38 pm.

50.  In short, I reject the Petitioner’s allegation that he and/or his agents were denied access to the Polling Station between 10:38 pm to 11:45 pm.

§16.6 OF PETITION: ALLEGATION THAT PRESIDING OFFICER AND POLLING/COUNTING OFFICERS FAILED TO ENSURE THAT THE TWO BALLOT BOXES USED AT POLLING STATION REMAINED AT ALL TIMES VISIBLE TO PERSONS WHO WERE ENTITLED TO STAY IN POLLING/COUNTING STATION AFTER CLOSE OF POLL AND BEFORE THE TWO BALLOT BOXES WERE OPENED FOR COUNTING OF VOTES

51.  This complaint can be dealt with shortly.  Section 63(2)(a) of the Regulation states as follows:

“After complying with subsection (1), the Presiding Officer must, in the presence of the persons, if any, who are present within the polling station, take the following steps -

(a) place the ballot box or boxes where that Officer and other persons who are present within the polling station can see them”.

52.  The uncontradicted evidence of Cheung is that:

(1)  In respect of the 1^st ballot box, it was nearly full at around 3:00 pm on 24 November 2019 and its front slot was then sealed by him in the presence of the candidates’ agents.  After that it was placed behind the Presiding Officer’s desk and visible to any person who entered the Polling Station.  It was also not possible for anyone to access the place where the first ballot box was placed without being noticed by him or other polling staff.

(2)  In respect of the 2^nd ballot box, it was sealed at around 10:38 pm in the presence of the candidates’ agents and was then placed next to the 1^st ballot box.

(3)  During the time when the Polling Station was being converted into the Counting Station, the 1^st and 2^nd ballot boxes remained behind the Presiding Officer’s desk where Cheung and other polling staff were working on various matters.  At around 11:10 pm, the two ballot boxes were moved and placed on the counting tables in front of the “public area” and “media area” ahead of the opening of the Counting Station at around 11:30 pm.

(4)  Throughout the entire period from when the 2^nd ballot box was sealed and placed next to the 1^st ballot box up till the time when they were placed on the counting tables, the two ballot boxes were never concealed from the sight of those within the premises of the Polling/Counting Station.

53.  It is clear on the evidence that the requirement of s 63(2)(a) of the Regulation was complied with.

54.  The Petitioner’s complaint of breach of s 63(2)(a) of the Regulation under this head is based on his underlying complaint that Tsoi and Guo were directed by Cheung to leave the Polling Station at around 10:38 pm so that the two ballot boxes were ought of sight of the Petitioner or his agents between 10:38 pm and 11:00 pm.  Since I have rejected this underlying complaint of the Petitioner, it follows that the complaint of breach of s 63(2)(a) of the Regulation must also be rejected.

§16.7 OF THE PETITION: VOTER TURNOUT DURING THE LAST HOUR OF POLLING

55.  Although considerable time was spent on this issue at the trial, it can, I consider, be dealt with briefly.  As earlier mentioned, according to the information published by Cheung, during the last hour of the poll (from 9:30 pm to 10:30 pm) at the Polling Station, the voter turnout was 455.  The Petitioner disputes this figure based on three matters:

(1)  the voter turnout figure was published by Cheung at around 11:45 pm after the two ballot boxes used at the Polling Station were out of sight of the polling agents of the Petitioner for around 67 minutes (from 10:38 pm to 11:45 pm) or out of sight of any agent of the Petitioner for at least 22 minutes before the entry into the Polling/Counting Station of the Petitioner’s counting agents at around 11:00 pm;

(2)  the voter turnout figure is inconsistent with the video footages of the CCTV of the Lifts; and

(3)  the voter turnout figure is markedly higher than the voter turnout rate of that hour across different constituencies in Hong Kong and in the Eastern District.

56.  In respect of the first matter relied upon by the Petitioner, I have already dealt with the allegation that the Petitioner or his agent were denied access to the Polling/Counting Station during the period from 10:38 pm and 11:45 pm.

57.  In respect of the second matter relied upon by the Petitioner, Mr Lewis Law submits that, based on the CCTV footages, 332 persons were seen to enter the Lifts on 1/F and exit the Lifts on 2/F of Island Place during the period from 9:30 pm to 10:30 pm.  He relies on the discrepancy between this figure (332) and the official voter turnout figure published by Cheung for the same period (455) to argue that the official voter turnout figure of 455 was “false, or at least doubtful”[19].  There are, in my view, at least 3 reasons why this argument is unsound:

(1)  As explained by Cheung, the hourly voter turnout figure was based on the number of ballot papers issued by the issuing desks to the voters during a particular hour, which was not the same as the number of voters entering the Polling Station or the number of votes cast during that hour.  In other words, the voter turnout figure of 455 for the period from 9:30 pm to 10:30 pm only showed that 455 ballot papers were issued during that hour.  However, there could be voters who had already got to the 2/F of Island Place before 9:30 pm and were queuing either outside the Polling Station in the area referred to as the “yellow zone” (or “No Staying Zone”) on the 2/F of Island Place or inside the Polling Station proper waiting to receive the ballot papers to cast their votes.  Various estimates were given by the witnesses as to the number of voters who still were queuing in the yellow zone at around 9:30 pm.  According to Mr Lewis Law, the combined evidence of Law, Ho and Tsoi would suggest that there were approximately 50 voters queuing in the yellow zone waiting to enter the Polling Station proper at around 9:30 pm[20].  In addition, there would be some voters queuing inside the Polling Station who had not yet been issued any ballot papers[21].

(2)  As also explained by Cheung, the voter turnout figures were based on information kept or provided by the issuing desks at the end of the first quarter of every hour and at the close of the poll at 10:30 pm on the Polling Day (ie at 8:15 am, 9:15 am, etc, except that the last one at 10:30 pm instead of 10:15 pm)[22]. Hence, the official voter turnout figure for the period from 9:30 pm to 10:30 pm in fact represented the number of ballot papers issued during the period from 9:15 pm to 10:30 pm (ie an additional 15 minutes).

(3)  There is direct evidence given by Ho, which I accept, that the crowd control measure adopted by the polling staff was lifted as from around 9:30 pm (or 9:45 pm) because there was no longer any crowd gathering on the 1/F of the Island Place, and she was on the 1/F of Island Place sometime between 9:45 pm and 10:30 pm[23] and saw voters going up to the Polling Station on the 2/F of Island Place by using the Staircase, instead of the Lifts, on the 1/F.  It is clear that the CCTV footages could not capture all the voters who used the Staircase to access the Polling Station during the said period, because the CCTVs were installed inside the Lifts and thus could only capture the scene outside the Lifts when the doors of the Lifts opened intermittently.  The number of voters who went to the Polling Station to vote between 9:30 pm and 10:30 pm would likely be more than the 323 persons seen entering the Lifts on 1/F and exiting the Lifts on 2/F during that hour.

58.  In respect of the third matter relied upon by the Petitioner, it is said that the voter turnout rate for the last hour of the poll (from 9:30 pm to 10:30 pm) at the Polling Station (4.89% over the size of the constituency’s electorate) was much higher than the average voter turnover rate in that hour across different constituencies in Hong Kong (2.18%) and in the Eastern District (2.09%).  However, the Petitioner also accepts that the voter turnout rate for the last hour of the poll at the Polling Station was only the second highest one for that hour in the Eastern District.  In my view, it would be pure speculation to draw any inference merely from these figures without further studies as to the factors which might affect the voter turnout rates in different constituencies and during different hourly periods.

59.  In all, the Petitioner has failed to prove that the voter turnout (455) for the last hour of the poll (from 9:30 pm to 10:30 pm) at the Polling Station published by Cheung was incorrect or doubtful.

§16.8 OF THE PETITION: GENERAL

60.  The general allegation in §16.8 of the Petition, namely, that overall, the Presiding Officer, the polling officers and/or the counting officers at the Polling/Counting Station failed to make proper arrangements to ensure that the Election was conducted fairly, justly and openly, must, in my view, be read as referring to the specific facts and matters pleaded in §§11 to 15 of the Petition, which I have already dealt with above.  I do not consider the general allegation in §16.8 of the Petition adds anything of substance to the Petitioner’s case.

IMMATERIALITY OF IRREGULARITY

61.  As mentioned in above, I consider it to be an irregularity that the packets containing the unissued ballot papers, the spoilt ballot papers and the marked copies of the final register were not sealed until after the completion of the counting of the votes and announcement of the result of the Election.

62.  Guidance on whether an irregularity is material for the purpose of s 49(1)(a)(iv) of the District Council Ordinance can be found in the Reasons for Determination of the Appeal Committee of the Court of Final Appeal refusing to grant leave to appeal in Lau Siu Lai v Kwok Wai Fun Franco (Returning Officer) (2020) 23 HKCFAR 338:

“[10] Whether an irregularity is ‘material’ in relation to an election must be determined against the context that elections must be open, free and fair. Material irregularity as a ground of election petition is to ensure the integrity and credibility of the electoral process and election result. Materiality is therefore not to be considered by reference to the outcome of the election only. The nature of the irregularity, its significance and gravity in the context of the decision under challenge, are important considerations, as is the possible impact of the irregularity on the integrity of the electoral process and public confidence in it. A candidate who is unlikely to win, or is bound to lose, enjoys as much protection of his procedural rights under the election law as a candidate who is a front-runner in the election.

[11] Materiality is a question dependent on the facts of each case.  Whether the non-occurrence of the irregularity in question would have made any difference to the election result is but one possible consideration to be taken into account, and its weight varies depending on the facts.  There can be other overriding considerations.  It follows that depending on the facts, it may or may not be necessary in order to decide the question of materiality to first determine the effect of the irregularity on the election outcome.”

63.  In short, the nature of the irregularity, its significance and gravity in the context of the decision under challenge, are important considerations. So also is the possible impact of the irregularity on the integrity of the electoral process and public confidence in it.  On the other hand, whether the outcome of an election was, or might have been, affected by an irregularity, while relevant, is not necessarily conclusive in the determination of whether the irregularity is a material one.  This having been said, if it can be shown that the result of the election might have been affected by the irregularity, it is a significant consideration, and may, depending on the facts of the case, be determinative of the question (see Lam Kin Man v Leung Wai Kuen Edward, HCAL 1/2012, at §26 per Lam JA (as he then was)).

64.  In this case, the evidence before the court[24] is that:

(1)  prior to the use of either ballot box for polling, it had been examined by the candidates’ polling agents to ensure that there was nothing inside it before the door to the ballot box was locked and its back was sealed;

(2)  the front slot of each of the two ballot boxes was sealed after its use in the presence of the candidate’s polling agents (the first one at around 3:00 pm and the second one at around 10:30 pm), and the pooling agents signed on a form attached to the seal of the ballet box; and

(3)  the seals of the two ballot boxes were broken in front of the candidates, their agents, the media and members of the public at around 00:15 am on 25 November 2019.

65.  The matters mentioned in §52 above are repeated.  It is also relevant that the number of ballot papers estimated to be in the two ballot boxes (6,179) as stated in the Form P(18) signed by Cheung at about 11:00 pm tallied with:

(1)  the cumulative voter turnout (6,179) as recorded in the Hourly Voter Turnout (Form P(15)) signed by Cheung on 24 November 2019 which was published at about 11:45 pm; and

(2)  the actual number of ballot papers in the counting process (6,179) as recorded in the Counting Record Sheet (Form F1) signed by Cheung at around 05:54 am on 25 November 2019.

66.  I do not consider that there is any real basis to believe that the two ballot boxes, or the voting papers contained in them, had been tempered on 24 November 2019 or at any time prior to the completion of the counting of votes on 25 November 2019.  I also do not believe that the result of the Election was in any way affected by the irregularity.

67.  The irregularity itself, namely, the failure to seal the packets containing the unissued ballot papers, the spoilt ballot papers and the marked copies of the final register during the time when the Polling Station was being converted into the Counting Station and prior to the commencement of the counting of votes is not a serious or significant one on the facts of the present case.  I accept that the unsealed packets were at all material times under the control of Cheung and/or his polling staff.  I also do not consider the irregularity to have any significant impact on the integrity of the electoral process or public confidence in it.  The Petitioner’s suggestion of a possibility, or probability, of vote rigging in the present case (“e.g. taking away certain unissued ballot papers from the reserve, stamping such papers, marking on electors who had not voted as having voted in the final register and putting such papers into the ballot boxes by using the key attached to the ballot boxes”[25]) is, I consider, fanciful or imaginary.  In all, I find that the irregularity is not a material one.

Conclusion and disposition

68.  In conclusion, the Petitioner has failed to prove that any material irregularity occurred in relation to the Election, or the polling or counting of votes in the Election, under s 49(1)(a)(iv) of the District Council Ordinance.

69.  The Court determines that the 1^st Respondent was duly elected in the Election.  The Petition is dismissed with costs, including all reserved costs (if any), to the 1^st and 2^nd Respondents to be taxed if not agreed with certificate for 2 counsel.  For the avoidance of doubt, this costs order is not an order nisi, but is a final order.

70.  Lastly, it remains for me to thank counsel for their assistance rendered to the court in this case.

[1] See §3(d) of the Petitioner’s Opening Submissions dated 19 April 2021.

[2] See §19 of the Petitioner’s Closing Submissions dated 10 May 2021.

[3] See §§11.4-11.5 of the Petitioner’s Closing Submissions.

[4] See §8 of Tsoi’s First Affirmation filed on 24 December 2019.

[5] See §12 also §16.1 of the Amended Election Petition.

[6] See §1.4 of the Petitioner’s Closing Submissions.

[7] See §28 of the Petitioner’s Closing Submissions.

[8] See §1 of Tsoi’s First Affirmation.

[9] See §4 of the Petitioner’s Closing Submissions.

[10] See §8 of Tsoi’s First Affirmation.

[11] As captured in a video recording (Exhibit HCK-8).

[12] See §14 of the Amended Election Petition.

[13] Presiding Officer.

[14] There was, as a matter of fact, no unused ballot paper.

[15] See §20 of the Petitioner’s Closing Submissions.

[16] See §2 of Tsoi’s Second Affirmation and §2 of the Petitioner’s Second Affirmation. Previously, they said that they returned to the Polling Station at around 11:30 pm: see §9 of Tsoi’s First Affirmation and §9 of the Petitioner’s First Affirmation.

[17] See §5 of Tse’s Affirmation filed on 30 June 2020.

[18] See §13 of the Amended Election Petition.

[19] See §52 of the Petitioner’s Closing Submissions.

[20] See §61 of the Petitioner’s Closing Submissions.

[21] See §64 of the Petitioner’s Closing Submissions.

[22] See §30 of Cheung’s First Affirmation.

[23] That Ho was present on the 1/F of Island Place between 9:45 pm and 10:30 pm on 24 November 2019 can be seen from the CCTV footages.

[24] See §§3 and 6 of Tsoi’s First Affirmation, and §§19, 22 and 25 of Cheung’s First Affirmation.

[25] See §8 of the Petitioner’s Opening Submissions.