KU KWAI YIU v. SECRETARY FOR JUSTICE

HCMP 2218/2020

[2021] HKCFI 2639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2218 OF 2020

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DECISION

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The Application

1.  By Originating Summons filed on 30 November 2020 (the “OS”)  and subsequently amended[1] (the “AOS”), the Applicant seeks certain correction and exemption relief (“Correction Relief” and “Exemption Relief”)  pursuant to section 40 of the Elections (Corrupt and Illegal Conduct)  Ordinance Cap 554 (the “ECICO”).

2.  The Applicant has filed three affirmations in support of his application (“A/1^st”, “A/2^nd” and “A/3^rd”).

3.  Ms Poon Hiu Wai has filed an affirmation in response (“Ms Poon”, and “Poon/Aff”).  Ms Poon holds the post of Electoral Officer (Elections 2)  Nomination 3 of the Registration and Electoral Office (“REO”).

4.  This Court has directed that the OS be dealt with on the papers.

5.  Mr Michael Lee, counsel for the Applicant, has filed his written submission in support.  Ms Ally Shum has filed her written submission on behalf of the Secretary for Justice. 

6.  The Department of Justice does not intend to challenge the facts contained in the affirmations filed by the Applicant.  It adopts a neutral stance in this application.

7.  I have considered all the evidence and submissions.  I have decided to allow the application.  Below are my reasons.

The Applicant

8.  The Applicant was a candidate in the 2019 District Council Ordinary Election for Tsui Wan Constituency held on 24 November 2019 (the “2019 DC Election”).  The election campaign spanned from 12 October 2019 to the election date (the “Election Campaign”).  He was successfully elected.

9.  Pursuant to sections 37(1), (1F)  and (2)  of the ECICO, the Applicant on 27 December 2019 lodged his Return and Declaration of Election Expenses and Election Donations[2] (the “Original Election Return”).

10.  The present application concerns that Original Election Return.

The law

11.  The applicable law, principles and considerations are not in dispute. They have been set out in a number of previous decision.  They include Re Brook Bernacchi & Ors [1957] HKLR 185 at 186, Re Yiu Chun Fat, unrep, HCMP 1482/2007, 5 November 2007, per Lam J (as the Permanent Judge then was)  at §§10 and 12, Re Fan Gary Kwok Wai & Others, unrep, HCMP 1080/2013, 20 January 2014, per Au-Yeung J at §§7-9, Martin Charles V.M. Lister v Secretary for Justice, unrep, HCMP 202/2017, 29 June 2017, per Au-Yeung J at §§24 and 27, and my decision in Man Fu Wan v Secretary for Justice [2020] 4 HKLRD 153 at §§8-17.  I apply those law, principles and considerations.

30% of the salaries of the Applicant’s District Councillor Assistants (“Assistants”)  during the Election Campaign

12.  This is one of the Correction Relief sought under sections 40(3)  and (4)  of the ECICO.

13.  At the time of the Election Campaign, the Applicant was an incumbent District Councillor.

14.  Given the incumbency, some of the District Council expenses (“District Council Expenses”)  might overlap or might be seen to overlap with the Applicant’s election expenses during the Election Campaign.  Such expenses related to the rent of his office, salaries of his two Assistants, electricity charges, and internet fees.

15.  As explained by the Applicant in A/1^{st [3]}, and to err on the safe side, the Applicant intended to allocate 30% of the District Council Expenses incurred during the Election Campaign as his election expenses.

16.  That intention of the Applicant has been implemented, and is supported by documents:

(a)  At Section E, Item 1 of the Original Election Return[4], he put down 30% of his office rent, electricity charges and internet fees as part of his election expenses;

(b)  His written notification and claim[5] to the District Council for only 70% of the District Council Expenses (including the salaries for his two Assistants)  during the Election Campaign, so that 30% would be borne by himself and regarded as part of his election expenses.

17.  In A/1^st, the Applicant offers his explanations on the matter.  He said that he had spent time on the Election Campaign.  He had as a result some backlog which he needed to finish right after the 2019 DC Election.  He only came back to prepare the Original Election Return around late December.  He filled in Part 1 of Section E according to the specified “Particulars of Services/Goods” (namely “Rental”, Address”, “Stationary”, “Postage” and “Other office expenses”).  He did put down 30% of rental, electricity charges and internet fees.  The inclusion of 30% of the salaries of his two Assistants slipped his mind.

18.  Even upon inclusion of those salaries, the Applicant’s total election expenses (HK$50,062.33)  remain well below the permissible maximum (of HK$68,800).

19.  I am satisfied on the evidence that the Applicant’s failure to include 30% of the salaries of his two Assistants was the result of inadvertence, and was not due to bad faith.

20.  I allow the Applicant’s claim for relief under this head.

The Exemption Relief

21.  The Exemption Relief relates to the invoices and receipts with respect to the District Council Expenses.  Neither the originals nor copies of those invoices and receipts were submitted under the Original Election Return.

22.  In relation to the electricity charges and internet fees, as the amounts were below HK$500, their invoices and receipts were not required to be submitted under section 37(2)(b)(i)  of ECICO.

23.  In respect of the office rent and salaries of the two Assistants, the Applicant seeks exemption under sections 40(5)  and (6)  of the ECICO.

24.  The Applicant explains in A/3^rd that in relation to those invoices, he kept the originals for production to the District Council for reimbursement.  Mr Lee relies on that as a reasonable cause for the relief sought.

25.  On the evidence, I am satisfied that the Applicant did submit the originals to the District Council for reimbursement.

26.  Copies have now been produced.

27.  I am satisfied that there has been no bad faith.

28.  On the facts of this case, I grant the Exemption Relief sought.

Other miscellaneous errors

29.  As part of the Correction Relief, the Applicant also seeks relief in relation to the following matters:

(a)  Correction of the sub-total of expenses under “Section D5 – Banners”:

(i)  In Section D5 of the Original Election Return, the Applicant particularized three Banners in the amounts of HK$4.17, HK$2,400, and HK$1,600;

(ii)  Invoices and receipts were provided;

(iii)  The Applicant stated the sub-total as being “HK$4,004.1”.  Ms Poon points out in Poon/Aff that it should have been “HK$4,004.17”;

(iv)  The difference is HK$0.07;

(v)  I am satisfied that the error was inadvertent, and was not made in bad faith;

(b)  Submission of a new receipt with reference number B002879 for “Section D8 – Others”:

(i)  At “Section D8 – Others”, the Applicant declared an expense of HK$1,560 for 6 roll-up banners.  An invoice and a receipt were provided;

(ii)  As Ms Poon has pointed out in Poon/Aff, the reference number of the receipt provided (B002878)  however did not match the reference number (B002879)  on the invoice;

(iii)  In A/2^nd, the Applicant explains that he has checked with the printing company.  He has been told that the discrepancy was a clerical mistake.  The printing company has issued a new receipt to him with the correct reference number.  He has now produced that new receipt;

(iv)  On the evidence, I am satisfied that the error was clerical, and was due to inadvertence of the printing company which the Applicant overlooked;

(v)  I am satisfied that there was no bad faith;

(c)  Inclusion of Samples EA(I)  and EA(II)  at page 7 and Sample EA(III)  at page 10 of the Original Election Return:

(i)  Ms Poon points out that the Applicant had submitted samples of election advertisements onto the Central Platform, but that they were not declared in the Original Election Return;

(ii)  The Applicant explains in A/2^nd that two of the samples were ultimately not used.  He thought that he did not need to declare them.  In respect of the other, they were handmade placards created by gluing the Applicant’s election posters (the expenses of which the Applicant did declare)  onto reused cardboards without additional expenses.  He mistakenly believed that he did not need to declare them in the Original Election Return;

(iii)  As those matters were the results of deliberate decisions, the Applicant cannot rely on “inadvertence”.  However, and on the facts of this case, I am satisfied that “reasonable cause” for his correction under section 40(4)(c)  of ECICO has been established;

(iv)  I am satisfied that no bad faith was involved;

(d)  Correction of the electricity charges under “Section E1 – Rental and office expenses”:

(i)  Ms Poon points out in Poon/Aff that the Applicant had miscalculated the electricity charges concerned;

(ii)  I accept the explanations provided by the Applicant that the mistakes were the result of inadvertent mis-calculation of the figures.  The mistakes in fact resulted in an over-statement of the charges concerned;

(iii)  I am satisfied that there was no bad faith involved.

Consequential adjustments

30.  Finally, the Applicant seeks to correct and adjust the sub-totals and overall figures as a result of the matters discussed above.  They are consequential corrections and adjustments.

Overall disposition

31.  It has been emphasized times and again by the Courts that it is very important for candidates in any election to comply with their statutory duties most seriously.  The solemnity of elections demands that.

32.  Without derogating from the above, on the facts of the present case, and for the reasons set out above, I am satisfied that the Applicant has made out a case for relief.

33.  I grant an Order in terms of the AOS for both the Correction Relief and Exemption Relief.

Costs

34.  The Secretary for Justice seeks costs.  I accept Ms Shum’s submissions that the present application has only become necessary because of the Applicant’s inadvertence and errors.  The Applicant is seeking the Court’s indulgence.  In the circumstances, I order the Applicant to pay costs of the application which I summarily assess at HK$28,002.00 (as per the Statement of Costs of 27 August 2021 attached to Ms Shum’s Submissions), to be paid by the Applicant within 28 days from the date hereof.