HO YIN FAI v. WU CHI KIN AND ANOTHER

HCAL 28/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 28 OF 2016

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J U D G M E N T

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A. INTRODUCTION

1.  The District Council Election was held on 22 November 2015 (“the Election”).  The Chi Choi Constituency was one of the constituencies of the Wong Tai Sin District Council. Tan Fung House and Chi Mei House of the Choi Hung Estate formed part of the Chi Choi Constituency.

2.  The Petitioner (“Mr Ho”) and the 1^st Respondent (“Mr Wu”) were both candidates contesting the Chi Choi Constituency seat in the Election. The 2^nd Respondent declared that Mr Wu was elected for the Chi Choi Constituency on 23 November 2015, notice of which was gazetted on 30 November 2015.  Mr Wu defeated Mr Ho by 5 votes.

3.  Mr Ho challenges the result of the Election by reason of 3 types of allegedly corrupt or illegal conduct of Mr Wu in connection with the Election:

(1)  Provision of food, drinks or entertainment (“1^st Ground”);

(2)  Publishing of false or misleading election advertisement that included a false claim of support (“2^nd Ground”); and

(3)  That corrupt or illegal conduct was generally prevalent at or in connection with the Election (“3^rd Ground”).

B.  UNDISPUTED FACTS

4.  The Choi Hung Estate Social Service Association (“the Association”) was a registered non-profit organisation set up in 1984.  Its objects were to serve the residents in the Choi Hung Estate, respect the elderly, care for the young and the weak, promote and organize civic activities in order to promote harmony in the neighbourhood and the spirit of mutual caring.

5.  Amongst other activities, the Association organized Respect for the Elderly Meals (“the Meals”) annually.

6.  Since 2013, Mr Wu has been a volunteer officer of the Association, assisting in organizing activities, health checks, meeting the public and home visits.

7.  The Association organized 6 kinds of activities in 2015 (“the Activities”) that formed the subject matter of the 1^st Ground:

(a)  Between 26 July 2015 and 30 August 2015, 12 buffet lunches, each with a day trip and sightseeing transportation, to the residents in Choi Hung Estate in every Saturday and Sunday;

(b)  Between 7 and 16 September 2015, distribution of gift packs of rice to most residents at Choi Hung Estate;

(c)   Between 22 September 2015 and 25 September 2015, distribution of gift packs of mooncakes and fruits free of charge to residents at Choi Hung Estate;

(d)  On 11 October 2015, 2 sessions of the Meals were held.  The President of the Association Mr Wong Chai Chung (“the President”) stated in a speech that Mr Wu could not attend those Meals because he had already stood nominated as a candidate for the Election;

(e)   Between 16 and 30 October 2015, holding 10 Chinese afternoon-tea buffets (“the Chinese Buffets”) for residents of the Choi Hung Estate;

(f)   Between 1 and 10 November 2015, holding 20 afternoon-tea buffets in a hotel (“the Hotel Buffets”) for residents for the Choi Hung Estate.

Those meals were all below cost and gift packs for free.

8.  In between the 6 Activities, on 1 October 2015, Mr Wu held a Pledge Ceremony and declared his intention to stand for election in the Election.  On 5 October 2015, Mr Wu stood nominated as one of the candidates for the Election.

9.  On 14 October 2015, Mr Ho and other residents of the Chi Choi Constituency lodged a complaint to the Registration and Electoral Office (“REO”) (“the Oral Complaint”).  Eventually the Returning Officer did not consider the complaints to fall within her purview and, with the consent of the complainants, referred the matter to the ICAC.

10.  On 20 October 2015, Mr Wu submitted a Consent to Support Form (“the Consent Form”) to REO.  The Consent Form contained a declaration that Mr Wu had obtained the support of the Mutual Aid Committee of Tan Fung House (“the MAC”) in a “general meeting”.  In fact, no such general meeting was ever held. There was only a purported committee meeting held by the MAC on 10 October 2015 (“the Committee Meeting”).

11.  In November 2015, Mr Wu started distributing pamphlets which stated that he had the support of the MAC (“the Pamphlets”).

12.  Mr Ho alleged that the Pamphlets contained a false declaration of support in that no general meeting of Tan Fung House was held. This formed the 2^nd Ground.

13.  Mr Ho also alleged that corrupt or illegal conduct was prevalent. This formed the 3^rd Ground.

14.  Mr Ho had made a report to a “government authority”, presumably meaning the ICAC.

15.  On 21 December 2015, the ICAC invited Mr Wu to assist in the investigation regarding corrupt or illegal conduct during the Election. Mr Wu was never arrested or charged.

C.  THE DEFENCES

16.  Mr Wu does not dispute that the Activities had taken place but denies knowledge of or consent to the arrangement of the Activities.  He did not take part in the Activities and was not involved in packing the gifts.  In fact, he was not aware that gifts would be distributed until 14 October 2015.

17.  He claims that after the Pledge Ceremony, he had on the same day immediately informed the Association.  He had since ceased attending the local activities of the Association or used its name to do any advertising or home visits. 

18.  He claims to have told the Association not to mention him in any activities or distribute any advertising items and gifts with his photo and/or name; and to cover his name and/or photo with white paper on all advertising materials (“the Oral Request”).  He believed that someone had removed the covering white paper without his or the Association’s consent.

19.  Mr Wu also claims that he had taken reasonable steps to verify the alleged support and that he reasonably believed that the statement of support of MAC was true at the time it was made.

20.  The issues are as follows:

(1)  Whether the Activities were for the purpose of inducing the public to vote for Mr Wu in the Election; or were otherwise corrupt conduct;

(2)  Whether Mr Wu knew about and had given consent to the organizing of the Activities for the designated purpose;

(3)  Whether the claim of support of the MAC on Mr Wu’s election advertisements was false or misleading;

(4)  Whether Mr Wu had taken reasonable steps to verify the alleged support from the MAC before causing it to be published in his election advertisements and/or statements.

D.  BURDEN AND STANDARD OF PROOF

21.  The first 2 Grounds in this election petition are based on sections 12(1)(a), 26 or 27 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) (“ECICO”) and the 3^rd Ground is based on section 49(1)(a)(iii) of the District Council Ordinance, Cap 547.

22.  The burden is on Mr Ho to establish the Grounds. The standard of proof is one of balance of probabilities. However, as the allegations involve criminal misconduct punishable by imprisonment, cogent evidence is required notwithstanding these are civil proceedings: Re Ho Chun Yan Albert (2012) 15 HKCFAR 686, Appellate Committee, at §25.

23.  The Appellate Committee further observed, obiter, in the context of illegal conduct under section 26 of the ECICO, that:

“… A more demanding approach is called for where it is sought to establish the commission of a criminal offence as the relevant election petition ground. The Court would have to determine whether it is proved to a standard equivalent to the criminal standard that the words, given their natural and ordinary meaning, constituted a materially false or misleading statement made with the purposes specified and without belief on reasonable grounds in the truth of the statement.” (at §41)

24.  This observation has been applied to election petitions in (a) Yu Chi Shing Paul v Tin Ping Estate Proprietor Concernment Association, HCAL 8/2012, 10 December 2012, at p 10, §27, Lam JA (as Lam VP then was) (sitting as an additional judge of the Court of First Instance) where his Lordship called for a “more stringent approach” in determining the meaning of a statement; and (b) Wong Yun Keung Simon v Lam Cheuk Ting, HCAL 29/2016, 30 November 2016, at pp 9-10, §§14-15, G Lam J.

25.  By the same token, the stringent approach should be equally applicable to corrupt conduct under section 12 of the ECICO, because:

(a)  The maximum penalty for corrupt conduct is more than that of illegal conduct.  Corrupt conduct is punishable by up to 3 years’ imprisonment on summary conviction, and up to 7 years on conviction on indictment: section 6 of the ECICO.

(b)  The court cannot grant relief to a candidate who commits corrupt conduct whereas relief can be granted for certain illegal conduct: section 31 of the ECICO.

E.  1^ST GROUND: PROVISION OF FOOD, DRINKS OR ENTERTAINMENT

E1. Legal principles

26.  Section 12(1)(a) of the ECICO provides that:

“(1) A person engages in corrupt conduct at an election if the person provides, or meets all or part of the cost of providing, food, drink or entertainment for another person for the purpose of inducing the other person or a third person—

(a) to vote at the election for a particular candidate or particular candidates;

…

(6)  A person is taken to have engaged in corrupt conduct of a kind referred to in subsections (1) to (4) even though the conduct was engaged in by another person, but only if the other person was acting with the person’s authority.  That authority may be conferred expressly or by implication.”

(underline added)

27.  Merely promoting a favourable image for the candidate and making him generally more electable is not sufficient for the purposes of qualifying as election expenses: Mok Charles v Tam Wai Ho (No 2) [2011] 4 HKLRD 1, per Tang ACJHC (as Tang PJ then was) at §§51 & 72.  This observation was not disturbed on appeal to the Court of Final Appeal: (2012) 15 HKCFAR 489.

E2.  The defences

28.  Mr Wu’s defences are that:

(a)  The first 3 Activities were before the Pledge Ceremony;

(b)  The purpose of inducing to vote for him was not satisfied as regards the 4^th to 6^th Activities;

(c)   The Association was not acting with his authority.

E3.  The first 3 Activities

29.  The first 3 Activities were before the Pledge Ceremony.  Mr Brian Wong, counsel for Mr Ho, does not rely on them in his closing speech. 

E4.  The 4^th Activity – the Meals

30.  In respect of the Meals, Mr Ho alleges as follows:

(a)  The President made a speech at one of the Meals mentioning Mr Wu (“allegation (a)”).

(b)  There were a few flags/posters bearing the photo and name of Mr Wu at one of those Meals (“allegation (b)”);

(c)   Gift packs with the name and photo of Mr Wu were distributed to attendees (“allegation (c)”);

(d)  There was a banner with Mr Wu’s photo and name advertising the Meals (“allegation (d)”).

31.  Mr Wu disputed the facts for allegation (b) only.  He denied having prior knowledge of the making of the speech or the giving out of gift packs.  He also denied that the Association had his authority to give out gift packs or use his photo and name on the gift packs/banner.

32.  The Association has been holding the Meals annually.  By 2015, it was the 41^st time.  It has been a usual practice to distribute gifts during those Meals.  Mr Wu’s case was that he was not involved in the preparation of the Meals.  He did not attend those Meals.

33.  An activity that has been held consistently for years may not be “treating”.  In the Aylesbury Case 4 O’M & H 59, a school treat which had been held for the last 5 or 6 years was held not to be treating.  Field J held at p 64:

“But it has been satisfactorily established in this case that no more was done here than had been done in previous years. It is true there were a greater number of people present on this occasion than usual; that was accounted for in many ways. Under these circumstances it seems to me it would be straining the law very much to hold that there was any corrupt intention in the mind of the Respondent on that occasion to influence votes which otherwise would not have been influenced.”

34.  Overall, as regards the speech and distribution of gift packs, there was nothing to show Mr Wu’s prior knowledge of those acts. 

35.  Mr Ho said that Mr Wu did not resign from the Association after the Pledge Ceremony.  Mr Wu had power to obtain information from the Association, including the arrangements at the Meals and the gifts to be distributed that day.

36.  In my view, merely showing that Mr Wu could have obtained information was different from showing that he knew or had consented to certain conduct.

37.  Further, there was nothing to show that the speech, gift packs and banner were to induce the voters to vote for Mr Wu.

38.  It was only in the affirmation in reply that Mr Ho stated that though Mr Wu did not attend, he had agreed or impliedly agreed to let the Association place posters with his name and photo at the venue for the Meals and to distribute gifts with his name and photo.  And through the “leading” speech of the President, the attendees were given an image of Mr Wu being related to the Meals, thereby inducing the attendees to vote for Mr Wu.  Mr Ho suggested that these were specially designed as part of the electioneering activities.  Had he investigated beforehand, Mr Wu would have known about the gifts. 

39.  In fact, Mr Ho has not pleaded that the Association or the President were acting with Mr Wu’s authority.  Hence, matters in the preceding paragraph tending to show implied consent or authority should not be relied on.

40.  The Association had consulted a barrister for advice before the Meals.  However, there was no evidence of what the advice was or that Mr Wu was aware of the advice.

41.  Specifically, with regard to allegation (a), the President mentioned in his speech the date of the District Council Election and that Mr Wu (an officer of the Association) could not attend because he had already stood nominated as a candidate for the Election. 

42.  In Secretary for Justice v Tam Heung Man [2012] 4 HKC 381, the Magistrate drew a distinction between inducement to vote for a candidate and inducement to attend an electioneering activity.  On Appeal, Lam J (as Lam VP then was) held at p 390, §27:

“In my judgment, the magistrate did not err in law in drawing this distinction. The conclusion that the respondent did exploit the CPD talk as an inducement to the electors to attend the tea-gathering (and to hear the speeches of Mrs Chan and herself) does not necessarily mean that she intended the CPD talk to be an inducement to vote for her.”

43.  There was close relationship between the President and Mr Wu.  The President was one of the persons who nominated Mr Wu as a candidate.  Mr Wu had obtained the President’s permission to place election posters and banners at the premises of the Association.  The Association had agreed to promote Mr Wu at his request.  The Meals were to celebrate the National Day and show respect for the elderly, and yet the President deliberately mentioned the pending Election and only Mr Wu, although there was another candidate.

44.  However, amongst all the Activities, this was the only occasion that the President had made a speech mentioning Mr Wu.  In the Association’s working report published on 3 November 2015, the Association only recommended registered voters of Choi Hung Estate to vote for a Mr Leung Tat Por but not Mr Wu.

45.  Applying Tam Heung Man, even if the President had used the Meals to induce the attendees to hear his speech, that did not necessarily mean that he intended the Meals to be an inducement to vote for Mr Wu. 

46.  Allegation (a) is not substantiated.

47.  With regard to allegation (b), there was no mention of the flags/posters in Incident 4 of the Oral Complaint concerning the Meals or Mr Ho’s first affirmation. The photo submitted to the REO did not show flags/posters either.  The fact that Mr Ho had reported to a “government authority” and thus could not provide proof to REO or the Court could not advance Mr Ho’s case.

48.  During cross-examination, Mr Ho admitted that he did not attend the Meals but was only told by a resident about it.  He avoided explaining why this allegation was not mentioned and no photographs were produced when the Oral Complaint was made. 

49.  Allegation (b) is not substantiated.

50.  With regard to allegation (c), Mr Wu had authorised the use of his name and photos previously when distributing rice dumplings and mooncakes.  He was aware of the intention of the Association to use his photo and name to attract the general public to use its services.  He agreed that there was nothing to stop him from withdrawing the authority.

51.  Mr Wu relies on paragraph 18 above.  When he discovered the use of his photo in the gift packs, he took the matter up with the President who replied that that was not an issue because distribution of gifts with Mr Wu’s photos was part of the Association’s normal activities.  There was nothing to show that Mr Wu knew or consented to the conduct of the Association.

52.  Allegation (c) is not substantiated.

53.  With regard to the banner under allegation (d), Mr Wu had done 2 things: one to give the Oral Request; the other was to send out a message to a chat group through WhatsApp.

54.  The Oral Request was made on 1 October 2015.  He believed that someone must have torn off the white paper without his authority.  This explanation was supported by a WhatsApp message from someone of the Association showing that the paper was torn off but re-covered on Mr Wu’s behalf.  Even Mr Ho agreed in his oral evidence that the banner had been covered in late October.  There was thus some truth in Mr Wu’s defence.

55.  As for the message that Mr Wu sent out, it was in these terms, “我今天誓師, 想問下聯會門口有沒有出我名字的橫額或海報?”  With respect, this was far from a request to the Association not to include his name and photo on any advertising material.  It did not assist Mr Wu.

56.  Anyhow, Mr Wu’s name was stated in the banner only as one of the contact persons.  There was nothing on it about election.

57.  Allegation (d) is not substantiated.

58.  The complaints in relation to the 4^th Activity are not substantiated.

E5.  The 5^th Activity – Chinese Buffets

59.  Mr Wu’s case that he was not involved in the preparation of the Chinese Buffets and he did not attend them.  The posters did not contain his name or photo.  There was simply nothing to suggest that the Chinese Buffets were to induce voters to vote for him or that the Association was acting with his authority.

60.  During cross-examination, Mr Ho alleged that gifts such as instant noodles were distributed in the Chinese Buffets.  This was never mentioned in his affirmations.  Although he had allegedly taken photo of the gifts, he did not produce any such photos because he said he had complained to a government department.  I do not find the evidence concerning the gifts to be reliable.

61.  The complaints in respect of the 5^th Activity are not substantiated.

E6.  The 6^th Activity – the Hotel Buffets

62.  There were 3 limbs to this Activity: provision of food and drinks, poster/banner with the name of Mr Wu and distribution of gift packs at the Hotel Buffets.

63.  Mr Wu’s case that he was not involved in the preparation of the Hotel Buffets and he did not attend them.  There was simply nothing to suggest that the Hotel Buffets were to induce voters to vote for Mr Wu or that the Association was acting with Mr Wu’s authority.

64.  Mr Wu’s name and photo did not appear on the poster concerning the Hotel Buffets.

65.  The banner for the Hotel Buffets had been posted up before the Pledge Ceremony.  Mr Wu’s name was stated on the banner with his title “幹事” as a contact person.  Mr Wu had previously asked the Association to cover up his name or photo.  Mr Ho agreed that the banner in relation to the Hotel Buffets had been covered since 13 October 2015. 

66.  Mr Ho’s evidence tallied with Mr Wu’s.  When it was discovered that the white paper covering Mr Wu’s name was torn off, Mr Wu’s assistant quickly covered Mr Wu’s name with white paper again.  I accept the evidence.

67.  During cross-examination, Mr Ho alleged that gifts such as instant noodles and biscuits were distributed in the Hotel Buffets.  This was not mentioned in his 2 affirmations.  Nor had he produced any photos of such gifts allegedly taken by him.  He relied on a photo taken by Apple Daily but no biscuits could be seen in that photo.  His evidence was not reliable.

68.  Mr Wu said that he was not aware that gifts with his name and photo were distributed at the Hotel Buffets until the filing of this election petition.  There was lack of evidence to contradict this.

69.  The complaint in relation to the 6^th Activity is not substantiated.

E7.  A collective view

70.  I have considered the 4^th to 6^th Activities collectively. Before the Pledge Ceremony, there were already 3 Activities.  After the Pledge Ceremony, the meals increased.  Over a one-month period, 32 sessions of meals have been offered, sometimes twice a day as the Election day drew near.

71.  Mr Ho stated on affirmation that these continuous activities were (i) to build up the relationship between Mr Wu and the Association, and (ii) to indicate to the voters that if Mr Wu were elected the Association would continue to hold such Activities and hence induce the voters to vote for Mr Wu.  These were not pleaded.  Limb (ii) to his statement was not an irresistible inference. 

72.  Mr Wu’s own case on lack of knowledge of all these Activities involving use of his name and photo depicted him as a person ignorant of occurrences within his Constituency.

73.  The Oral Request was not followed up by reminders. Use of paper to cover up his name was a plainly insecure way to cover up his name.  Even after he learnt of the Oral Complaint and talked to the President about the gift packs, he made no conscious effort to ensure that his photos were not put on gift packs again.  He simply lacked diligence or prudence and turned a blind eye to what the Association was doing.

74.  However, the law is to punish corrupt or illegal conduct, not lack of diligence or prudence.  The evidence was not cogent enough to meet the requirements of section 12(1) ECICO.  The 1^st Ground is not proved.

F.  2^ND GROUND: ALLEGED SUPPORT OF MAC

F1.  Legal principles

75.  Mr Ho runs an alternative case based on section 26 or 27 of ECICO.

76.  Section 26 of the ECICO provides that:

“(2) A candidate engages in illegal conduct at an election if the candidate publishes a materially false or misleading statement of fact about the candidate …, for the purpose of –

(a) promoting the election of the candidate … ; or

…

(3) For the purposes of this section, statements about a candidate or candidates include (but are not limited to) statements concerning the character, qualifications or previous conduct of the candidate or candidates.

(4)  In a prosecution for an offence of having engaged in illegal conduct under subsection (1) or (2), it is a defence to prove that the defendant believed on reasonable grounds that the statement was true at the time when it was made.”

77.  Section 27(1) and (1A) of the ECICO makes it illegal conduct for a candidate to publish or authorize publication of an election advertisement which implies that he has the support of an organization unless, before publication of the advertisement, the organization has consented in writing.

78.  Section 27(3) of the ECICO provides that:

“For the purposes of subsections (1A), (1B), (2A) and (2B), the consent of an organization is taken to have been obtained if (a) the consent was given by an officer of the organization; and (b) the candidate or person who publishes, or authorizes the publication of, the election advertisement believed on reasonable grounds that the officer had authority to give the consent.”

79.  The Chinese version of “officer” in section 27(3) is “高級人員”.

80.  Mr Wu relies on the defence of belief on reasonable grounds under both sections 26(4) and 27(3).

81.  The legal principles in Section D apply to the 2^nd Ground.

82.  Mr Brian Wong submits that the defence under sections 26(4) and 27(3) is applicable only to criminal prosecution but not in an election petition: Chung Ming v Chow Ping Tim, HCAL 11/2004, 9 July 2004, Chung J, §§30, 46-48.  This authority has since been overruled: Yu Chi Shing Paul, at §54.

F2.  Analyses

83.  As stated on the Pamphlets, the organization that purported to support Mr Wu was MAC, not Tan Fung House.

84.  According to Appendix P of the Guidelines on Election-Related Activities in respect of the District Council Election issued by the Electoral Affairs Commission (“the Guidelines”):  

“2. … Mutual Aid Committees (“MACs”) should comply with the following procedures:

(a)   If the support is to be given to a candidate of a constituency in the name of the MAC, the written consent should be approved at a general meeting convened in accordance with the Model Rules for the MAC, and signed by the incumbent Chairman of the MAC.  (underline added)

…

3. All general meetings of the MAC should be convened in accordance with the procedures laid down in the Model Rules for the MAC.”

85.  Indisputably, no general meeting had been convened for Tan Fung House.  The Pamphlets were issued in breach of the Guidelines.

86.  In defence, Mr Wu relied on a copy of the minutes of Meeting of MAC (“the Minutes”) given to him by the Chairman, Mr Ip Kwai Yuen (“the Chairman”) on 27 October 2015.  He also relied the Model Rules for MAC in a Public Housing Estate (“the Model Rules”).

87.  The purported meeting was held pursuant to notice issued by MAC on 7 October 2015 to convene the Committee Meeting 3 days later, without specifying what would be discussed.  There was no evidence that Mr Wu was aware of this notice.

88.  The Minutes recorded the Committee Meeting as being held “pursuant to the Model Rules”. The resolution to support Mr Wu was passed by 3 out of 5 officials.  The Minutes contained 3 signatures, including that of the Chairman, and bore the chop of MAC.  A member of MAC was stated to be absent.  There ought to be at least a 5^th member (even on Mr Wu’s case) who was not even mentioned in the Minutes. Mr Wu himself conceded that the Minutes could in no way be described as minutes of a general meeting.  He did not attend the Meeting.

89.  Mr Wu pointed out that according to clause 7(a) of the Model Rules, the functions and responsibilities of the MAC shall be performed by the Executive Committee which shall consist of at least 3 key office-bearers including a Chairman. Clause 11(b) provided that “a General Meeting may be called from time to time to discuss and/or pass resolutions concerning any business of the MAC.”  There was nothing in the Model Rules about the quorum for MAC so he thought the resolution by a majority was valid.

90.  Having satisfied himself to the “regularity” of the Minutes, Mr Wu submitted the Consent Form with one part signed by the Chairman.  Clause 5 (partly deleted by Mr Wu) showed that he had read that Clause referred expressly to the resolution being reached in a “general meeting”.  Clause 6 in the explanatory notes to the Consent Form (“Clause 6 CF”) also expressly required the Consent Form to be signed by the Chairman upon being approved by resolution in a general meeting. The need for a general meeting was reasonably brought to his attention.

91.  It was in the witness box that Mr Wu claimed that he then knew from the Model Rules that there was a difference between MAC meetings and general meetings.  In my view, his lack of understanding of the legal meaning of general meeting was not a reasonable excuse for breaching the Guidelines and Model Rules.  In addition, his interpretation of Clauses 7(a) and 11(b) of the Model Rules was also taken out of context.

92.  However, the 2^nd Ground was not about making a false declaration to REO but about breach of section 26 or 27 of ECICO.  While the Courts would accord great respect to any guideline issued by the Electoral Affairs Commission, such guidelines do not take precedence over any legislation passed after consultation and scrutiny: Mok Charles v Tam Wai Ho (No 2) [2011] 4 HKLRD 1, §§9 and 11, Tang ACJHC (as Tang PJ then was); §119, Stock VP; §149, Cheung JA.

93.  Guidelines may be incomplete.  They can change but the interpretation of the section’s import must remain constant, whatever the complexion of the Guidelines at any given time: Stock VP, at §119.

94.  These observations were not disturbed on appeal to the Court of Final Appeal in Mok Charles Peter v Tam Wai Ho (2012) 15 HKCFAR 489.

95.  Under sections 26 and 27 ECICO, the organization MAC had resolved to support Mr Wu.  Applying sections 2 and 27(3) ECICO, the Chairman who signed the Minutes was plainly an “officer” of the MAC.  The Chairman had actual and ostensible authority of MAC to sign the Consent Form.

96.  Although Mr Ip was one of the persons who nominated Mr Wu as a candidate of the Election and was an executive member of the Association, that would not invalidate the Minutes.

97.  In Leung Wai Kuen Edward v Secretary for Justice ((unreported), HCMP 1321/2012, 17 January 2013), Lam JA (as Lam VP then was) at §22, adopted “the date of dispatch or dissemination as the date of publication” in the context of section 27(1) ECICO.  This holding was not disputed in a related election petition: see Lam Kin Man v Leung Wai Kuen Edward ((unreported), FAMV 11/2013, 11 July 2013).

98.  In the present case, Mr Wu should be taken to have obtained the consent of MAC by 27 October 2015, at the latest, after MAC posted up the Minutes for 7 days.  He waited for some time in case the residents of Tan Fung House would want to revoke the consent.  

99.  The Pamphlets were only distributed from 16 November 2015 onwards.  Therefore, by the date of the publication, Mr Wu had already obtained the consent of MAC (not Tan Fung House). 

100.  On 3 November 2015, the Returning Officer for the Chi Choi issued a letter to the Chairman stating, amongst others, that the Guidelines were breached (“REO’s letter”).  The Chairman was warned against repetition of the same conduct.  However, there was nothing to show that Mr Wu was aware of this letter at the time he submitted the Consent Form.

101.  Mr Wu’s understanding of the meaning of general meeting was naive.  He selectively relied on the Model Rules.  However, it could not be said that on the strict interpretation of section 26 or 27 ECICO he had breached the law despite MAC had breached the Guidelines.  He had reasonable grounds to believe that statement of support by MAC in the Pamphlets was true or that the Chairman (backed by the Minutes) had authority to sign the Consent Form.  The 2^nd Ground is not established.

GENERAL PREVALENCE

102.  Since I have found there to be no corrupt or illegal conduct the question of prevalence is academic.  However, for completeness sake, I deal with it briefly.

103.  According to Mr Wu, about 2,000 Pamphlets were printed.  He put them into the letter boxes of residents of his Constituency and on the streets.  He claimed that Tan Fung House only comprised 3% of his supporters, counting 1,014 voters (clearly within the Constituency) as one unit, and 28 individual supporters and 2 organizations (not entirely clear if within the Constituency) as 30 units.  His approach towards counting support was fundamentally flawed and had no legal basis. If I were to find corrupt or illegal conduct, I would also find there to be general prevalence.

CONCLUSION

104.  None of the Grounds were established.  The election petition is dismissed.  Pursuant to section 55(2) of the District Councils Ordinance, Cap 547, I determine that Mr Wu was duly elected.

COSTS

105.  On a nisi basis, I order Mr Ho to pay the costs of Mr Wu and the 2^nd Respondent.  Mr Ho’s side was late in lodging the opening submission for no good explanation.  On the other hand, Mr Wu came to court late on the 2^nd day he gave evidence.  I make a 10% reduction of the attendance costs on the 2^nd day to reflect the loss caused to Mr Ho’s side.

106.  I summarily assess the costs of the 1^st Respondent to be $250,000 and those of the 2^nd Respondent to be $49,986.

107.  I thank counsel for their assistance.