LAU WING HONG v. CHAN YUEN MAN, AMY (Returning Officer for the New Territories East Geographical Constituency) AND ANOTHER

HCAL 844/2018

[2018] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 844 OF 2018

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DECISION

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INTRODUCTION

1.  I have before me three summonses: -

(1)   the Petitioner’s ex parte summons dated 15 May 2018 (“the Ex Parte Directions Summons”) seeking an order that his obligation to give security as required by Section 66 of the Legislative Council Ordinance, Cap 542 (“the Ordinance”), be waived;

(2)   the Petitioner’s inter partes summons dated 21 May 2018 (“the Inter Partes Directions Summons”) seeking (i) leave to withdraw the Ex Parte Directions Summons; and (ii) an order that his obligation to give security as required by Section 66 of the Ordinance be dispensed with; and

(3)   the Petitioner’s inter partes summons dated 6 June 2018 (“the Time Extension Summons”), a draft of which was handed up by Mr Marwah on behalf of the Petitioner to the court at the hearing on 6 June 2018, seeking (i) an extension of time for the Legal Aid Department to pay the security of HK$20,000 for the Petitioner, or (ii) an extension of time for the Petitioner to file the Inter Partes Directions Summons.

In what follows, references to Sections shall be to the Ordinance.

BASIC FACTS

2.  The Petitioner was a prospective candidate at the 2018 Legislative Council By‑election for the New Territories East Geographical Constituency (“the By-election”).  According to the Petitioner, on 25 January 2018, he attended the offices of the Returning Officer and submitted his nomination form, duly signed and completed and including the declaration required by Section 40(1)(b)(i) to the effect that he “will uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region”.

3.  On 31 January 2018, the Returning Officer issued a Note of Decision as to Validity of Nomination informing the Petitioner that his nomination as a candidate at the By-election was invalid, on the ground that she was not satisfied that the Petitioner genuinely and truly intended to uphold the Basic Law of the HKSAR and pledge allegiance to the HKSAR and that he had duly complied with Section 40(1)(b)(i) in making the aforesaid declaration, without having given the Petitioner any prior opportunity to address the Returning Officer’s concerns or explain the matters relied upon by the Returning Officer in coming to her conclusion.  The Petitioner contends that there were multiple material irregularities resulting in his nomination being determined to be invalid.

4.  For the present purposes, it is not necessary for me to set out the Returning Officer’s reasoning process which led to her conclusion that the Petitioner’s nomination as a candidate at the By-election was invalid, or the alleged material irregularities relied upon by the Petitioner, save to mention that the grounds relied by the Petitioner in support of this Election Petition are, in my view, reasonably arguable.

5.  On 11 March 2018, the By-election took place. On 16 March 2018, the Returning Officer published in the Gazette a notice declaring that Mr Fan Kwok-wai Gary (“Mr Fan”) was elected as a member of the Legislative Council for the New Territories East Geographical Constituency.

6.  On 11 May 2018, legal aid was granted to the Petitioner to pursue the present Election Petition, and Messrs Daly Ho & Associates (“DHA”) were assigned as solicitors to act for the Petitioner.  On 14 May 2018, counsel were assigned to act for the Petitioner.

7.  On 15 May 2018, the Petitioner lodged the Election Petition, and gave Notice of Lodgement of Petition to the Returning Officer, Mr Fan and the Secretary for Justice.  In the Notice, it was stated that “the Petitioner is aided by the Legal Aid Department in these proceedings and would seek Order from the Court to waive the requirement to give security as required by section 66 of the Legislative Council Ordinance (Cap 542)”.

8.  On 15 May 2018, the Petitioner took out the Ex Parte Directions Summons seeking an order that his obligation to give security as required by Section 66 be waived.

9.  On 17 May 2018, the court wrote to the Petitioner’s solicitors asking the Petitioner to justify why the said application could be made by way of an ex parte summons.

10.  On 21 May 2018, the Petitioner’s solicitors wrote to the court stating that after further reviewing the matter with counsel, it was acknowledged that a mistake had been made in lodging the said application by way of an ex parte summons, and that the application for dispensing with the requirement of giving security for costs should instead be made by way of an inter partes summons.  Accordingly, the Inter Partes Directions Summons was taken out to rectify the mistake.

11.  On 24 May 2018, the Department of Justice drew DHA’s attention to the fact that the Inter Partes Directions Summons was issued out of time and asked DHA whether any affirmation in support of the Inter Partes Directions Summons had been filed by the Petitioner.

12.  On 29 May 2018, the Department of Justice invited DHA to file an affirmation or affirmations to explain (i) why no application for extension of time to apply for directions was made; and (ii) the delay in taking out the Inter Partes Directions Summons.

13.  By a letter dated 30 May 2018, DHA responded, or purportedly responded, to the matters raised by the Department of Justice.

14.  The Ex Parte Directions Summons and Inter Partes Directions Summons came before this court on 6 June 2018.  At the hearing, Mr Marwah handed up a copy of the Time Extension Summons and informed the court that it would be issued on the same date and asked the court to deal with the application at the same time.  Ms Chung (for the Returning Officer) did not object to the Time Extension Summons being dealt with by the court together with the other two summonses, but opposed the extension of time sought by the Petitioner.

DISCUSSION

15.  Section 66 states as follows:-

“(1) Within 5 days after lodging an election petition in the Court, or within such other period as the Court directs, the petitioner must give security for all costs that may become payable by the petitioner to any witness who gives evidence in the proceedings on the petitioner’s behalf or to any respondent.

(2) The amount of security to be given under this section is to be of such amount, not exceeding $20,000, as the Court directs. That amount is to be provided in such manner and form as the Court directs.

(3) An election petition is taken to have been withdrawn if this section is not complied with.”

16.  Rule 6 of the Legislative Council (Election Petition) Rules, Cap 542F, provides that:-

“The petitioner shall, within 2 days of the lodgement of the petition or such other period as the Court may direct, serve on the respondent and the Secretary for Justice, notice of the lodgement of the petition and the nature of the security for costs which the petitioner proposes to give in accordance with section 66 of the Ordinance, together with a copy of the petition.”

In what follows, references to Rules shall be to the Legislative Council (Election Petition) Rules.

17.  Rule 7 further makes provisions regarding the manner of application for the court’s directions under Section 66(2), as follows:-

“(1) Application to the Court for directions under section 66(2) of the Ordinance shall be made by the petitioner by summons to a judge in chambers at the time of lodging the petition, or within 2 days thereafter or such other period as the Court may direct.

(3) Subject to subrule (4), all applications under subrule (1) shall be made by inter partes summons, the return day of which shall be not later than 5 days after the lodgement of the petition or the expiry of such other period as the Court may direct for giving security under section 66(1) of the Ordinance.

(4) Where the petitioner proposes to give the maximum amount of security that may be directed under section 66(2) of the Ordinance, and proposes to give such amount by the deposit of money to that extent, an application for directions that the security be given in such maximum amount and by the deposit of money, may be made by ex parte summons, and the Registrar shall by endorsement on the summons order the petitioner to appear at the time and place directed by the Registrar, being not later than 5 days after the lodgement of the petition.”

18.  The meaning and effect of similar provisions relating to District Council election were considered by To J in Yip Yiu Shing Chris v Chan Yuk Ming, HCAL 8/2016 (26 February 2016):-

“[4] The Ordinance and the District Councils (Election Petition) Rules (the ‘Rules’) specified the procedural steps to be taken by a petitioner who wishes to question an election and the time limits within which such steps are to be taken. There are only three simple steps.

[5] The first step is to lodge an election petition pursuant to section 50 of the Ordinance. The petition must be lodged within two months following the date on which the Returning Officer published the result of election in the Gazette. The section does not give the court any discretion to extend the time limit.

[6] Second, pursuant to rule 6 of the Rules, the petitioner has to serve on the respondent and the Secretary for Justice, a notice of the lodgement of election petition and the nature of the security for costs which the petitioner proposes to give in accordance with section 54 of the Ordinance. The petitioner only has two days to serve the notice.

[7] The third step is to give security for costs. Section 54(1) of the Ordinance provides that within five days after lodgement of an election petition, the petitioner must give security for all costs that may become payable by him to any witness who gives evidence in the proceedings on his behalf or to any respondent. The amount of security to be provided, which shall not exceed $20,000, and the manner and form in which it is to be provided shall be determined by the court. For the purpose of seeking that direction, rule 7(1) provides that the petitioner shall apply by inter partes summons to a judge in chambers at the time of lodging the election petition or within two days thereafter. However, rule 7(4) provides a simpler procedure for petitioners who are prepared to give the maximum amount of security, ie $20,000 by depositing cash in court. He may apply by ex parte summons and the Registrar shall order his attendance before the Registrar within not later than five days after the lodgement of the election petition.

[8] In short, a petitioner shall give security for costs, being not more than $20,000 within five days of his lodgement of the election petition. If he is prepared to pay the maximum amount of security in cash, he may apply by ex parte summons to the Registrar to make payment in court. If he wishes to seek direction for giving security in a lesser sum or otherwise than in cash, he has to apply by inter parte summons to a judge in chambers at the time he lodges his petition or within two days thereafter. The court has jurisdiction to extend the time limit in respect of these applications. It would be expedient to adopt the ex parte procedure.

[9] Under section 54(3), if security is not given, the petition is taken to have been withdrawn.  When the above three steps are completed, the petitioner shall within 28 days of giving security apply, pursuant to rule 10, by summons to a judge for a time and place to be fixed for the trial of the election petition.  Failing that, the respondent may within seven days thereafter make the application.”

19.  The above analysis is equally applicable to an election petition lodged under the Ordinance.  In summary:-

(1)   The petitioner is required to –

(a)   take out a summons at the time of lodging the petition, or within 2 days thereafter, for the court’s directions as regards the amount, manner and form of the security; and

(b)   give the security as directed by the court within 5 days of lodging the election petition.

(2)   The application referred to in (1)(a) above should be made by way of an inter partes summons, unless the petitioner proposes to give security in the amount of HK$20,000 by deposit of money in which event the application may be made by way of an ex parte summons.

(3)   The time limits referred to in (1)(a) and (b) above may be extended by the court.

(4)   In default of the obligation to give security as required by Section 66(1), the election petition is taken to have been withdrawn.

20.  In the present case, it is clear that the Petitioner’s application for directions under Section 66(2), namely, a waiver of his obligation to give security, ought to have been made by way of an inter partes summons because the Petitioner was not proposing to give security in the amount of HK$20,000 by deposit of money.  It follows that the Ex Parte Directions Summons was incorrectly issued.

21.  The Petitioner sought to rectify that mistake by issuing the Inter Partes Directions Summons, but it was only issued on 21 May 2018, which was later than 2 days after the time of lodging the Election Petition.  Mr Marwah accepts that there was still time for the Petitioner to issue the Inter Partes Directions Summons on 17 May 2018 upon being alerted by the court on that day that the application for directions ought to have been made by way of an inter partes summons.  However, the Petitioner did not issue the Inter Partes Directions Summons until 21 May 2018, apparently because time was taken by DHA to seek advice from counsel and counsel were not available to advise on the matter promptly or in good time.

22.  The Inter Partes Directions Summons was made returnable on 6 June 2018.  The return date of the Inter Partes Directions Summons should, where possible, be not later than 5 days after the lodgement of the petition pursuant to Rule 7(3) of the Rules.  Be that as it may, in view of the fact that the Inter Partes Directions Summons was returnable only on 6 June 2018, should the court decide to order the Petitioner to give security, the Petitioner would be out of time in giving the security under Section 66(1), which requires such security to be given within 5 days after lodging the petition in the court (unless the court directs otherwise).

23.  Accordingly, the Petitioner required an extension of time to apply for directions as regards the amount, manner and form of the security and/or give such security as may be directed by the court.  The Petitioner did not apply for any extension of time until Mr Marwah indicated at the hearing on 6 June 2018 that the Petitioner would take out the Time Extension Summons.  As mentioned above, the Returning Officer did not object to the court dealing with the Time Extension Summons together with the other two summonses.

24.  The central issue for determination is whether the court ought to extend the time for the Petitioner to apply for directions as regards the amount, manner and form of the security and/or give such security as may be directed by the court.

25.  In relation to the principles for granting an extension of time in this context, Ms Chung has drawn my attention to the following passages in the decision of To J in Yip Yiu Shing Chris, ante:-

“[10] These are simple rules. They impose very tight time limits. There are good reasons. Election petitions are taken out to challenge the result of a District Council election. For the District Council to be able to function efficiently, it is important that there is finality in the election. It cannot be left for an unduly long period of time in an uncertainty as to whether an elected member, ie the respondent, would be successfully challenged. That apart, the respondent who is being challenged has to prepare his case; identify, locate and interview his witnesses; take witness statements; collect exhibits; collate evidence, etc. He has to do so before witnesses and exhibits disappear or otherwise become unavailable or could not be located. Usually, the petitioner who initiates a petition has a good head start and the respondent is at a disadvantage. This makes time all the more of importance to the respondent. That is why the Ordinance and the Rules impose very tight time limits and anticipate petitioners to prosecute their election petition regularly and with due diligence.

[13] While the court has discretion under the Rules to extend time limits, such discretion should be exercised in accordance with legal principles.  It should be sparingly exercised and only for good reasons. Usually leave to serve a notice out of time has to be obtained before the time limit expires.  Retrospective leave may be granted only under unforeseen and rare circumstances.  Ignorance of the procedures and time limits under the Rules is not a good reason.  People who engage in such sort of election activities must have informed themselves about the rules of the election and the rules of challenging it.  After all, there are but a few simple rules to comply with.”

26.  Ms Chung has also referred me to the recent decision of Au J in Lo King Yeung v Eddie Chu Hoi Dick, HCMP 482/2017, 31 July 2017, where the learned judge (in the context of a similar obligation to give security in disqualification proceedings brought under Section 73) stated the following:-

“[23] As Mr Ma fairly accepts, ignorance of the law generally does not amount to a good excuse to justify a default in time. Hence, in Yip Yiu Shing Chris v Chan Yuk Ming (unreported, HCAL 8/2016, 26 February 2016, To J), where the petitioner in an election petition case sought an extension time to ask for directions to give security for costs, To J observed at paragraph 13 as a general principle in guiding the exercise of discretion to grant an extension of time that ‘[i]gnorance of the procedures and time limits under the Rules is not a good reason…’.

[24] If ignorance of the law cannot be regarded as a good excuse or reason, I cannot see how a mistake of law as alleged in the present cases can be accepted as a good reason to excuse a delay.  The mere fact that the mistake was made by the solicitor but not the plaintiff personally does not by itself amount to a sufficiently good reason to justify an exercise of discretion to extend time to the plaintiff.”

27.  In the present case, the Petitioner’s failure to apply for directions and/or give security within the relevant time limits is the result of a combination of two factors: (i) a mistake of law on the part of the Petitioner’s legal adviser(s) as regards the correct form or manner of the application for directions, and (ii) a failure on the part of the Petitioner’s legal adviser(s) to act promptly upon being alerted by the court that the original application for directions by way of the Ex Parte Directions Summons was incorrectly issued.  Neither reason could be regarded as a good excuse for the delay or a good reason for the court to exercise its discretion to extend time.

28.  These having been said, the overriding consideration in determining whether to grant an extension of time must, in my view, be the interest of justice.  The following factors are relevant in the present case.  First, the delay here is for a short period of time only.  The Inter Partes Directions Summons was taken out on 21 May 2018, some 4 days beyond the time limit.  On the other hand, it may be noted that in Lo King Yeung, the application for directions was made some 4 months after the commencement of action.  Second, the Petitioner did attempt to apply, by way of the Ex Parte Directions Summons, for directions on the day of lodging the Election Petition, but mistakenly used an incorrect form of summons.  Third, in view of the fact that the Petitioner was at all material times, and is, legally aided, there are good reasons to dispense with the requirement of security being given by the Petitioner.  Fourth, the Returning Officer has not, in my view, suffered any real or substantial prejudice as a result of the delay which could not be compensated for by an appropriate order as to costs.  Fifth, the Petitioner’s case is, I consider, reasonably arguable.  Sixth, the issues raised by the Petitioner in this Election Petition, in particular the issue of whether the Returning Officer ought to have given the Petitioner a proper opportunity to address her concerns or explain the matters relied upon by her in coming to her conclusion that the Petitioner’s nomination was invalid before making her decision, are issues of general public importance.

29.  It seems to me that refusing to extend time here would, effectively, be punishing the Petitioner for mistakes made, or lack of diligence being exercised, by his legal adviser(s).  I do not consider that to be a proportionate response to the short delay in making the application for directions, and I am prepared to exercise my discretion to extend time in the Petitioner’s favour.

30.  On the question of security, I do not consider that there is any useful purpose in requiring the Petitioner to pay HK$20,000, or a lesser amount, as security for the costs that may become payable by the Petitioner to any witness who gives evidence in the proceedings on the petitioner’s behalf or to any respondent, because the Director of Legal Aid would obviously be able to pay the relevant costs on behalf of the Petitioner if ordered to be so by the court at the end of the day.  I consider that this is an appropriate case to dispense with the requirement of giving security by the Petitioner.

DISPOSITION

31.  In respect of the Ex Parte Directions Summons, I grant leave to the Petitioner to withdraw the same.

32.  In respect of the Time Extension Summons, I grant an extension of time retrospectively for the Petitioner to file the Inter Partes Directions Summons on 21 May 2018.

33.  In respect of the Inter Partes Directions Summons, I make an order directing that the obligation of the Petitioner to give security under Section 66 of the Legislative Council Ordinance, Cap 542, be dispensed with.

34.  On the question of costs, Mr Marwah fairly accepts that the Returning Officer should have the costs of these applications.  I order the Petitioner to pay the Returning Officer’s costs of and occasioned by the three summonses, including the costs of the hearing on 6 June 2018, to be taxed if not agreed.

35.  In so far as the Petitioner’s own costs are concerned, I am not minded to allow legal aid taxation, because those costs have been incurred as a result of what I regard to be elementary mistakes on the part of the Petitioner’s legal adviser(s) who have acted well below the standard that could reasonably be expected of reasonably competent lawyers.  In this regard, in addition to the mistake in using the incorrect form of application originally, there was a failure to apply for directions promptly on 17 May 2018 even though they had been alerted by the court of the mistake, and also a failure to apply for an extension of time to issue the Inter Partes Directions Summons until the hearing on 6 June 2018 notwithstanding the Department of Justice’s letters dated 24 and 29 May 2018 respectively.  In my view, the mistakes and shortcomings are quite inexcusable, and costs have been unnecessarily incurred and wasted.  However, in case there should be some other relevant matters which I am not aware of or which I ought to have taken into account in deciding whether to disallow legal aid taxation, the order disallowing legal aid taxation is an order nisi only, with liberty to the Petitioner or his legal advisers to apply for a variation of the same within 14 days from the date of this decision.