LAM POK (JIMMY) v. LEE HIN LONG (TIMOTHY LEE)AND ANOTHER

HCAL 247/2020
HCMP 1183/2020
(Heard together)

[2021] HKCFI 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 247 OF 2020

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1183 OF 2020

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BETWEEN

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(Heard together)

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JUDGMENT

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A. Introduction

1.  These proceedings arose from the 2019 District Council Ordinary Election for the Kowloon City District Council To Kwa Wan South Constituency (the “Constituency”) held on 24 November 2019 (the “Election”). Lee Hin Long (“R1”) was the elected candidate. Lam Pok (the “Petitioner”) was one of the unsuccessful candidates. 

2.  By an election petition dated 22 January 2020 (“the Election Petition”) taken out under HCAL 247/2020 and pursuant to section 49(1)(a)(ii) of the District Councils Ordinance (Cap 547)(“DCO”), the Petitioner challenges the election of R1. His case is that 5 election advertisements (the “5 EAs”) published by R1 in the course of the Election included false claim of support, so that R1 had engaged in illegal conduct contrary to section 27(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) (“ECICO”).

3.  Separately, by Originating Summons dated 10 August 2020 taken out under HCMP 1183/2020 (the “Originating Summons”), R1 seeks relief from this Court in relation to his publication of the 5 EAs.

4.  This Court has subsequently granted the Petitioner leave to intervene in HCMP 1183/2020, and has directed that the two actions be heard together.

5.  The Returning Officer, named as the 2^nd Respondent in the Election Petition (“R2”), adopts a neutral stance.

6.  Mr Randy Shek appeared for R1. Ms Sabrina Ho and Mr Jack Chan appeared for the Petitioner. Ms Vivian Kao of the Department of Justice appeared for the Secretary for Justice in HCMP 1183/2020.  The attendance of R2 has been excused.

B. The Election

7.  The Election was held on 24 November 2019. There were 3 candidates. The Petitioner, R1 and Ms Wong Yi Ting were respectively Candidates No. 1, 2 and 3.  Of the 3,809 valid votes, the Petitioner received 1,766 votes, R1 received 1,936, and Ms Wong Yi Ting 107.  The Petitioner lost to R1 by 170 votes, representing 4.46% of the total valid votes.

C. The 5 Election Advertisements

8.  The 5 EAs are:

(a) 1,000 copies of an election poster or handbill distributed (the “Posters”);

(b) an election email (the “Election Email”);

(c) an election vertical banner displayed (the “Vertical Banner”);

(d) a Facebook entry (the “Facebook Entry”); and

(e) a horizontal banner displayed (the “Horizontal Banner”).

9.  It is claimed that the 5 EAs included variably the names of some of 7 supporters (the “7 Supporters”). The EAs implied or likely to cause electors to believe that R1 had their support. It is the Petitioner’s case that R1 had before their publication, failed to obtain from any of the 7 Supporters written consent to the inclusion of their names in the same, in contravention of section 27(1) of the ECICO.

10.  The 7 Supporters are:

(a) Dr Simon Shen Xu Hui (“S1”);

(b) Mr Mo Kwan Tai Michael (“S2”);

(c) Mr Ramon Yuen Hoi Man (“S3”);

(d) Mr Cheung Man Lung Dennis (“S4”);

(e) Mr Wong Hok Lai (“S5”);

(f) Dr Lau Siu Lai (“S6”); and

(g) Mr Lau Yan Chun (“S7”).

11.  Images of the 5 EAs have been produced. There can be no dispute that each of them contained the names of one or more of the 7 Supporters. Their support of R1 can readily be inferred, if not actually explicit. Some relevant particulars may be tabulated as follows:

EA	Who of the 7 Supporters mentioned							First date of distribution / publication
Posters	S1	S2	S3	S4	S5		S7	24-11-2019
Election Email		S2	S3	S4	S5			23-11-2019
Vertical Banner		S2	S3			S6		25-10-2019
Facebook Entry		S2						20-11-2019
Horizontal Banner		S2	S3			S6		03-11-2019

12.  Tse Yik Ching, the Assistant Returning Officer of the Election, has confirmed that there are no records of submission of any “Consent of Support” form in respect of the 7 Supporters.  R2 has received three complaints against R1 for false claim of support, and has referred two to the law enforcement agency for investigation.

D. The relief sought

13.  By the Election Petition, the Petitioner requests the Court to determine whether R1 was duly elected, and if not, declare that R1 ceases to be an elected member of the District Council and that his office is vacant. 

14.  By the Originating Summons, R1 seeks:

(a) For his failure to seek prior written consent from S6 before publishing election advertisements including her support, relief be granted to him under section 31 of the ECICO for his failure to comply with section 27(1) of the ECICO, and

(b) For his failure to make available the written consents obtained from the other 6 of the 7 Supporters, relief be granted to him under section 107 of the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation (Cap.541F) (“EACR”) for his failure to comply with section 106(1) of the EACR.

15.  R1’s case for the relief, as summarized by Mr Shek, is that:

(a) In relation to S6:

(i) despite R1’s admission, Mr Shek nonetheless submits[1] that the WhatsApp messages between R1 and S6 constitute prior written consent, so that there was in fact no breach of section 27(1) of the ECICO;

(ii) if this Court does not accept the above, so that R1 has breached section 27(1) of the ECICO, the mistake was made inadvertently. There was written correspondence between him and S6 which show that consent had been impliedly given. Relief under section 31 of the ECICO is sought;

(b) In relation to the other 6 of the 7 Supporters:

(i) they had given prior written consent;

(ii) of those written consents:

(1) the one signed by S1 was collected late on 24 January 2020, and is now produced as an exhibit;

(2) the one signed by S7 had at one stage been misplaced, now located and produced as an exhibit;

(3) those signed by the other 4 have been misplaced and never recovered;

(iii) the requirement under section 27(1) and 27(1A) of the ECICO was fulfilled;

(iv) in any event, the correspondence between some of them and R1 constitute “consent in writing” under section 27(1A) of the ECICO;

(v) R1 however accepts that he has failed to comply with section 106(1) of the EACR, for which he seeks relief under section 107 of the EACR.

E. The Issues

16.  For HCAL 247/2020, parties have filed an Agreed Statement of Issues in Dispute. They are, in gist:

(a) whether R1 engaged in any illegal conduct contrary to section 27(1) of the ECICO;

(b) whether R1 was duly elected; and

(c) whether the Court should exercise its discretion to grant or refuse any relief in the Election Petition, and if so, what is the appropriate relief to be granted.

17.  R1 is seeking relief under both section 31 of the ECICO and section 107 of the EACR. If relief under section 31 of the ECICO is granted, the allegation of illegal conduct under section 27 of the ECICO will cease to be a live issue in the Election Petition — Leung Wai Kuen Edward v Secretary for Justice, unrep, HCMP 1321/2012, 17 January 2013[2], per Lam JA at §14. 

18.  Breach of section 106(1) of the EACR is not an illegal conduct in contravention of the ECICO. Nor has it been pleaded or relied upon by the Petitioner as a “material irregularity”[3]. It therefore falls outside the grounds specified in section 49 of the DCO[4] that enable the Election to be challenged. Ms Ho submits that whether relief is granted to R1 for his breach of section 106(1) of the EACR will however impact on whether relief may be granted to him for breach of section 27(1) of the ECICO.

F. Whether R1 engaged in illegal conduct contrary to section 27(1) of the ECICO

F.1. Two live sub-issues

19.  R1’s publication of the 5 EAs is not, and cannot be, disputed.

20.  I have considered the contents of the 5 EAs.  Each of them contained the name of at least one of the 7 Supporters (as tabulated above). Their support of R1 can readily be inferred, if not actually explicit.

21.  Dates of the first publication or distribution of the 5 EAs are also not in dispute, also as tabulated above.

22.  Two live sub-issues remain:

(a) what constitutes “consented in writing” as provided in section 27(1A) of the ECICO; and

(b) whether and if so when R1 obtained such written consent from each of the 7 Supporters.

F.2. Onus and standard of proof

23.  The onus of proof is on the Petitioner. Although in an election petition, the standard of proof is the civil standard of balance of probabilities, given the allegation of what can be prosecuted as a criminal offence, the Court would have to determine whether it is proved to a standard equivalent to the criminal standard — Re Ho Chun Yan, Albert (2012) 15 HKCFAR 686, at §§25 and 41, Cheng Keung Fung v Hung Chun Hin [2021] HKCFI 253, per Chow J at §15.

24.  In my view, the proof of the element that R1 did not have the requisite written consent prior to the publication of the relevant EAs has to be proved to a standard equivalent to the criminal standard.

F.3. What constitutes “consented in writing”

25.  Mr Shek’s submission is that for the purpose of section 27(1A) of the ECICO, a written consent does not need to take on any particular form, but can be inferred from for example a chain of WhatsApp, Telegram or Facebook Messenger messages.

26.  The gist of Ms Ho’s submission is that to qualify, the written consent must be a standalone written document.

27.  The relevant part of section 27 of the ECICO stipulates that:

“ Illegal conduct to publish election advertisement that includes false claim of support

(1) A candidate engages in illegal conduct at an election if the candidate publishes, or authorizes the publication of, an election advertisement that includes—

(a) the name or logo of or associated with a person or an organization; or

(b) a name or logo that is substantially similar to the name or logo of or associated with a person or an organization; or

(c) a pictorial representation of a person,

in such a way as to imply, or to be likely to cause electors to believe, that the candidate or candidates with whom the candidate is associated have the support of the person or organization unless the condition specified in subsection (1A)(a) or (b) is met and the requirement specified in subsection (1B) is complied with.

(1A) The conditions are—

(a) before the publication of the election advertisement, the person or organization consented in writing to the inclusion of the name, logo or pictorial representation in the advertisement;”.

28.  Section 106 of the EACR stipulates that:

“ Requirements applicable to election advertisements

(1) A candidate who publishes an election advertisement must comply with subsection (2) or (3) in relation to—

(a) the advertisement and any information related to the advertisement required by the Commission;

…

(c) if the advertisement is of a kind referred to in section 27(1) or (2) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554), the consent referred to in subsection (1A), (1B), (2A) or (2B) of that section.

(2) A candidate must—

(a) make an electronic copy of the advertisement, information, permission[5] or consent available for inspection on an open platform maintained by the Chief Electoral Officer or a person authorized by the Chief Electoral Officer (Central Platform) in the manner and within the time specified by the Commission;

(b) make an electronic copy of the advertisement, information, permission or consent available for inspection on an open platform maintained by the candidate or a person authorized by the candidate (Candidate’s Platform) in the manner and within the time specified by the Commission until the end of the period for which copies of election returns are available for inspection under section 41 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) and provide information about the Candidate’s Platform required by the Commission in the manner and within the time specified by the Commission; or

(c) if the Commission considers that it is technically impracticable to make available for inspection on the Central Platform or a Candidate’s Platform an election advertisement published through the Internet by means of an open platform, provide a hyperlink to that open platform on the Central Platform or Candidate’s Platform in the manner and within the time specified by the Commission.

(3) A candidate must provide, in the manner and within the time specified by the Commission, to the Returning Officer—

(a) the information and 2 copies of the advertisement in paper form or any other form specified by the Commission; and

(b) a hard copy of the permission or consent.

…

(7) The Returning Officer must make available for public inspection a copy of each of any advertisement, information, permission, consent or statutory declaration provided under subsection (3) or (6) from when it is provided until the end of the period for which copies of election returns are available for inspection under section 41 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554).” (Emphasis added)

29.  It should be noted that the Chinese term for the word “consent” in sections 106(1)(c), 106(2)(a), 106(2)(b), 106(3)(b) and 106(7) of the EACR is “同意書”.

30.  A written consent that satisfies the condition stipulated at section 27(1A) of the ECICO does not need to be in any particular format.  As observed by Lam JA in Leung Wai Kuen (HCMP) at §19, which I respectfully agree:

“ In respect of the format of the written consent, the Electoral Affairs Commission … had prepared a specimen form for the use of the candidates. However, there was no statutory prescribed form. The use of a different format cannot be regarded as illegal conduct. For the purpose of s 27(1), it would be sufficient if it is a written consent to include one’s name, logo or pictorial representation in the advertisement.”

31.  There was however no discussion in Leung Wai Kuen (HCMP) as to whether it has to be a standalone document signed by the supporter.

32.  The Chinese term “同意書”, though not entirely unequivocal, tends to support the interpretation that the required written consent is intended to mean one standalone document.

33.  Mr Shek submitted in the course of the hearing that the EACR makes provisions to a more detailed level when compared with the ECICO. He tried to disengage section 106 of the EACR when interpreting section 27 of the ECICO. I do not accept that submission, for the simple fact that section 106 of the EACR makes specific reference to the consent referred to in inter alia section 27(1A) of the ECICO.  The term “同意書” is clearly intended to refer to that.

34.  When approaching this issue of interpretation, the purpose and context of sections 27(1) and 27(1A) of the ECICO are more important.

35.  At §17.6 of Chapter 17 of the Guidelines on Election-related Activities (6^th September 2019 Ed), it is explained that:

“ Oral or retrospective consent is not allowed. The EAC provides a sample form for seeking consent of support from a person or an organisation for the purpose set out in para. 17.4 above. The written consent is a requirement under the ECICO. It protects the candidates from unnecessary complaints and disputes which may arise if only oral consent is obtained. It also protects the electors from being misinformed as to whether a candidate has the support of a person or an organisation.”

36.  Also relevant is the Hong Kong Legislative Council Hansard 2 December 1987, wherein the Secretary for District Administration when moving the Second Reading of the Corrupt and Illegal Practices (Amendment) Bill 1987 said that:

“ Name-dropping’ refers to a situation in which a candidate in an election claims to have the support of another person or organisation, without the prior written consent of the person or organisation whose name is being used. It was noted that misrepresentation in the content of some campaign materials used in the last elections in March 1986 had attracted general criticism from the public. Although section 16(3) of the Corrupt and Illegal Practices Ordinance provides for interim or perpetual court injunctions to be taken out by the injured party, such action can take time. It is therefore proposed to make an additional provision in the Ordinance, specifically to cover name-dropping, by requiring candidates to seek and obtain prior written consent before using the name of any other person or organisation in their election activities, and by making a breach of this provision an offence.”

37.  From the above, one may gather that the purposes of section 27(1A) of the ECICO requiring prior written consent of a supporter include:

(a) to protect the candidates from unnecessary complaints and disputes which may arise;

(b) to protect the electors from being misinformed as to whether a candidate has the support of a person or an organization; and

(c) to provide a quick and efficient procedure (as opposed to the pre-existing procedure of seeking an injunction, which “can take time”) to cover “name-dropping”.

38.  A composite written consent can be clear. For example, if a candidate writes to a supporter and asks in clear terms whether the supporter consents to the candidate including his (the supporter’s) name, logo or pictorial representation in his (the candidate’s) election advertisement, and if the supporter writes back in a signed note and say (albeit simply) “I consent”, the effects of the two documents when read together are perfectly clear.

39.  However, the combined effects of a composite consent may not always be so clear. In fact, most of the times, they will not be. They can even be obscure, and open up different versions of interpretation.  The correspondence between R1 and some of the 7 Supporters, which I will discuss below, in fact demonstrate how unsatisfactory it would be if written consents were to be permitted to be inferred from such exchanges. 

40.  Further, allowing two documents to be read together opens up the possibility of even more documents to be read together. No line can be drawn as to how composite a composite written consent can be permitted to be.

41.  Allowing composite written consent will give rise to unnecessary complaints and disputes, may lead to electors being misinformed, and will lead to court proceedings the resolution which will take time.

42.  In the course of his oral submission, Mr Shek accepted that his interpretation may not be the best way to embody the consent concerned, and will introduce uncertainty.

43.  In my view, allowing composite written consent, and in particular allowing written consent to be construed from a chain of exchanges, will defeat all three of the identified purposes for requiring written consent.

44.  The preparation of a clear and standalone written consent takes no effort at all. A specimen form has been devised by the Electoral Affairs Commission. Even if a particular candidate for whatever reasons decides not to use the specimen form, it will still take no effort at all for that candidate and the supporter to come up with “a written consent to include one’s name, logo or pictorial representation in the advertisement” — see Leung Wai Kuen (HCMP) at §19,

45.  There exist therefore no practical considerations which require composite written consents to be allowed.

46.  For the above reasons, I am of the view that to qualify as a written consent mentioned in section 27(1A) of the ECICO, the consent has to be a single document expressing consent to include one’s name, logo or pictorial representation in the advertisement. It cannot be a composite document with more than one document read together. It cannot be permitted to be inferred from a chain of correspondence or messages. I accept Ms Ho’s submission in this regard.

47.  In the rest of the judgment, I use the term “Written Consent” to denote a written consent in the sense as I have described above.

F.4. Whether prior Written Consents obtained

48.  R1’s cases are not the same in respect of all the 7 Supporters.  I have endeavored to summarize them above.  S6, S7 and S1 will have to be considered separately. The other four may be discussed as a single group.

F.4.a. S6

49.  It is not R1’s case that S6 has given any Written Consent. She clearly has not.

50.  I have ruled that a chain of correspondence do not qualify. Even if I were wrong there, the contents of the relevant WhatsApp messages between S6 and R1 would in my view still fail to qualify:

(a) The relevant WhatsApp messages are as follows:

「R1: 小麗你好，團隊正準備下一批宣傳品；雖然未簽好支持同意書，但可否讓我們先將你的名姓放進宣傳品內「民主派支持名單」中，然後我盡快安排補簽同意書？感謝萬分！

S6: Hello Timothy, 不如電話上直接傾幾句?」

(b) Clearly, the contents of that request and reply do not constitute any Written Consent by S6.

51.  In the case of S6, there can be no doubt that sections 27(1) and 27(1A) of the ECICO have been contravened, and that R1 engaged in illegal conduct contrary to section 27(1) of the ECICO.

F.4.b. S7

52.  To recapitulate, it is R1’s case in respect of S7 that:

(a) the messages exchanged between them constitute “consent in writing” under section 27(1A) of the ECICO;

(b) in any event, S7 had in fact signed a prior Written Consent (“S7’s Written Consent”) which, though received late and at one stage misplaced, has subsequently been located and now produced. There was therefore no breach of section 27 of the ECICO, though there is breach of section 106 of the EACR.

53.  In so far as the messages exchanged between them:

(a) It is fair for me to describe the relevant Telegram messages between R1 and S7 as banter exchanged between two friends.  They comprised words, emojis and stickers.  They spanned over several pages. Amongst the banter was a request on 22 November 2019 from R1 that “靚仔 你方唔方便畀支同我?”  I have been told that “支同” means a “支持同意書”. I do not know whether an elector may or may not be able to understand that as such.  There was no clear answer from S7 to that request. Then R1 asked S7 to write something to support him, which S7 agreed. Then R1 said “我偷你FB張靚仔相”, which R1 seeks to argue as meaning a request for S7’s consent to use his photograph;

(b) I have ruled that such exchanges do not qualify as a Written Consent. In fact, such exchanges clearly demonstrate the danger of accepting Mr Shek’s submissions on the interpretation of section 27(1A) of the ECICO in relation to the meaning of “consented in writing”.

(c) If necessary, I would have ruled that those exchanges as a matter of contents in any event could not qualify as a Written Consent.

54.  As to whether S7 had signed a prior Written Consent, one needs to examine the evidence. Mr Shek submits that from R1’s affirmation (“R1’s HCMP Aff”), S7’s Statutory Declaration prepared for the purpose of these proceedings, and the Written Consent produced, “[S7] signed the [Written Consent] on 23 November 2019, which is one day before the actual distribution of the relevant election publication”[6] (emphasis added).  Ms Ho submits that the evidence does not support that, but supports the inference that S7 only signed the Written Consent after the publication of the Posters.

55.  Whether S7 signed it on 23 November 2019 is the crux.

56.  The evidence is as follows:

(a) As said above, amongst the messages exchanged between R1 and S7 was a request on 22 November 2019 from R1 for a “支同”. There was no clear answer from S7 to that request;

(b) Then on 7 December 2019, long after the Election, there was another series of exchanges between them[7]:

(i) S7 said that he was about to fly out of town. R1 said they could meet when S7 came back. R1 then said:

「但係可否簽張支同畀我先」;

(ii) To that, several messages later, S7, with reference to that request, answered:

「差d唔記得」;

(iii) Then, several further messages later, R1 said:

「你臨走簽支同畀我先

你返黎再食好西

寄就[address provided]」;

(iv) To that, S7 answered:

「我soft copy比你啦」;

(c) On the face of S7’s Written Consent produced[8]:

(i) against S7’s signature is the date “23 November 2019”;

(ii) Keung Wai Yiu (“Keung”), R1’s Election Agent, signed on that form as the witness, declaring that the form was signed by S7 in his presence. The date against his signature is however “24 November 2019”;

(d) Keung has made a Statutory Declaration for the purpose of these proceedings.  He did not deal therein with the execution by S7 of S7’s Written Consent at all;

(e) In R1’s HCMP Aff, R1 mentions a couple of times that S7’s Written Consent is “dated 23 November 2019”. He is vague however as to when he received it from S7, and when to his knowledge S7 signed S7’s Written Consent.  §§58 and 59 of R1’s HCMP Aff read as follows (with emphasis added):

“ 58. On 7^th December 2019, I contacted Chris Lau for the signed Consent Form via Telegram and he told me that he would send me a soft copy. However, I did not receive the signed soft copy at all. I must admit that after this correspondence, I failed to look for the signed hardcopy of the Consent Form for filing purposes ...

59. After the Election Petition has been filed then I realized that no written consent from Chris Lau was filed with the Returning Officer. I then went through my papers from the election campaign again and found that Chris Lau did in fact send a signed hardcopy of Consent Form dated 23^rd November 2019 to me by post. It was because Chris Lau's signed Consent Form was mislaid in my papers that it was not filed with the Returning Office along with the other signed Consent Forms. There is now produced and shown to me marked exhibits ‘LHL-12’ a copy of the Consent Form signed by Chris Lau dated 23^rd November 2019.” (Emphasis added)

(f) S7’s Statutory Declaration is no clearer. He does not say when he signed S7’s Written Consent, just that it was “signed by me dated 23^rd November 2019”. Nor does he say when he sent it over to R1. The relevant parts of his Statutory Declaration are as follows (with emphasis added):

“ 6. On 22^nd November 2019, Timothy approached me via Telegram to ask for my support. I agreed and sent him a short passage to be included in his election flyers. He also asked to use my photograph, which I also readily agreed. I understood that by agreeing, I was giving him my express consent to use my name and my image in his election advertisements, and to make representations that I supported his candidacy.

…

8. On 7^th December 2019, Timothy Lee asked me for the signed Consent Form via Telegram and I told him I would send a soft copy. However, for some technical reason, I could not forward the soft copy to him. In any event, I had also sent a hardcopy of the Consent Form to Timothy by post. I have had sight of exhibit ‘LHL-11’ attached to the Affirmation and confirm that the aforesaid exhibit is a screenshot of correspondence between Timothy Lee and I via Telegram dated 22^nd November 2019 and 7^th December 2019.

9. I have had sight of exhibit ‘LHL-12’ attached to the Affirmation and confirm that the aforesaid exhibit is a copy of Consent Form signed by me dated 23^rd November 2019.”

57.  I note that what S7 says at §8 of his Statutory Declaration (as underlined above) is in fact not supported by the Telegram messages produced. The messages do not show that R1 “asked me for the signed Consent Form via Telegram” (emphasis added). What R1 asked was “但係可否簽張支同畀我先” and “你臨走簽支同畀我先”.

58.  I have considered the evidence set out above carefully. On 7 December 2019, R1 asked S7 to “簽張支同畀我先”.  At that stage, and as submitted by Mr Shek, all R1 might know might be that he had not received the Written Consent. He might not know whether S7 had not signed it, or that S7 had signed it but had not sent the signed form over.  But S7, with reference to the request to him to “簽張支同畀我先”, answered that “差d唔記得”. That answer in context must mean that he had nearly forgotten about signing the form. Then he was asked a second time to “你臨走簽支同畀我先”. To that, he answered he would send R1 soft copy.  Notably, he did not say that he had already signed it on 23 November 2019 and would send soft copy of the signed form over to R1.   

59.  I have also considered the other evidence adduced. The two dates on S7’s Written Consent do not tally. Keung does not deal with the matter. Both R1 and S7 have not addressed the core issues as to when the document was signed, when it was sent over, when it was received, and when it was located. None of what they have said gives cause to understand those messages as I have analyzed above any differently.

60.  In my view, those messages, which R1 produced and which have been confirmed by both R1 and S7 to be the Telegram messages they exchanged, show beyond doubt that S7 had not by 7 December 2019 when they exchanged those Telegram messages signed any Written Consent.

61.  For the above reason, I conclude in the case of S7 that the evidence establishes to a standard equivalent to the criminal standard that section 27(1) of the ECICO has been contravened, and that R1 engaged in illegal conduct contrary to section 27(1) of the ECICO.

F.4.c. S1

62.  Ms Ho points to certain evidence which shows that S1 only flew back to Hong Kong on 24 November 2019. The Posters however started to be distributed in the morning of 24 November 2019. Ms Ho therefore submits[9] that even if S1 had signed the Written Consent on 24 November 2019, it is likely that his signing took place after R1 had started to publish the Posters in the morning of 24 November 2019.

63.  The evidence before me leaves open the possibility that S1 signed the Written Consent in the small hours of 24 November 2019 before the distribution and publication of the Posters on that morning. 

64.  I conclude in the case of S1 that:

(a) the evidence fails to establish to a standard equivalent to the criminal standard that section 27(1) of the ECICO has been contravened;

(b) there has however clearly a breach of section 106 of the EACR.

F.4.d. S2, S3, S4 and S5

65.  It is R1’s case that he on four occasions between 19 October 2019 and 24 October 2019 obtained separately the Written Consent of S2, S3, S4 and S5. Each of them had signed on the same specimen consent form (referred to as the “Consent Form 1”, which term I adopt). R1 put and carried it in his backpack. It has subsequently been misplaced. It can no longer be located.

66.  Each of S2, S3, S4 and S5 has filed a Statutory Declaration confirming R1’s case.

67.  Ms Ho has not sought to challenge their evidence. 

68.  On the evidence, I conclude that in so far as S2, S3, S4 and S5 are concerned:

(a) the evidence shows that there is no breach of section 27(1) of the ECICO; and

(b) there have however been breaches of section 106 of the EACR.

G. Whether relief be granted to R1 for the breaches

G.1. The law

69.  The law is not in dispute. The gist may be stated as follows.

70.  Section 31 of the ECICO empowers this Court to make orders relieving candidates from consequences of illegal conduct contrary to section 27(1). Section 31(2) stipulates that such orders may however be granted:

“ … only if the Court—

(a) is satisfied that—

(i) the act or omission was due to inadvertence, an accidental miscalculation or any reasonable cause and was not due to bad faith; and

(ii) where the Court requires notice of the application to be given in Hong Kong, the notice has been given; and

(b) believes it to be just that the applicant should not be subjected to one or more of those penalties and disqualifications.”

71.  Relevant to section 31 of the ECICO I have been cited a number of authorities, which include Leung Wai Kuen (HCMP).  From it Ms Ho has distilled a number of propositions. Mr Shek does not seek to dispute them. I accept them. They may be summarized as follows.

72.  When considering whether relief should be granted for breach of section 27(1) of the ECICO, the crucial issue is not whether a candidate actually had the support of the supporters concerned, but whether he had their written consent for the inclusion of their names as his supporters in the election advertisements prior to their dispatch: Leung Wai Kuen (HCMP) §30.

73.  Inadvertence means “negligence or careless where the circumstances show an absence of bad faith”: Leung Wai Kuen (HCMP) §39.  One must however not equate the lack of bad faith with inadvertence. The two are separate elements which must both be satisfied: Leung Wai Kuen (HCMP) §40.

74.  There is a distinction between a case where a candidate simply turned a blind eye or acted recklessly as to the legal requirement and a case where the candidate has tried to understand what the legal requirement is but failed to get it correctly: Leung Wai Kuen (HCMP) §37. 

75.  The following observations reiterated by Lam JA in Leung Wai Kuen (HCMP) at §38 are worth highlighting, that:

“In my judgment, if an applicant did not place enough significance on the obligation to file an election return, the court would require some good reason before it should exercise its discretion to grant relief. Section 40(2) gives the court a discretion. I think it is important that the discretion should be exercised in a manner which is consistent with the integrity of our election legislation. Those participate in election should be aware that these are serious matters and therefore they should take reasonable steps to comply with their legal obligation at the time when they put themselves forward as a candidate for any election.”

76.  At §[31.05] of the Annotated Ordinance: Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554), the law is summarized as follows:

“ Inadvertence’ means negligence or carelessness where the circumstances show an absence of bad faith: see Re County Council Elections, ex p Lenanton, ex p Pierce (1889) 5 TLR 173 (DC), (1889) 53 JP 263 (DC) (Eng); Re Bedwellty Constituency Parliamentary Election, exp Finch (1965) 109 Sol Jo 514 (carelessness will not prevent relief from being granted provided that it does not approach recklessness). The evidence should show some reasonable excuse for the inadvertence and the negligence must not be of so gross a nature or so culpable as of itself to raise doubts concerning the good faith of the applicant: See also Re Brook Bernacchi & others [1957] HKLR 185; Chan Hak Kan & Ors v Secretary for Justice [2013] HKCU 2664 (unreported, HCMP 623/2013, 18 November 2013); Re Fan Gary Kwok Wai & Ors [2014] HKCU 140 (unreported, HCMP 1080/2013, 20 January 2014). Cf Wong Yee-him v S-J [2000] HKCU 78 (unreported, HCMP 611/2000, 10 March 2000)), which makes a distinction between inadvertence and recklessness ...”

77.  Section 107 of the EACR empowers this Court to grant relief for election advertisements. Similar to section 31(2) of the ECICO, section 107(2) of the EACR stipulates that those orders however may be granted:

“ …only if the Court

(a) is satisfied that—

(i) the non-compliance was due to inadvertence, an accidental miscalculation or any reasonable cause and was not due to bad faith; and

(ii) if the Court requires notice of the application to be given in Hong Kong, the notice has been given; and

(b) believes it to be just that the act be so excepted.”

78.  Relevant to section 107 of the EACR I have been cited胡子良 及 選舉事務處unrep, HCMP 770/2016, 23 December 2016.  The considerations are similar to those relevant to section 31 of the ECICO.

G.2. Discussion

79.  I have concluded that there have been breaches of section 27(1) of the ECICO in respect of S6 and S7.

80.  R1 was aware of his obligations under section 27(1) of the ECICO and section 106 of the EACR[10]. He was also aware of the existence of the specimen consent form. He is not claiming, and cannot claim, ignorance.

81.  The evidence suggests that all of the 7 Supporters actually supported R1. It is not a case of he trying to claim support falsely or to conceal absence of support. In my view, the evidence supports the absence of bad faith.

82.  However, the absence of bad faith is not to be equated with inadvertence. Both will have to be established.

83.  I remind myself that when deciding whether relief may be granted, the crucial issue is not whether R1 actually had the support of the 7 Supporters, but whether he had their written consent prior to the distribution of the relevant EAs.  That ought clearly to be so given what I have found to be the purposes for requiring prior written consent.

84.  In the case of S6:

(a) According to R1[11], during the telephone conversation he had with S6 on 15 October 2019, they agreed to arrange a later date for the signing of the Written Consent. He then delegated the task to Keung.  Keung in his Statutory Declaration says that it was due to the heavy workload and the long, tight schedules of running the election campaign that he omitted to act on R1’s instructions;

(b) The facts have to be considered in context;

(c) R1 knew on 15 October 2019 that he had not had S6’s Written Consent. On the Vertical Banner published on 25 October 2019, S6’s name was mentioned. He did not check. He did not ask Keung whether he (Keung) had followed up with S6;

(d) Then, about 9 days later on 3 November 2019, the Horizontal Banner started to be displayed. S6’s name was again on it. The Horizontal Banner continued to be displayed from that time till the date of the Election on 24 November 2019. During all that time, R1 had failed to follow up either with Keung or S6;

(e) On the facts, I accept Ms Ho’s submissions that the breach was not due to inadvertence. R1 was reckless. It was the result of R1 not placing enough significance on his obligations under sections 27(1) and 27(1A) of the ECICO and section 106 of the EACR. The evidence does not show any reasonable excuse for the mistake;

(f) Consistent with R1’s aforesaid attitude is the fact that he only filed the Originating Summons in August 2020. I do not accept his explanation in that regard that he had been waiting for the Petitioner to pay his security for costs. The obligation is on R1 to seek relief.

(g) In my view, no good reason has been put forward for relief in the case relating to S6. In my view, granting relief in this regard on the facts of this case is also inconsistent with the safeguarding of the integrity of our election legislation. I respectfully adopt the reasoning of Lam JA at §41 of the Leung Wai Kuen (HCMP), which are equally apposite here. R1 could not claim that he had time for his other electioneering activities but had no time for compliance with the requirement under section 27(1A) of the ECICO.

85.  In the case of S7:

(a) R1 first sought Written Consent from S7 on 22 November 2019. None was given then. At least, given his subsequent request to S7 for Written Consent on 7 December 2019, his contemporaneous understanding was that S7 had not provided him with any;

(b) For reasons unexplained, he included S7’s name in the Posters distributed on 24 November 2019. There were 1,000 of them;

(c) In fact, not only was S7’s name mentioned, a message from S7 was also printed thereon which, together with S7’s photograph, occupying about 1/5 of a page of the Poster;

(d) Then, again for reasons unexplained in R1’s HCMP Aff as to what had prompted that, R1 on 7 December 2019 contacted S7 and asked “但係可否簽張支同畀我先”;

(e) He has failed in R1’s HCMP Aff to explain when he received it from S7, and when to his knowledge S7 signed S7’s Written Consent. I have stated my view that his affirmation is vague in those regard, and that S7’s Statutory Declaration is no clearer;

(f) Despite his belated discovery that he had not fulfilled his elections obligations, he failed to diligently follow up on the matters. He has failed to inform the Court as part of his case for relief when he actually received S7’s Written Consent. He only in vague terms “admit that after this correspondence, I failed to look for the signed hardcopy of the Consent Form for filing purposes” and that somehow upon receipt of the Election Petition, “I then went through my papers from the election campaign again and found that Chris Lau did in fact send a signed hardcopy of Consent Form dated 23^rd November 2019 to me by post”;

(g) In my view, the non-compliance in the case of S7 was the result of recklessness, and demonstrates that R1 did not place enough significance on his obligations under sections 27(1) and 27(1A) of the ECICO and section 106 of the EACR;

(h) In my view, granting relief in this regard on the facts of this case is also inconsistent with safeguarding of the integrity of our election legislation.

(i) R1 has failed to establish a case for relief.

86.  I have thus far considered the cases in relation to S6 and S7 individually. A fortiori, relief ought to be refused if they are to be considered together. 

87.  In reaching the above conclusions, I have considered Mr Shek’s submissions that in a good number of other cases, R1 had appropriately obtained and filed the prior Written Consent. I accept Ms Ho’s submission that such quantitative consideration is not helpful. A large number and high percentage of failure show a bad case and they are relevant. A smaller number and lower percentage of failure does not on the other hand show that relief should be granted. The facts should be looked at.

88.  In the case of S1, S2, S3, S4 and S5:

(a) R1 allowed his campaign to be run in a “rather rushed and somewhat disorganized manner”[12];

(b) S2’s name appeared on all of the 5 EAs. S3’s was on 4;

(c) R1 allowed repeated breaches;

(d) R1 lost the Consent Form 1;

(e) In relation to the case of S1, he failed to cause it to be picked up until 24 January 2020;

(f) In the course of his submissions, Mr Shek referred to some of such breaches as being technical. Presumably he meant that actual consent had been obtained;

(g) I have no hesitation in rejecting any suggestion that any of those breaches we are concerned with are technical. The obtaining and filing of prior written consent for public inspection are 2 different matters. Such obligations, apart from anything else, are there to ensure the integrity of our election system. Any related breach cannot be described as technical;

(h) R1 failed to seek relief until August 2020;

(i) On the facts of the case, I find that R1 has failed to establish that his non-compliance of section 106 of the EACR was the result of “inadvertence”. In my view, the evidence suggests recklessness, and that he has placed low significance to his election obligations. He is required to but has failed to show any good reason for relief;

(j) I refuse R1 relief under section 107 of the EACR.

H. Whether duly elected

89.  Mr Shek accepts that if this Court refuses R1 relief under section 31 of the ECICO, it should be declared that R1 was not duly elected. That must be right — see “Leung Wai Kuen (HCMP)”, §§32-34, 39-40. 

90.  In the circumstances, I declare that R1 was not duly elected in the Election. I cannot determine whether some other person was duly elected instead.  That is also not being sought in the Election Petition. I declare instead that R1 ceases to be an elected member of the District Council, and that his office as the District Councillor of the Constituency is vacant.

I. Further actions and costs

91.  A copy of this judgment will be sent to the Secretary for Constitutional and Mainland Affairs pursuant to section 55(5) and the Director of Public Prosecutions pursuant to section 55(7) of the DCO.

92.  I make a costs order nisi that R1 shall bear the costs of both HCAL 247/2020 and HCMP 1183/2020. R2 has sought summary assessment and submitted a statement of costs. Ms Kao has also submitted a statement of costs. Any party who seeks variation of the costs order nisi, and any other parties who seeks summary assessment may write in within 14 days, in which case I will give directions on the further conduct of all the applications (including that of R2 and Ms Kao’s) together.