LAU TSZ CHUN v. SECRETARY FOR JUSTICE for and on behalf of CHIEF ELECTORAL OFFICER OF REGISTRATION AND ELECTORAL OFFICE

HCMP 1508/2022

[2023] HKCFI 297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1508 OF 2022

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D  E  C  I  S  I  O  N

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A.  Introduction

1.  The Applicant was a candidate in the 2021 Legislative Council General Election (“2021 Election”) which was held on 19 December 2021. He was disqualified from running in the election at an early stage and did not occur any expenses nor receive any donation as a candidate. Nonetheless, he was still required by section 37 of the Election (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”) to lodge an election return to declare his election expenses and donations within the statutory period. His election return would be a ‘nil return’.

2.  The Applicant claims that he posted his election return by the statutory deadline, being 22 February 2022. But the Registration and Electoral Office (“REO”) has never received it.

3.  In any event, by summons filed on 10 October 2022, the Applicant now seeks relief from the Court to allow him to lodge an election return out of time pursuant to section 40(1) of the ECICO and to be relieved from any criminal liability that may arise from the apparent non-compliance.

4.  The Secretary for Justice (“SJ) takes a neutral stance. But the REO has filed an affirmation to draw the Court’s attention to factual matters relevant to this Application. Mr Alvin Hor, Government Counsel, has filed short skeleton submissions on behalf of the SJ, confined to the question of costs. The Applicant has filed an affirmation and has the benefit of the written submissions filed by Ms Mathilda Kwong of Counsel.

5.  The parties have agreed for this application to be dealt with on paper.

6.  This is my Decision.

B.  Background facts

7.  The Applicant was born in 1988 and is now 34 years of age. He is a nurse by profession and currently works in the psychiatry department of a local hospital.

8.  He may be called a ‘political novice’. He had no prior election experience, either as a candidate or in any supporting role. He had no political affiliation and did not receive any organizational assistance. He did not engage any legal professionals to assist him in the process.

9.  The nomination period for the 2021 Election ran from 30 October 2021 to 12 November 2021. In early November 2021, the Applicant submitted his nomination form to stand as a candidate in the Medical and Health Services Functional Constituency. However, on 21 November 2021, he was notified by the REO by letter that he was disqualified from standing in the election. As said, the Applicant did not incur any expenses nor receive any election donations.

10.  However, having submitted his nomination form and thus having publicly declared his intention to stand in the election, the Applicant still fell within the definition of a “candidate” under section 2 of the ECICO and was required to lodge an election return under section 37.

11.  The result of the 2021 Election was gazetted on 24 December 2021. By operation of sections 37(1B) and 37(1C), a candidate would have to have lodged an election return within 60 days from the gazette date. Thus the statutory deadline for lodging the return fell on 22 February 2022.

12.  The Applicant recalls that he had made a call to the REO in about early December 2021, enquiring about the return of the election deposits and the procedures for filing the election return. In about mid-December 2021, he made another call to the REO to enquire about the relevant “documentation reference” (I suppose he refers to documentation references either relevant to the returning of election deposits or the lodging of the election return). The Applicant did not provide the exact telephone number he had dialled, and the REO says that its enquiry hotline has no record of these two calls.

13.  The REO issued 4 reminders to the Applicant by letter, email or phone call, reminding him of the obligation to lodge the election return on or before 22 February 2022. The Applicant confirms that he had received all the reminders:

(1)  On 28 December 2021, the Applicant says, he had received a reminder letter from the REO informing him that he had to lodge the election return on or before 22 February 2022, either by personally attending the REO’s office or by post. The Applicant says it was the first time the importance of the election return was impressed upon him. He read through the letter himself and understood the content.

(2)  On 14 February 2022, he received a reminder email to the same effect.

(3)  On the same day, he also received a reminder call from a staff member of the REO.

(4)  On 21 February 2022, the Applicant received an email from the REO, informing him that the REO’s office would be closed for disinfection because of a suspected Covid-19 case. A document collection counter would be maintained outside the REO’s office during office hours for collection of election returns on 22 February 2022.

14.  In the Applicant’s affirmation, he says that he had sent his election return to the REO’s office by post within a few days after he had received the reminders on 14 February 2022.

15.  However, on 3 March 2022, he received a call from the REO, apparently concerning the filing of the election return. In his affirmation, the Applicant says he had informed the REO staff that he had already lodged the return before 22 February 2022 by post. He believed the Covid-19 situation could have caused delay to the postal service so he told the caller so. The Applicant says he also told the caller to revert to him if they failed to receive his election return, and the caller said the REO would call him back if they still failed to receive the return. The Applicant did not receive any calls from the REO after the 3 March call. As such, he says, he believed that that the REO had already received his election return.

16.  In the REO’s affirmation, the REO exhibited a log sheet which recorded reminder calls made to the Applicant concerning submission of the election return. Both the calls made on 14 February 2022 and on 3 March 2022 were recorded:

(1)  For the 14 February call, the caller from REO recorded the Applicant was reminded to lodge the election return. The Applicant confirmed that he understood that and asked if the REO could provide the “draft” of the election return and the called told him to download from the official website. (I supposed “draft” refers to some sort of a template or the empty form of the election return.)

(2)  For the 3 March call, the caller recorded that the Applicant clearly indicated that he had already inserted his election return into a post box in the Wan Chai district at around 5pm to 6pm on 22 February 2022. It was also said in the REO’s affirmation that the caller of the 3 March call confirmed that he or she did not inform the Applicant that the REO would call again if they still failed to receive the Applicant’s election return. The caller of course did not record in the log sheet what he or she did not say. (It can be noted that there is some degree of inconsistency between the Applicant and the REO as to what was said in the 3 March call.)

17.  On 6 July 2022, the Applicant was approached by the ICAC for his failure to lodge the election return.

18.  The REO’s affidavit evidence shows that the Applicant then made 2 calls to the REO’s enquiry hotline on 11 July 2022 and 29 July 2022 respectively. In the first call the Applicant explained that he had been approached by the ICAC for failure to lodge the election return and explained that maybe the postal delivery had gone wrong. He had instructed a lawyer to handle the matter and asked about the documents he would now have to submit. The second call was to check the exact date of the 3 March call.

19.  The REO says that amongst all the candidates in the 2021 Election, the Applicant was the only one who failed to loge the election return by the statutory deadline.

C.  Whether to Grant Relief

20.  Section 40(1) of the ECICO empowers the Court to grant relief for failure to comply with section 37, which requires a candidate to lodge an election return within the statutory period.

21.  Section 40(2) provides that the Court may grant relief but only if it is satisfied that the non-compliance was due to: (a) the applicant’s illness or absence from Hong Kong; or (b) the death, illness, absence from Hong Kong or misconduct of an agent or employee of the applicant; or (c) inadvertence or an accidental miscalculation by the applicant or any other person; or (d) any reasonable cause, and that the failure was not due to the applicant’s bad faith. Satisfying one of the four limbs in (a) to (d) and the lack of bad faith are two separate requirements.

22.  For the first requirement, the Applicant relies on the “inadvertence or an accidental miscalculation limb” and the “any reasonable cause” limb. I shall shorthand them as the “inadvertence” limb” and the “reasonable cause” limb.

23.  I have summarized the applicable principles guiding the Court’s exercise of discretion in a section 40 application in Tse Wing Chi v Secretary for Justice [2021] HKCFI 3473, at §§18-19 and at David Ho v Secretary for Justice [2022] 2 HKLRD 76 at §59-71. Relevant to the inadvertence limb and the reasonable cause limb are the following:

(1)  The word “inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith.

(2)  “Inadvertence” suggests a lack of deliberateness. Where a deliberate decision has been made to exclude an item from an election return, the applicant cannot rely on the inadvertence limb.

(3)  A candidate who has displayed a wholesale disregard of his obligations to comply with his duties imposed by election laws could not rely on the inadvertence limb. There is a distinction between a candidate who simply turned a blind eye or acted recklessly as to the legal requirements and a candidate who had tried but failed to correctly understand the legal requirements. This is tied in with a candidate’s duty to familiarise himself with his election duties and to take reasonable steps to fulfil their legal obligations as a candidate.

(4)  The Court must exercise its discretion in a manner consistent with the integrity of the election legislation, and thus there must be a limit on the degree of carelessness and negligence as would satisfy the threshold, even in the absence of bad faith.

(5)  If the candidate could not rely on the inadvertence limb, it would still be open for him to rely on the “reasonable cause” limb.

(6)  Though the wording of that limb is “any reasonable cause”, and not “any other reasonable cause”, the “reasonable cause” encompassed by the limb must be other than (that is, in addition to) those causes identified in section 40(2)(a)-(c). It is also trite that an act may be performed either reasonably or unreasonably, even if performed in good faith.

24.  In the Applicant’s written submissions, Ms Kwong emphasises that in the reminder letter dated 28 December 2021, the REO’s position was that the Applicant could meet his duty by sending the election return by post on or before 22 February 2022. That message was also consistently delivered by the subsequent reminders given by email and by phone call on 14 February 2022. Ms Kwong’s point seems to be that whilst postal delivery is not a fail-proof method of compliance – as opposed to, say, personal delivery – it is nonetheless a method expressly permitted by the REO. Ms Kwong submits that the Applicant honestly believed the election return which he had posted on 22 February 2022 would have reached the REO, and that the inadvertence lay in the Applicant’s failure to take into account that postal accidents could occur.

25.  Ms Kwong also submits that it was not within the Applicant’s reasonable contemplation that the REO would not call again when they eventually did not receive the Applicant’s election return. She further suggests that the inadvertence also lay in the Applicant’s failing to follow-up with the REO to ensure the that his election return had been duly received.

26.  On the materials, I accept that the Applicant did post his election return on or before 22 February 2022. The evidence on the exact date he had done so is not entirely consistent – “within a few days” from 14 February 2021 as stated in his affirmation filed on 10 October 2022, as opposed to “around 5pm to 6pm on 22 February 2022” in the REO’s record of what the Applicant had said in the 3 March call. But what is important is the Applicant has and had consistently maintained his claim that he had already posted his election return by the statutory deadline. I accept that all along he had held the honest belief that that he had complied with his legal obligation to lodge an election return, until he was informed otherwise by the ICAC in early July 2022. In the premises, it seems that the probable explanation is that somehow the post containing the Applicant’s election return was lost in the delivery process.

27.  Section 37(1) provides that each candidate “must lodge with the appropriate authority an election return”. Section 37(1B) provides that “the candidate must ensure that the return is lodged before the expiry [of the statutory period]”. The duty to ensure that an election return is lodged with the REO within the statutory period falls squarely on the candidate.

28.  A prudent candidate may perhaps adopt safer methods than ordinary post, such as personal delivery to the REO’s office or registered post. If one adopts ordinary post, he or she may call the REO to check if the post has been received.

29.  In this case, a prudent candidate may also not have waited until the late afternoon of 22 February 2022 to insert his election return into a post box. A person with some experience living in Hong Kong would know it normally takes a day or two for post to be delivered within Hong Kong. Indeed, an item inserted into a post box at around 5pm to 6pm might only be collected the next day and thus might also miss the requirement stated in the REO’s 28 December 2021 reminder letter – that of bearing a stamp mark or franking on or before 22 February 2022.

30.  But I think that when the Applicant’s course of conduct is viewed against the entire circumstances, the non-compliance could be properly attributed to inadvertence:

(1)  Whilst the exact date remains unclear, the evidence strongly points towards that the Applicant did, by no later than the late afternoon of 22 February 2022, post his election return into a post box. He held the honest belief that the election return would reach the REO in due course. He did genuinely believe that he had already complied with his statutory duty before he was contacted by the ICAC.

(2)  Although the election return did not reach the REO at the end, generally one who has posted a document by ordinary post is entitled to expect that the post will reach the addressee in the ordinary course of postal delivery. It was reasonable for the Applicant to expect that his election return would reach the REO within one or two days, i.e. by around 24 February 2022 at the latest depending on the exact date he posted the return.

(3)  It is not necessary to decide if a candidate could meet the statutory deadline if the election return is only posted to – rather than has reached – the REO by the statutory deadline. The premise of this application is that the Applicant had failed to comply with section 37. I bear in mind that the Applicant’s own affidavit evidence is that he posted the election return within a few days from the 14 February call, and that the REO said so itself that it would accept as compliance as long as the post bore a stamp mark of no later than 22 February 2022.

(4)  This is not a case of wholesale disregard or turning a blind eye to the legal duties as a candidate. On top of the attempted compliance by sending the election return by ordinary post, the evidence also reflects that the Applicant had made enquiries with the REO on how he could fulfil his duty on lodging an election return.

(5)  I also take into account that the Applicant was a political novice with no election experience nor organizational support from any political affiliation, albeit I have only given this factor little weight.

31.  Alternatively, Ms Kwong also says that the intervening event of the Covid-19 situation at the REO’s office, coupled with the postal accidents and the miscommunications with the REO all contributed to the eventual failure to comply with section 37. Ms Kwong invites this Court to take the supervening events leading to the non-compliance as a reasonable cause.

32.  But I cannot see how the Covid-19 situation at the REO’s office is relevant to the Applicant’s failure. The REO had arranged a collection counter for those who would personally attend the REO’s office on 22 February 2022 for lodging the election return. In any event, that was not the route taken by the Applicant. Nor is “miscommunications with the REO” a settled description of the situation if she refers to the fact that the REO did not call back about not receiving the election return. The REO’s own evidence was that the REO’s caller did not say they would call again should they fail to eventually receive the Applicant’s election return. One must bear in mind that the duty to ensure the election return is lodged with the REO falls on the candidate.

33.  However, since I have already found that the Applicant did post his election return no later than 22 February 2022, it follows that the post must have somehow gone astray and did not reach the REO. Since the Applicant did not hear from the REO after the 3 March call, it was also reasonable for him to expect the post had eventually reach the REO. I am satisfied that these could amount to a reasonable cause within the meaning of section 42(2).

34.  There is no evidence suggesting bad faith on the Applicant’s part. Indeed, the evidence shows that the Applicant was aware of his legal obligation as a candidate and did attempt to fulfil his obligation.

D.  Disposition

35.  The Application is allowed. The Applicant should lodge an election return with the REO within 7 days. For the avoidance of doubt, the Applicant is not liable to be convicted for failing to comply with section 37 unless he should still fail to do so within the further period as granted by this Court.

E.  Costs

36.  Since the Applicant sought the indulgence of this Court to lodge an election return out of the statutory period, the usual costs order is that the Applicant should bear the SJ’s costs.

37.  Ms Kwong seems to suggest that the REO was also partly responsible for the non-compliance. She says the failure was a combined result of unexpected postal accident and miscommunication between the REO and the Applicant. She says the failure could have been avoided had either the REO and/or the Applicant reached out to each other earlier for communication and better procedures could have been adopted by the REO.

38.  Mr Hor submits that there is no good reason to depart from the usual approach. The REO had dutifully reminded the Applicant to lodge his return by the statutory deadline by letter, email and phone call on 28 December 2021, 14 February 2022 and 21 February 2022. Arrangements had also been made on 22 February 2022 to handle the temporary closure of the REO’s office due to a suspected Covid-19 case. The fact that all of the 2021 Election candidates had managed to lodge their returns by the statutory deadline renders any argument to shift blame to the REO unpersuasive.

39.  I agree.

40.  The duty to ensure timely lodging of the election return was solely the Applicant’s. It was not the duty of the REO to help the candidate to meet his statutory duties. The Applicant has not yet established any factual basis of “miscommunication” if Ms Wong means to say that the REO had promised to call the Applicant should they still failed to receive his election after the 3 March call. As said, such promise was denied by the REO. In the absence of such promise, I cannot see why the REO should be obliged to call the Applicant again to chase after his election return. Anyway, that would have been after the deadline had passed.

41.  By reference to a statement of costs, Mr Hor claims those costs to be summarily assessed at HK$14,351.00. In the overall exercise of my discretion and adopting the usual approach to summary assessment, I award the SJ costs in that sum.