CHUNG MING v. CHOW PING TIM

HCAL 11/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS
NO. 11 OF 2004

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J U D G M E N T

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Introduction

1. This is an election petition taken out on 28 January 2004 (the petition was amended on 9 March 2004) pursuant to ss. 49 and 50, District Councils Ordinance (Cap. 547). It concerns the district council election for the Hoi Bun constituency (海濱選區) held on 23 November 2003 (respectively "the said election" and "Hoi Bun"). The petitioner and the respondent were the only two candidates at the said election. The respondent was declared to have been elected.

The Complaints in the Petition

2. The relevant parts of s. 49(1), Cap. 547 read:-

"An election to return an elected member may be questioned only on the following grounds-

(a)	the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap 541) to have been elected as an elected member at the election was not duly elected because-
...
(ii)	corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election; or
(iii)	corrupt or illegal conduct was generally prevalent at or in connection with the election" (emphasis supplied).

3. The petitioner's complaints herein are:-

(a) corrupt or illegal conduct was engaged in by the respondent at or in connection with the said election;

(b) alternatively, corrupt or illegal conduct was generally prevalent at or in connection with the said election.

4. The phrases "corrupt conduct" and "illegal conduct" have been defined in Cap. 547 to mean:-

"corrupt conduct engaged in in contravention of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554)";

"illegal conduct engaged in in contravention of [Cap 554]" (s. 2 thereof).

5. The petitioner relies herein on the meaning given to "illegal conduct" by s. 26(2), Cap. 554 the material parts of which provide:-

"A candidate engages in illegal conduct at an election if the candidate publishes a materially false or misleading statement of fact about the candidate ... , for the purpose of-

(a) promoting the election of the candidate or candidates with whom the candidate is associated; or

(b) prejudicing the election of the other candidate or candidates" (emphasis supplied)."

Further, s. 26(3) provides:-

"... statements about a candidate ... include (but are not limited to) statements concerning the character, qualifications or previous conduct of the candidate ... "

(emphasis supplied).

6. Although two complaints have been made, the respondent's conduct which allegedly constitutes the "corrupt or illegal conduct" is the same for both complaints.

Issues in the Petition

7. The respondent denies that he has engaged in any corrupt or illegal conduct. In order to resolve the issue thereby arising, there is firstly a need to determine the respondent's credibility.

8. Further, the petitioner contends that, even if the respondent was to be believed, as a matter of law, the respondent's false or misleading statements may still constitute "corrupt or illegal conduct" irrespective of whether the respondent subjectively believed in his statements. The respondent disagrees with this contention. As a result, it may also be necessary to examine the true meaning of the relevant statutory provisions.

9. The above issues will be dealt with in more detail below. But before turning to the issues, a few words should be spent on the question of burden and standard of proof. It is accepted by the petitioner that the burden lies with her to establish the respondent's "corrupt or illegal conduct", and, insofar as general prevalence of such conduct is concerned, the burden also lies with her to establish that.

10. In relation to the standard of proof, the petitioner contends that, even though a "corrupt or illegal conduct" can also amount to a criminal offence under Cap. 554, because an election petition is in the nature of a civil proceeding, the standard of proof remains that of establishing the conduct on the balance of probabilities; reliance is placed on the decision in Re H(minors) [1996] AC 563. This is undisputed by the respondent.

11. For completeness, I will set out the following observations in Phipson on Evidence (2000) 15th Ed. on this point. Para. 4-35 of Phipson says:-

"The standard of proof in civil cases is proof on the balance of probabilities ... ".

Para. 4-36 thereof also states:-

"Where a serious allegation is made in a civil case, such as an allegation of criminal conduct, the standard of proof remains the civil standard. ... However, the more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it ... The matter was explained by Lord Nicholls in Re H (minors) [[1996] AC 563] ... " (emphasis supplied).

The Respondent's Conduct

12. The background facts are basically undisputed. At the time of the said election, the voters of Hoi Bun consisted of residents of a housing project known as "Rivera Garden" (海濱花園"), Yi Hong Street, Tsuen Wan, and another project known as "Waterside Plaza" (para. 4, exhibit "D1"(a set of admitted facts)).

13. The petitioner's election campaign was supported by various well-known politicians who were generally considered by the local mass media as the pro-democratic camp. From about mid-October 2003 onwards, both the petitioner and the respondent launched their respective election campaign. Promotional literature was published and distributed by both candidates as part of their campaign.

14. The petitioner's complaint herein is related to the following promotional literature of the respondent:-

(a)	a leaflet dated 10 November 2003 with a heading (among other statements) "... 一位資深（１３年）獨立議員的民主公義宣言";
(b)	a leaflet dated 15 November 2003 with a heading "嚴重抗議";
(c)	on about 21 November 2003 (2 days before the election day), a leaflet with a heading "痛心疾首";
(d)	a leaflet dated 22 November 2003 with a heading "... 期望大家一齊携手解決公衆殮房的滋擾問題".

(collectively "the said leaflets" and respectively "the 10 Nov leaflet", "the 15 Nov leaflet", "the 21 Nov leaflet" and "the 22 Nov leaflet").

The Relevant Promotional Literature

15. The petitioner complains that the said leaflets contain false and misleading statements.

16. The part of the 10 Nov leaflet referred to in the petition is:-

"以上是我１３年獨立議員的肺腑之言 ... ".

A similar statement has been made in the heading ("... 一位資深（１３年）獨立議員的民主公義宣言"). The 10 Nov leaflet stated that it was an election advertisement and that 10,000 copies had been printed.

17. In relation to the 15 Nov leaflet, the complaint is about the following passages:-

"[答辯人]當時雖然是臨區局議員但未加入[臨時區域市政局 ― 葵青地區管理委員會]，故當時未能第一時間得知有關事件";

"[答辯人]接獲街坊查詢在醉酒灣卸貨區對面 ... 的工程項目，[答辯人]即時親自到場 ... 才驚覺正在興建一座公眾殮房".

The 15 Nov leaflet also stated that it was an election advertisement and that 10,000 copies had been printed.

18. The parts of the 21 Nov leaflet on which the petitioner places emphasis include:-

"公眾殮房的興建是直接影響海花園的居民和樓價，試問[答辯人]作為業主的一份子，怎可能在知情下而不為海濱出聲?";

"請支持獨立無黨浱 ... 的[答辯人] ... ";

"[答辯人]當時雖然是臨區局議員但未加入[臨時區域市政局 ― 葵青地區管理委員會]，故當時未能第一時間得知有關事件";

"[答辯人]接獲街坊查詢在醉酒灣卸貨區對面 ... 的工程項目，[答辯人]即時親自到場 ... 才驚覺正在興建一座公眾殮房".

19. The following part of the 22 Nov leaflet has been included in the petitioner's complaint:-

"... 更加沒有理由怪責已結束三年的臨區局（荃灣區）議員[答辯人]未知葵青地區管理委員會上的事情 ... ".

In context, the statement to the effect that the respondent was unaware of matters of the Kwai Ching District Committee must have been a reference to his not being made aware of the construction of a public mortuary.

20. The petitioner alleges that the respondent made false statements in the said leaflets:-

(a)	in the 15 Nov leaflet, the 21 Nov leaflet and the 22 Nov leaflet, he falsely stated that "he had no knowledge of the proposal and planning for the construction of the public mortuary at Kwai Hei Street, Kwai Chung, New Territories ("the said public mortuary") until September 2003" (para. 1(c) thereof);
(b)	in the 15 Nov leaflet, the 21 Nov leaflet and the 22 Nov leaflet, he falsely stated that "he had not participated in any relevant committee involving the discussion and/or consultation about the proposal and planning for the construction of the said public mortuary" (para. 1(e) thereof);
(c)	in the 10 Nov leaflet, he falsely stated that "he was an independent candidate with no affiliation with any political party" (para. 1(g) thereof).

The importance of the above statements to the voters at the time of the said election is undisputed.

(a) The Respondent's Participation in Committees

21. The petitioner does not claim in her affirmations to have personal knowledge of whether, prior to September 2003, the respondent has participated in committees where the construction of the said public mortuary was made known. She relies on the records of the former provisional District Council to establish this part of her case.

22. The petitioner relies on the minutes of meeting of the Environmental and Hygiene Affairs Committee (環境衞生事務委員會) ("the said committee") of the Provisional District Council regarding its meeting held on 4 February 1999 (which was the 18th meeting of the said committee). This record shows that the respondent was present. Further, item 9 of the agenda was:-

"因應衞生署請求批出葵涌火葬場部分土地興建公眾殮房

(文件編號 : EH/74/98)

(檔案編號 : ESD 1/HQ 405/98)

... 嚴天生議員動議，李崇德議員和議，議員一致通過接納衛生署請求，批出葵涌火葬場部分土地，供該署興建公眾殮房".

A document attached to the minutes describes the location of the land as follows:-

"... 一幅位於葵喜街與永順街交界處，毗鄰葵涌火葬場的政府土地(GLA KT 1017) ... ".

Further, a plan showing the location of the land in question was also attached to the minutes. It is undisputed the agenda concerns the same piece of land which is the scheduled site of the said public mortuary.

23. In addition, the minutes of meeting of the said committee of the Provisional District Council regarding its meeting held on 4 March 1999 (which was the 19th meeting of the said committee) recorded that the respondent was present and that:-

"陳道煬議員動議，簡松年臨區局副主席和議，議員一致通過一九九九年二月四日第十八次會議紀錄，毋項修改。"

24. It must be borne in mind what the respondent has in fact said in the said leaflets about his participation in committees. In the 15 Nov leaflet, the 21 Nov leaflet and the 22 Nov leaflet, the only statements regarding this are the statements that the respondent had never participated in the Kwai-Ching District Committee (葵青地區管理委員會) (and that committee only). There is no statement to the effect that he had never participated in the Provisional District Council or the said committee, nor is there any statement that he has never participated in any other committees generally.

25. By reason of the matters set out above, there is no "materially false or misleading statement of fact" in this respect. Accordingly, this complaint has not been made out by the petitioner.

26. I note that at the beginning of his final submission, counsel for the respondent conceded that there is falsity in the respondent's statement that he has not taken part in any of the committees in which the above issue has been discussed. However, as I have found above, the respondent has not made such a general statement in the said leaflets. Insofar as counsel may be conceding he has in fact done so, it is a concession not supported by the evidence before the court.

(b) The Respondent's Knowledge of the Project

27. The petitioner also does not claim in her affirmations to have personal knowledge of whether, prior to September 2003, the respondent was aware of the construction of the said public mortuary. Again, she relies on the above-mentioned minutes of meeting of the said committee.

28. The respondent's case regarding this complaint is in essence as follows. The two meetings of the said committee took place about 4 years and 8 months before the publication of the said leaflets. By the time of the said leaflets, the respondent has no recollection of those two meetings. In fact, he cannot recall:-

(a)	whether he happened to have left the conference room at the time when the discussion about the said public mortuary took place (during the course of the 18th meeting of the said committee);
(b)	whether he has been provided with the relevant documents (such as the discussion papers) before the 18th meeting of the said committee;
(c)	if he has in fact been provided with the above documents, whether he has read them in detail;
(d)	whether he was in fact aware that the public mortuary which was to be constructed was located within Hoi Bun. He explained that this is because the focus of the 18th meeting of the said committee was about whether the land (which was part of the land of the Kwai Chung crematory) requested by the authorities should be handed over to the authorities for the proposed use (of a public mortuary). It was not about, for example, whether it was appropriate for that piece of land to be used as a public mortuary (which did not fall within the area of responsibility of the said committee);
(e)	the respondent also said in cross-examination that it was possible he thought at the time of the meetings of the said committee that the topic was concerned with matters in Kwai Chung and he therefore overlooked it.

The cross-examination has not shaken the respondent on his claim of no recollection. Judging from the whole context, it is more likely than not his claim is credible.

29. The respondent also claims that he has taken care to ensure the statements in the said leaflets are accurate by enquiring with the government officials.

30. The petitioner contends that s. 26(1), Cap. 554 has in effect enacted a strict liability offence. This is because s. 26(4) provides:-

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

She submits that, because s. 26(4) provides for a statutory defence involving the defendant's subjective mental state, this supports the above proposition.

31. Accordingly, so the petitioner argues, merely because at the time of publication of the said leaflets, the respondent has no recollection of the construction of the said public mortuary (even if that be accepted as true) is an insufficient answer. This is because, if the court should find that the respondent earlier knew of that matter, his claim that he has had no recollection can only mean that the respondent is seeking to rely on the defence provided by s. 26(4), Cap. 554. For reasons set out under the heading "Statutory Defences" below, that defence does not avail the respondent in an election petition.

32. I will approach this issue on the assumption that the petitioner's above contention that s. 26(1), Cap. 554 is concerned with illegal conduct of "strict liability" is correct.

33. However, in present context, one still has to keep in mind what the respondent's statement was about. The statements on which this part of the petitioner's case is grounded are in essence that the respondent has no knowledge of the construction of the said public mortuary before September 2003.

34. In common parlours "knowledge" necessarily involves a person's subjective mental state. Sometimes, a person may say he does not know something, only to find out later that he in fact already knew of it (whether from personal knowledge or from other sources such as books, magazines or the mass media); he has simply forgotten the matter when he said he did not know it. Everything depends at the end on circumstance but usually, no reasonable person will regard such a person as having lied (or, using the wording of s. 26(2), Cap. 554, as having made a false or misleading statement of fact); little difference can ordinarily be made between knowledge and recollection (or the lack thereof) in daily life.

35. I do not regard s. 26(2), Cap. 554 to require a different meaning to be given to the phrase "a materially false or misleading statement of fact" in relation to a statement involving a person's personal knowledge. In other words, even for the purpose of that provision, it is not "materially false or misleading" to say one does not know something when in fact he merely cannot recall it.

36. To label s. 26(2), Cap. 554 as having created a strict liability offence is therefore missing the real point. The issue involved here is not about whether the respondent was aware of (or has reasonable ground to believe in) what the relevant statements say. Rather, the issue is whether those statements are "materially false or misleading".

37. To conclude, by reason of the above matters, I find that:-

(a)	the respondent's testimony regarding this complaint is credible and reliable;
(b)	because there is nothing "materially false or misleading" in the said leaflets, this complaint has not been established.
(c)	The Respondent's Participation in Political Parties

38. This part of the petitioner's case is that the respondent was in fact affiliated with the Hong Kong Progressive Alliance (香港協進聯盟) ("HKPA") but he falsely stated that he was an independent candidate. The evidence adduced by the petitioner in support of her case is:-

(a)	the 70th issue of the HKPA's bulletin dated 30 July 2002 contains the following:-
	"新會員名單 ... 鄒秉恬 ... 亨寶時計有限公司主席 ... 荃灣議員 ... （推薦人）鄭詠基";
(b)	the petitioner discovered on 28 October 2003 (shortly before the said election) from the web site of HKPA that the respondent was referred to as a member of the executive committee of the West New Territories office of HKPA;
(c)	an article which appeared in the "Sing Pao" newspaper (dated 27 October 2003) (mistakenly said to be "Ming Pao" in para. 45 of the petitioner's affirmation) stated that:-
	"... 鄒秉恬，其名字出現在港進聯新界西辦事處執委名單上，但他否認是該政團成員 ... ";
(d)	a photograph appearing in the HKPA web site shows the respondent (together with other people) with the following caption:-
	"2002年10月18日，荃灣社群協進會會員及港進聯新界西執委一起，慶賀陳金霖議員 ... ".

It is highly likely the source of the article referred to in (c) above originated from HKPA. To that extent, the web page referred to in (b) above shares the same source with that news article.

39. Further, although the petitioner has not so stated in her affirmation, judging from the proximity of the dates in (b) and (c) above, it is also likely the article referred to in (c) above came to her notice on about 27 or 28 October 2003. There is no evidence that, between 27 or 28 October 2003 and the commencement of this petition, she raised any complaint against the respondent regarding this.

40. The respondent denies that he has ever been a member of HKPA (or having joined any political party). He does not know why he was referred to in the HKPA publications as being so affiliated. However, he recalls having once been invited by a Mr Cheng Wing Kee to attend a mainland-Hong Kong business seminar. Mr Cheng was another Regional Councilor and a member of HKPA. After the said seminar, the respondent was invited by Mr Cheng to join a youth committee, which the respondent did not consider to be connected with HKPA. The respondent deposed in his affirmation he had never attended any meeting of HKPA and definitely was not a member of its executive committee in Tsuen Wan. He also deposed he had never applied to be a member of HKPA. The respondent further states in his affirmation that when the mass media asked him about his HKPA membership (it appears from the contents of his letter (see (2) below) that it took place on 23 October 2003), he denied it immediately.

41. The respondent relies on the following matters in support of his denial of this allegation:-

(1)	he sent a complaint letter to "Ming Pao" protesting the newspaper's reference to him (on 25 October 2003) as a member of HKPA;
(2)	he sent a letter dated 25 October 2003 to HKPA requesting HKPA to delete all references to him in the HKPA web site;
(3)	a letter dated 31 March 2004 from HKPA which certifies that the respondent is not its member;
(4)	his previous stance over a number of political issues shows that he was independent because his stance differed from that of HKPA:-

(a)	jointly organised activities with the pro-democratic camp on public issues such as the Tsuen Wan abattoir;
(b)	his opposition to the enactment of laws pursuant to Article 23, Basic Law and his calling on the masses to join the rally held on 1 July 2003;
(c)	he called for the Chief Executive to step down from his office.

The respondent also relies on para. 6, exhibit "D1" (a set of admitted facts). It states in effect that the HKPA web page which purports to show his portrait and personal particulars in fact shows those for Mr Chan Kam Lam.

42. Despite the skilful cross-examination, I cannot be satisfied that the respondent's case can properly be regarded as untruthful and can therefore be rejected. While his two letters referred to in para. 41(1) and (2) above can be regarded as self-serving, the same cannot be said about his political stance (see para. 41(4) above). The HKPA letter cannot be totally ignored either. In view of the whole circumstance, I am not prepared to adopt the restrictive meaning given to that letter by the petitioner.

43. Having so concluded, I find that the petitioner has not been able to establish this part of her case either, bearing in mind the need for cogent evidence in relation to an allegation involving criminal conduct: see the above discussion relating to the standard of proof.

44. The petitioner also relies on the respondent's testimony (in cross-examination) to the effect that the respondent was not too bothered with whether the youth committee introduced by Mr Cheng (see para. 40 above) was part of the HKPA. I consider that this testimony has to be understood in its proper context (see para. 40-42 above). Furthermore, I conclude that it cannot advance this part of the petitioner's case. After all, whether the petitioner can establish this part of her case depends on whether the objective fact of political affiliation can be established. The respondent's belief or knowledge (or the lack thereof) is irrelevant.

Statutory Defences

45. Having concluded, based on findings of fact, that none of the petitioner's allegations have been established, it is strictly unnecessary to deal with the issues falling within this heading. I shall make some brief observations for completeness nevertheless. In this connection, the following provisions are either discussed, or actually relied upon, in this petition: ss. 26(4) and 31(2), Cap. 554. No reliance has been placed by the respondent on s. 30, Cap. 554 and no detailed discussion has been made on that provision by the parties.

46. S. 26(4), Cap. 554 has already been referred to in para. 30 above. The respondent does not rely on this as a defence. I am inclined to agree with the petitioner's contention that this defence can only avail a person in a criminal prosecution (and not an election petition).

47. S. 31(1), Cap. 554 enables a person (including a candidate) to apply for an order under s. 31(2). The last-mentioned sub-section stipulates that:-

"On the hearing of an application under subsection (1), the Court may make an order relieving the applicant from penalties and disqualifications that are imposed by, or could be imposed under, an electoral law for any act or omission of the applicant that, but for this section, would be illegal conduct at an election, but 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" (emphasis supplied).

48. The petitioner submits that this section cannot assist the respondent in an election petition. Among the several grounds put forth, the petitioner says that no "penalties" or "disqualifications" are involved in such a petition. The respondent contends otherwise. In relation to this dispute:-

(a)	the petitioner submits that the word "penalties" refers to matters set out in ss. 6, Cap. 554 (heading: "What penalties can be imposed for corrupt conduct at elections?") and 22, Cap. 554 (heading: "What penalties can be imposed for illegal conduct at elections?");
(b)	the petitioner submits that the word "disqualifications" refers to provisions such as s. 24, Cap. 547 (heading: "Disqualification of elected members");
(c)	the wordings of s. 30(1) and (2), Cap. 554 show that the legislature may intend there to be a distinction between determining if someone is (or is not) "duly elected" and whether he should be "subject to disqualifications". Hence, a determination at the end of an election petition that someone is not "duly elected" is not the same as "disqualifying" him.

In view of the above, I am also inclined to agree with the petitioner.

Conclusion

49. The petition is dismissed. In accordance with s. 55(2), Cap. 547, I determine that the respondent has been duly elected at the said election.

50. This petition also relies on s. 49(1)(a)(iii), Cap. 547 (corrupt or illegal conduct generally prevalent at or in connection with an election). Since I already found that the petitioner has been unable to establish any corrupt or illegal conduct on the respondent's part, and since the facts relied upon by her in support are the same, this limb of the petition also fails.

Other Matters Arising

51. I should also consider the matters arising from the provisions in ss. 55(5) and (7) and 60, Cap. 547.

52. S. 55(5), Cap. 547 provides:-

"The Court may, on its own initiative, provide the Secretary for Constitutional Affairs, the Electoral Affairs Commission or the Director of Home Affairs with a report on any matter arising in the course of the trial of an election petition if in its opinion the matter should be reported" (emphasis supplied).

This provision is about the court making a report "on its own initiative". Such power therefore appears not dependent on the parties' invitation (or representation). I do not consider there is any matter herein which should be so reported.

53. S. 55(7), Cap. 547 provides that:-

"If, at the end of the trial of an election petition, it appears to the Court that a specified person may have engaged in corrupt or illegal conduct at or in connection with the election, the Court is required to provide the Director of Public Prosecutions with a report giving details of the conduct" (emphasis supplied).

In view of the outcome of this petition, there is no requirement to so report.

54. S. 60, Cap. 547 is only engaged if there is a finding that "a person who was originally declared to have been elected as an elected member at an election was not duly elected" and hence also does not arise in this petition.

55. The respondent initially sought to cross-examine the petitioner. When queried by the court why that was necessary, the respondent explained that he intended to elicit several facts through cross-examination. At the court's suggestion, the respondent managed to obtain the petitioner's agreement as to those facts. They now appear in exhibit "D1" which is a set of admitted facts agreed to by the parties.

Costs Order Nisi

56. There is no apparent reason to depart from the usual rule that costs should follow the event. There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this petition be paid by the petitioner to the respondent to be taxed if not agreed.