DAVID HO v. SECRETARY FOR JUSTICE

HCMP 1766/2021

[2022] HKCFI 566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1766 OF 2021

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D E C I S I O N

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A.    Introduction

1.  The Applicant was an uncontested candidate in the 2021 Election Committee Subsector Ordinary Election for the Import and Export Sector (“Election”), which was held on 19 September 2021.  As there were no more candidates than vacancies, he was automatically elected, and the result was gazetted on 23 September 2021.

2.  Under section 37(ID) of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”), he was required to lodge the ‘Return and Declaration of Election Expenses and Election Donations’ (“Election Return”) within 30 days from the gazette date, namely by 23 October 2021.  He failed to do so.

3.  On 4 November 2021, he filed an Originating Summons seeking an order to allow him to lodge an Election Return out of time, under section 40 of the ECICO.

4.  The Applicant has filed two affirmations in support of his application, one by himself and one by Ms Man Ching Yi, his assistant for the purpose of the Election.  Both affirmations are dated 4 November 2021. The Secretary for Justice (“SJ”) has not filed any affirmation in response.

5.  The Applicant has also filed two sets of written submissions, prepared by Counsel Mr Lincoln Cheung and Mr Tony CH Chow.  The SJ has taken a neutral stance, but has filed a set of written submissions by Mr Bryan Fung, Government Counsel, to draw the Court’s attention to the relevant law and factual matters which may cast doubt on the Applicant’s case.

6.  Though originally fixed for oral hearing, it was agreed that the application could be properly determined on paper.  Having considered all the materials before the Court, this is my Decision.

B.    Background

7.  The following factual background is taken from the Applicant’s two affirmations.  Although subject to some comments, the affirmations stand largely unchallenged by the SJ.

8.  The Applicant was born in 1965 and was in his 50s at the time of the Election.  He is a University graduate and has studied up to obtaining a Master’s Degree in Engineering from Cornell University.  He is currently the CEO of a company known as Macy’s Candies Limited, which was founded by him in 1992.  Before the Election, he had not run in any election and had no experience in assisting any election or supporting any candidates. He says he did not engage legal professionals and, because he had no political affiliation, nor did he have any organisational assistance for understanding the legal obligations of an election candidate.  The Applicant did enlist some administrative support from Ms Man, who is an “administrative officer” at the Applicant’s company.  Though the Applicant does not say so, perhaps Ms Man is his secretary or PA.  In any event, Ms Man acted as a volunteer, and had no legal background or election experience (and so, it might be said, was in no better position from knowledge or experience than the Applicant).

9.  He submitted his nomination form on 9 August 2021. When the nomination period closed on 12 August 2021, he learnt from news media that there were only 17 candidates standing for the 17 vacancies in the Import and Export Sector, meaning that he was an uncontested candidate in the Election.

10.  Knowing that he would be elected by default, he was minded to minimize resources spent on the Election.  Throughout the entire election period from 12 August 2021 to 19 September 2021, he did not organize any election campaign or make any advertisement.  Thus, he incurred no expenses.  Nor did he receive any donation.

C.    The Applicant’s “Knowledge and Impression”

11.  Whilst it is not exactly put like this in his affirmation, taking his evidence as a whole, the Applicant perhaps means that he was under the mistaken belief that, since he had made no advertisement and incurred no expenses and received no donation, he did not have to lodge an Election Return.  He did not realize that his belief (or “impression”) was mistaken until it was too late.

12.  The Applicant says he gained his “knowledge and impression” – which perhaps is to be taken to mean the mistaken belief – from the materials which had been supplied to him as a candidate.

13.  The materials he had been supplied with are a set of ‘Notes for Candidates’, a ‘Candidate Folder’ and a video of a ‘Briefing Session’ organized by the Registration and Electoral Office (“Office”).  The first two items were given to him when he submitted his nomination form on 9 August 2021. The Briefing Session was held online on 25 August 2021.

14.  The Notes to Candidates is a short document, which is supposed to be the first thing a candidate reads.  The English version of the Notes to Candidates is three and a half pages long.  The Chinese version is two and a half pages long.

15.  In comparison, it is fair to say that the Candidate Folder is voluminous – it is more than 780 pages (including both the Chinese and the English versions) and consists of more than 50 documents. But the Notes to Candidates does provide some guidance on how the Candidate Folder should be approached.  At §9 of those Notes to Candidates, it says:

A Candidate Folder is to be given to you together with this Notes to Candidates.  The folder includes:

    Forms that you may need to complete (including notice of appointment of election agent, notice of appointment of counting agents, information sheet in relation to election advertisement etc.);

    Action Checklist for Candidates;

    Website address and QR code on the forms and legislations in relation to Election Committee Subsector Elections;

    Website address and QR code on “Guidelines on Election-related Activities in respect of the Election Committee Subsector Elections”;

    CD on “How to Complete the Return and Declaration of Election Expenses and Election Donations”;

    “Clean Elections Information Booklet” prepared by the ICAC;

    Guidance on Electioneering Activities by Office of the Privacy Commissioner for Personal Data;

    Invitation Letter to the Lots Drawing Session with admission tickets, authorization letter and other relevant information;

    Invitation letter to the briefing session for the candidates; and

    Undertaking by Candidate for Display of Election Advertisements.

Please read the above-mentioned documents and pay attention to the relevant details and deadlines.

16.  The Applicant says he did follow the instructions on the Notes to Candidates and did read the “documents in the Candidate Folder”.  It is not entirely clear whether he had read only the items highlighted in §9, or all of the more than 50 documents in the Folder.  In any event, he says that, once he learned his candidacy had been secured, he had only read the documents once to familiarise himself with the contents, and “had not examined the texts in the Candidate Folder in great detail”.

17.  The Applicant says that, from his reading, he had gained his knowledge and impression about what he had to do with the Election Return mainly from three documents: (1) the Election Return itself; (2) the ‘Guide to Return and Declaration of Election Expenses and Election Donations’ (“Return Guide”); and (3) the ‘Frequently Asked Questions – Election Return’ (“Election Return FAQ”).

18.  The Applicant says that, from these three items, there was no clear guidance on whether a candidate like him who had made no advertisement, incurred zero expenses and received no donations would still have to lodge the Election Return.

19.  The (blank) Election Return is the first item under the “Forms” section in the Candidate Folder.  The actual form is 20 pages long, with 7 pages of ‘Notes on Completion of the Return on Declaration of the Election Expenses and Election Donations’ (“Notes”).  Like most of the other documents, it is a bi-lingual English and Chinese form, though I shall refer only to the English text.

20.  On the first page of the form of Election Return, after the heading, the first line reads:

Note:   Please read the [Notes] before completing this return and declaration in BLOCK LETTERS.

21.  That is followed by the declaration that:

1.  I am the candidate named above at the above 2021 Election Committee Subsector Ordinary Elections.

2.  I hereby make the following return of election expenses incurred by me and by my election expense agent(s) on my behalf at the above election, and all election donations received by me, by my election agent and by any other person(s) on behalf of me in connection with the above election.

22.  In the Notes:

 (1)  §14 reads that “Candidate must submit the completed return and declaration to [the address of the Office] by the statutory deadline as required under [section 37(1D) of ECICO]”.

 (2)  §15 provides that the return and declaration and all attachments will be kept at the Office for public inspection.

 (3)  §17 draws attention to the relevant sections under ECICO, including the sections on potential criminal liability for failing to lodge an Election Return.

 (4)  §18, amongst other things, provides an enquiry hotline telephone number which may be called “[i]f the candidate has any questions in completing this return and declaration”.

23.  According to the Applicant, the part giving rise to his impression is at page 4 of the Election Return, in a section headed “Remarks”.  The last two sentences of the first numbered paragraph under this section read (underlining in original):

The candidate should declare the expenses for each and every item of election advertisement no matter how minimal the value of the expense is.  Even if the expense for a particular election advertisement is zero, the candidate should also declare such item for checking by the Registration and Electoral Office.

24.  The Applicant points to the underlined remark and says that he thought it covers the situation when an election advertisement was made at zero cost, but that it does not cover his case when no advertisement was made at all, or further where no expenses had been incurred throughout the Election.

25.  The second document is the Return Guide.  The Applicant says he had reviewed the Return Guide and did not see any guidance on whether an Election Return is required when no election expenses have been incurred and no election donations have been received.  The Return Guide includes a sample Election Return which, of course, has the same content mentioned above.  But it also has a notionally completed Election Return, with the basis for many entries explained as part of the guidance intended.

26.  The third document is the Election Return FAQ. In his affirmation, the Applicant focused on Question 5 and (part of) its Answer.  They read as follow:

Q5:  If the costs of an election advertisement of a candidate is zero, does the candidate still need to declare at Section D of the election return?

A5:  ... Even if the expense for a particular election advertisement is zero, the candidate should also declare the item.

27.  Again, the Applicant says he understood that this answer only deals with the case where an advertisement has been made at zero cost, but does not shed light on the situation where no election expenses have been incurred at all.  So, the Applicant says that he “did not find it helpful” – where it seems “it” is a reference just to Question 5 and its Answer, rather than to the Election Return FAQ as a whole.

28.  The Election Return FAQ (dated July 2021) was for some reason not exhibited by the Applicant.  But it is publicly available from the official website of the Office.  There are 23 FAQs in total.  It can be noted that Questions 15, 19 and 20 and their answers read as follows (emphasis added):

Q15:    Is a candidate still required to submit the election return even if his/her nomination was ruled invalid, or he/she has withdrawn from the election during the nomination period?

A15:    Under section 2 of [ECICO], “candidate” means a person who stands nominated as a candidate at an election, and also means a person who has publicly declared an intention to stand as a candidate at the election before the close of nominations for an election.  Therefore, even if a person withdraws his/her nomination after submitting the nomination form, or is decided by the Returning Officer as not validly nominated, or has publicly declared an intention to stand as candidate at the election before the close of nominations for the election but has not submitted the nomination form in the end, he/she will be regard as a candidate of the election, and must submit the election return before the statutory deadline (regardless of whether he/she has incurred election expense or accepted election donations).

Q19:    When should the candidate submit the election return?

A19:    Candidate must submit the completed election return to the Chief Electoral Officer … before the statutory deadline as required under section 37 of the [ECICO].  The [Office] will issue letters to inform candidates of the deadline for lodging election returns after the election is settled.

Q20:    What are the consequences if a candidate submits the election return after the deadline or fails to lodge election return?

A20:    Under section 38 of the [ECICO], a candidate who fails to lodge an election return as required by section 37 without a reasonable cause, commits an offence and is -

(a)  if tried summarily, liable on conviction to a fine at level 5 and to imprisonment for 1 year; or

(b)  if tried on indictment, liable on conviction to a fine of $200,000 and to imprisonment for 3 years.

Under section 40 of the [ECICO], if a candidate is unable or has failed to lodge an election return as required by section 37 before the end of the permitted period with reasonable cause, he/she can apply to the Court of First Instance under section 40(1) of the [ECICO] for an order allowing the candidate to lodge with the appropriate authority an election return within such further period as the Court of First Instance specifies.

29.  The Applicant does not mention these Questions and Answers in his affirmation, and it is not clear if he read them and, if so, what his interpretation of them might have been.

30.  The Applicant says that he also noted that there was a DVD titled ‘How to complete the Return and Declaration of Election Expenses and Election Donations’, which was also listed under §9 of the Notes to Candidates. But, he says there was no mention in it as to whether an Election Return was required in the event that no election expenses were incurred and no election donations were received.

31.  The Office held the Briefing Session online on 25 August 2021.  The Applicant said due to his unfamiliarity with the technology, he did not manage to attend the online session despite his attempt.  However, Ms Man eventually found out that the video of the online session was uploaded to the Office’s website and she had downloaded it for the Applicant.  The Cantonese and English audio channel were mixed and makes it more difficult to be heard.  The session was 1 hour and 40 minutes. Towards the end, there was a question and answer sessions.  The following is relevant to the Election Return (emphasis added):

Question:   If you have no election contest in a subsector from today to the end of the election period, all the meetings, talks I give…do you have to declare the expenses or lodge all the materials?

Answer:     For the election expenses, the expenses incurred to promote the election of a certain candidate, but if something happens after the election has taken place, unless it is still linked to the election in some way, otherwise the material (the talk) will not be treated as having to do with someone’s election, but when you talk about someone elected by default, this candidate will still have to make the declarations, all the expenses will have to be incorporated into the election return, in some cases, there may be prior commitments to expenses that are paid afterwards, these things still have to be declared. But for someone who already elected and something happens afterwards it wouldn’t be treated and declared but I cannot exhaust every possibility there so we need to look at them on a case-by-case basis.

32.  The Applicant says he understood from the question and answer that where a candidate was returned uncontested (like himself), expenses thereafter would not be treated as election expenses.  He says that, although it was mentioned in between that “someone elected by default, this candidate will still have to make the declarations”, there is no guidance on the situation where a candidate has not incurred any expenses.

33.  The Applicant says that from the above materials, he gained the impression that if he incurred any election expenses, or received any election donations, he must submit and Election Return to the Office after the Election.  He also says that, all in all, after having reviewed the Candidate Folder and the Briefing Session, he “figured out that if election expenses were incurred and/or election donations were received by a candidate, that candidate must submit an Election Return”.

34.  Though it may be a matter of choice of language, I note that the Applicant does not put it the other way round.  He does not say in terms that he “figured out” or believed that if no election expenses were incurred or donations received by a candidate, then that candidate need not submit an Election Return.  (This may be contrasted with the language used by Ms Man in her affirmation, where she does depose to having had the “genuine but mistaken belief”.)

35.  But, in any event, the Applicant also admits that there were documents which he had “overlooked” – even though these were documents which were highlighted in §9 of the Notes to Candidates (see above).  These are (1) the Action Checklist and (2) the booklet titled ‘Clean Elections Information Booklet – Election Committee Subsector Elections and Chief Executive Election’ (“ICAC Booklet”).

36.  The Applicant admits that these two documents do state that he would have to lodge an Election Return notwithstanding that no expenses were incurred and no donations were received.  But he says he only realized that these documents are relevant to the Election Return subsequently.

37.  The English version of the Action Checklist is 15 pages long.  It is made in the form of a 2-column timetable which sets out in chronological order the key steps to be taken at different milestone dates from the lead-up to the Election to after the Election.

38.  At page 13 of the Action Checklist, one of the key milestone dates in the left column is “Before the statutory deadline for the submission of election returns as required under section 37 of the ECICO”.  In the right column, it is stated (bold and italics in original) that:

Candidates are required to submit an election return even if no election expenses have been incurred or no election donation has been received.

39.  I note that the Chinese language version of the Action Checklist also has the same message in bold and italics.

40.  The ICAC Booklet was not exhibited in its entirety, but apparently there is a list of Questions and Answers in it.  The relevant question is Q17.  Q17 groups together many common questions one would suppose a candidate may have in relation to the Election Return as follows (emphasis added):

What are the points a candidate should take heed of while submitted his election return? Is a person required to submit an election return if he has withdrawn his candidature after being nominated as a candidate at the election or his nomination has been ruled invalid? What about if he is returned uncontested, not elected or has not incurred any election expenses? What remedial actions can a candidate take if he fails to lodge the election return within the period as required by the law.

41.  The corresponding answer is broken down into numerous bullet points.  The relevant bullet point is as follows (emphasis added):

According to section 2 of the ECICO, a “candidate” is defined not only as a person who stands nominated as a candidate at an election, but also a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate at the election.  A person has to submit his election return to the CEO within the period as required by the ECICO even if he has withdrawn his nomination after being nominated as a candidate at the election or his nomination has been ruled invalid, or he is returned uncontested, or not elected, or has not incurred any election expenses.

42.  There is also a “Dos and Don’ts Checklist” in the ICAC Booklet.  One of the items on the checklist is as follows (emphasis added):

Do lodge the election return with the CEO within the period as required by the law if a person, at any time before the close of nominations for the election, has publicly declared an intention to stand as a candidate at the election; even if he has withdrawn his nomination after having been nominated as a candidate at the election or his nomination has been ruled invalid; or the candidate is returned uncontested, is elected or not elected or has not incurred any election expense.

43.  The Applicant admits that it is “inexcusable” for him to have overlooked those materials, which clearly stated the need for a candidate to lodge an Election Return notwithstanding that no expenses were incurred and no donations were received.

D.     The Election and Aftermath

44.  The Applicant was successfully elected by default on 19 September 2021.

45.  On 24 September 2021, the Office sent a reminder letter (“Reminder Letter”) to the Applicant’s office address.  The English version of the Reminder Letter is two pages long.  On the first page, under the heading of “Submission of Election Return”, part of it states that (bold in original, underlining emphasis added):

According to section 37 of the [ECICO], a candidate at the above election must submit to the Chief Electoral Officer (“CEO”) the [Election Return] by the statutory deadline, unless the deadline has been extended by the Court under section 40 of the [ECICO].  A candidate who fails to comply with the requirement commits an offence and is liable on conviction to a fine of $200,000 and to imprisonment for 3 years.

The result of the 2021 Election Committee Subsector Ordinary Elections was published in the Gazette Extraordinary on 23 September 2021. To comply with the legal requirement, please complete the election return and submit it to the CEO ([the address of the CEO]) on or before 23 October 2021. The election return can be submitted to the above address by post by courier, or in person by the candidate or any person on behalf of the candidate.  If the election return is submitted by post, the postmark must be dated on or before 23 October 2021.  Please note that even if you did not incur any election expenses or receive any election donations, you are required to complete and submit the election return to the CEO.  Besides, the statutory declaration in the election return should be made before a Commissioner for Oaths, a Justice of the Piece or a practising solicitor.

The REO will check the election returns and refer any regularities (e.g. errors, omissions, understatements, miscalculations, unreasonable expenses, apparent breaches of the law, etc.) to the Independent Commission Against Corruption (“ICAC”).  Therefore, please read the Guide to election return, the video on how to complete the election return and the Frequently Asked Questions, and be careful in completing the election return. Please also refer to the attached Checklist and the Guidelines for Candidates on Election Return before submitting the election return to ensure that the election return lodged meets the requirements of the [ECICO].  Unless relief has been granted by the Court in response to your application under section 40 of the [ECICO], or the arrangement for handling election return with minor errors or false statements as detailed in section 37A of the [ECICO] is applicable to your case, you are not allowed to amend any details in the election return after the statutory deadline (i.e. 23 October 2021).

46.  Though I can return to the point later, the thrust of this part of the Reminder Letter is all about filing an Election Return, and not about deciding whether or not to file an Election Return in the candidate’s particular circumstances.  It might also be noted that, if there was any uncertainty, the Reminder Letter ended by stating “For enquiries, please call our Hotline at [number given]”.

47.  The Applicant says that Ms Man “received and opened the Reminder Letter”, and Ms Man informed him that the Office reminded the candidates to submit Election Returns, remove election advertisements and to apply for return of election deposit.  I infer from that evidence that the Applicant did not himself read the Reminder Letter, even though it is addressed to him.

48.  The Applicant says he asked Ms Man to prepare “the necessary forms to be signed” for submission.  Ms Man prepared some forms, but an Election Return was not among them.  The Applicant says that after Ms Man prepared documents for his signature, he asked her to confirm those were all the paperwork required, to which she responded affirmatively.  The Applicant does not say that he asked specifically about the Election Return – even though he had been told that the Reminder Letter specifically reminded candidates to submit an Election Return (as well as to take other action).  Nor does he say that he himself also checked, and clearly he did not.

49.  But, it seems that, since both the Applicant and Ms Man were under the mistaken impression or belief that the Applicant did not have to submit the Election Return, the error was not discovered by either of them.

50.  On 20 October 2021, about three days before the deadline of 23 October 2021, the Office sent an email reminder (“Reminder Email”) to the Applicant’s designated election email account which urged him to submit the Election Return.  The Reminder Email has not been exhibited either by the Applicant or Ms Man.  But, in his affirmation, the Applicant says that the Reminder Email stated, amongst other things, (in Chinese) that:

Please note that even if the candidate did not incur any election expenses or receive any election donations, an Election Return should still be submitted.

51.  The Applicant said he relied on Ms Man to manage his election email account.  Whilst he entered his account to check emails from time to time, he may not identify each email sent to his account.  Simply put, whilst the Applicant admits that he inadvertently failed to take timely notice of the Reminder Email so that he “was therefore not aware of its contents”, in effect he says he missed the Reminder Email himself and because his attention was not drawn to this email by Ms Man.

52.  On this point, I note that the email address used by the Applicant for the purposes of the Election is at the domain name of his company.  It does not look like, and the Applicant does not say that it is, an email account used specifically or only for the purposes of the Election.  In fact, there is some support for the idea that this was an email account used generally by the Applicant in his own affirmation.  There, he states that he “receives [present tense] numerous emails every day”, as part of his explanation as to why he might not identify each email sent to the account.

53.  Nevertheless, I also note that the Applicant says he is not proficient with the latest technology, and relies heavily on his assistants in daily tasks involving computers and other technology devices, which involves receiving and sending emails.

54.  The Applicant says that it was only on 28 October 2021, when the Applicant received a call from the Office, that he realized that he had to lodge an Election Return and had missed the deadline.  The Applicant immediately sought legal advice and then quickly informed the Office he would apply for extension of time from the High Court.

55.  On the next day, he sent his draft Election Return to the Office and informed the latter that he would lodge the same upon the direction of the court.

56.  The Applicant expresses the belief that the failure to file the Election Return had no impact on the correctness of the overall picture of the election expenses, that he had no intention to conceal any election expenses or election donations, and that the failure was due to inadvertence.  Though he does not use the word “carelessness” in the main text of his affirmation, the Applicant’s concluding section of his affirmation is headed “My Inadvertence and Carelessness leading to the Omission”.

E.   Ms Man’s evidence

57.  Ms Man’s affirmation is to corroborate that of the Applicant.  She says (and does so in terms) that she had the genuine but mistaken belief that, if the Applicant did not incur any election expenses or receive any donations, he did not have to lodge the Election Return.  She also says that when she read the Reminder Letter, she had overlooked the line “even if you did not incur any election expense or receive any election donations, you are still required to complete and submit an Election Return”.

F.   Applicable Principles

58.  As already stated, this application is made under section 40 of the ECICO, for relief from failure to have complied with section 37 of the ECICO.  It is probably not necessary to set out in full the provisions in section 40, which identify the relevant threshold.

59.  In Yu Hon Kwan v Secretary for Justice [2021] HKCFI 3022 at §§10-11, and as is applicable to the arguments in this case, I offered my own summary of the applicable principles as follows:

 (1)  A candidate at an election must lodge with the appropriate authority an election return, and must ensure that the election return is lodged within the relevant statutory period.

 (2)  A candidate who fails to lodge an election return as required can apply to the Court for an order allowing him to lodge an election return within such further period as the Court specifies.

 (3)  On such an application, the Court may in its discretion make the order sought, but only if it is satisfied that the inability or failure to lodge an election return as required by section 37 was attributable 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 was not due to the applicant’s bad faith.

 (4)  A candidate may also apply to the Court to enable him to correct any error or false statement in an election return.

 (5)  On such an application, the Court may in its discretion make the order sought, but only if it is satisfied that the error or false statement was due to: (a) misconduct of an agent or employee of the applicant; or (b) inadvertence or an accidental miscalculation by the applicant or any other person; or (c) any reasonable cause, and was not due to the applicant’s bad faith.

 (6)  The word “inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith, identifying that inadvertence and lack of bad faith are two separate elements.

 (7)  Hence, the burden is on the applicant to show one of the preconditions for the grant of relief, and the absence of bad faith.

 (8)  Where a deliberate decision has been made to exclude an item from an election return, reliance cannot be laid on “inadvertence”. But the applicant may rely on the “any reasonable cause” exception.

 (9)  Ignorance of the law is no defence, and it is incumbent upon a candidate to familiarise himself with the election rules when meeting the requirement to lodge an election return setting out the expenses incurred and donations received.

 (10)  Indeed, participants in elections should be aware that elections and the attendant legal obligations are serious matters, such that they should take reasonable steps to fulfil their legal obligations as candidates.

 (11)  So, there is a distinction between (a) a case where an applicant simply turned a blind eye or acted recklessly as to the legal requirements, and (b) a case where an applicant has tried to understand what the legal requirement was, but failed to meet it correctly.

 (12)  The Court’s power to grant relief is discretionary, and it is important that such discretion be exercised in a manner consistent with the integrity of the election legislation.

60.  Subject to revisiting the extent of, or the limits, to the concept of “inadvertence”, I adopt these principles for present purposes.

61.  Mr Cheung for the Applicant seeks to rely on the case of Tsang Wai Ming (unreported, HCMP 3463/2003, 15 April 2004), which was another case involving an uncontested candidate who was automatically elected and subsequently failed to file an election return.  On evidence in that case, the applicant did not read the election guidelines in detail and only read it casually, and failed to get the clear message that even if he had no receipt he still had to file the election return.  The Court accepted that failure was the result of the misunderstanding as to the effect of the law and failure fully to appreciate what is set out in the guidelines, and that it fell within the situation of “inadvertence”.  The Court also noted that the case involved the first time that the ECICO was made applicable to the material type of election, and the Applicant here also relies on the fact that the Election in this case was newly held as a result of changing composition of the Election Committee.

62.  Nevertheless, I also pointed out in the Yu Hon Kwan case that whilst the facts and results of other cases may sometimes be considered by way of some comparison or analogy, each particular case requires the proper application of the principles to the particular circumstances of the particular case, and the exercise of discretion in and to those circumstances.

63.  On the “inadvertence” limb, Mr Cheung also refers to the approach taken by Lord Guthrie in Smith v MacKenzie [1919] SC 546 (Court of Session) where at 549 it was stated (slightly broken down by me for ease of reading):

… the Courts have kept three things in view in deciding whether illegal practices can be excused on the ground of inadvertence coupled with good faith.

The first question the Court is accustomed to ask is: what kind of person is the applicant?  If he is a professional man, ignorance of law cannot excuse his inadvertence, except, it might be, in the case of ambiguity in a statute.  He is bound to know that the whole of these matters are regulated by Act of Parliament.  He has easy access to the Acts of Parliament and to manuals on election subjects, and he is accustomed to consult such works.  Further, if the Applicant, although not a professional lawyer, has previous election experience, the fact that he may have forgotten that experience cannot excuse his inadvertence.

The second question the Court asks is: what is the nature of the illegal practice?  If it is something which the candidate or his agent had an interest to do, or which might affect the return of the candidate, the practice will be highly suspect.  But if, on the other hand, there appears to be no reason whatever, personal or otherwise, why an illegal practice should have been followed, then the presumption is that what was done was done in good faith and merely from negligence.

The third question is: what attitude has the applicant taken up when the mistake was discovered?  Has he treated it lightly or defiantly?  Or has he done everything he possibly could to put it right?

64.  These questions seem to me to focus on the consideration of good faith or bad faith in deciding whether the relevant activity was inadvertent.  Indeed, it would seem obvious that if the activity was performed in bad faith, it would unlikely be found to have been inadvertent.

65.  But, the opposite does not automatically follow.  Indeed, I think the question arises as to what are the limits of “inadvertence” for the purposes of section 40(2)(c).  The word appears in a limb which also mentions “accidental mistake”, which suggests a lack of deliberateness.  Next, as I pointed out above, “inadvertence” is normally taken to mean negligence or carelessness where the circumstances show an absence of bad faith, identifying that inadvertence and lack of bad faith are two separate elements.

66.  But, firstly, I do not think “negligence” is meant in this context to have the precise meaning given to the word in the context of the tort of negligence.  Secondly, if they are two separate elements, surely the mere exclusion of one (bad faith) cannot automatically mean the satisfaction of the other (inadvertence).  If an applicant has to show both inadvertence and the absence of bad faith, there must be room on the facts of any particular case for an applicant to demonstrate the absence of bad faith yet fail to show inadvertence.

67.  Looking at the other limbs for guidance, it is obvious that showing “absence from Hong Kong” for the purposes of section 40(2)(a) or (b) will not of itself demonstrate the absence of bad faith, or vice versa. Some assistance is also to be found in the “reasonable cause” limb in section 40(2)(d). 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.

68.  Further, where (a) ignorance of the law is no defence, and it is incumbent upon a candidate to familiarise himself with the election rules, and (b) the Court’s power under section 40 is to be exercised in a manner consistent with the integrity of the election legislation, it seems to me that there must be some limit on the degree of carelessness and negligence as would satisfy the threshold, even in the absence of bad faith.

69.  I do not think that a candidate should expect the Court to grant relief simply because he says he was careless or negligent. Granting relief too readily will simply encourage a tendency for people not to take the law seriously enough.  This ties in with the distinction between (a) a case where an applicant simply turned a blind eye or acted recklessly as to the legal requirements, and (b) a case where an applicant has tried to understand what the legal requirement was, but failed to meet it correctly.

70.  Hence, it seems to me that – depending on the particular facts of any case – an act or omission may be so unreasonably careless or negligent as not to fall within “inadvertence”, even if the line is not crossed into bad faith.

71.  Lastly, even if that is not so, the point may come into the discretionary mix in the decision whether or not to grant the relief.

G.    Whether to Grant Relief

72.  I accept that there was no real practical incentive for the Applicant to have chosen not to file an Election Return.  His Election Return would be a nil return, and – other than the time and trouble saved in not having to fill out and file a nil return – there was no benefit to be gained by not lodging the Election Return on time.

73.  How that affects the consideration as to the absence of bad faith on the Applicant’s part is something to which I can return.  But logically, not least by reference to the structure of section 40 of the ECICO, it makes sense first to consider whether the Applicant can satisfy any of the statutory ‘gateway’ requirements under section 40(2)(a)-(d).

74.  The Applicant seeks to rely on the “inadvertence” limb in section 40(2)(c).  As set out above, the Applicant says that he had read three documents in the Candidate Folder which supposedly formed the basis of his mistaken belief – or “knowledge and impression”, to use his own words.  He also says that he watched the Briefing Session which did not change his knowledge and impression (or correct his mistaken belief).

75.  It might be summarised that, in his affirmation, the Applicant says that those texts to which he had paid attention simply did not “shed light” on his situation and/or he “did not find it helpful”.  On that basis, it seems to me the obvious question which arises is why the Applicant would have believed that his situation does not require the lodging of an Election Return, when there was no guidance he thought applicable to him.  To use his own words, the Applicant is saying that he actually had no “knowledge” as to whether or not he should file an Election Return, and the logical “impression” was really simply one of uncertainty.

76.  Indeed, nowhere in his affirmation does he point to any document or text which would suggest that a candidate does not have to lodge a return when no expenses were incurred or no advertisement was made.  Nor does he explicitly state that he held such a belief (although it was submitted on his behalf by Mr Cheung that must be the logical point intended).

77.  It is also unsatisfactory – and some might think it is rather convenient – that the Applicant says (1) he paid attention to those documents which did not make it clear that he should file an Election Return, but (2) he “overlooked” or failed to pay attention to a rather greater number of documents which made it absolutely plain that he should file an Election Return.

78.  But, even taking his evidence at face value, the Applicant must be taken to have made at least one deliberate decision, and probably two deliberate decisions.  Firstly, despite not being able to find guidance specifically dealing with his own situation, the Applicant must have chosen not to make any enquiries to resolve the uncertainty (despite the provision of the Hotline number and the invitation to call it to make enquiries).  Secondly, despite the remaining uncertainty, the Applicant must have chosen not to make and file an Election Return.  Indeed, there must have been some sort of consideration or thinking linking the “impression” given by his observation that there were no guidelines for his situation and the conclusion that he did not have to lodge the Election Return.

79.  Such a conscious decision not to lodge the Election Return is akin to the decision not to fill in a donation item in the return in Re Liu Sing Lee [2003] 3 HKLRD 162, where the applicant had considered the matter and eventually came to the view that that donation item did not have to be declared since it was given free of charge.

80.  Therefore, on the compelling inference to be drawn from his own evidence, the Applicant’s decision not to file and Election Return was deliberate and not accidental, and does not fit into the “inadvertence” limb.

81.  I have considered whether the application should be allowed on the “reasonable excuse” limb in section 40(2)(d).  I take into account that he had no prior election-related experience, and that he had taken immediate action to remedy the situation once he was told of his error. I also note that he only had Ms Man to help him and received no professional assistance.

82.  However, after careful consideration, I have come to the view that the Applicant’s failure was not the result of a “reasonable cause”.  First, the Applicant himself accepts the failure to read certain materials properly was “inexcusable”.  I agree, and if it was inexcusable it is difficult to think that it could have been reasonable.

83.  Further, the Applicant’s failure to lodge the Election Return really flowed simply from his failure to exercise the level of diligence required of a candidate to familiarize himself with the relevant election rules.  When he had no prior election-related experience, and where he chose administrative assistance from a volunteer also with no prior experience or relevant expertise, the Applicant can hardly complain that he was given too much information to assist him.  Even if some of the voluminous material was dense, and some repetitive, it was provided to him to cater for the possibility that he would not immediately understand the extent of the obligations which he assumed when he stood as a candidate.

84.  Further, both in several individual places, and taken as a whole, that material made perfectly clear that the Applicant was required to file an Election Return.  I agree with Mr Fung that the filing or not of an Election Return was hardly an intricate legal question.  It is indeed difficult to understand how the Applicant, or Ms Man, could have overlooked or misunderstood the obligation to lodge an Election Return even if no election expenses were incurred:

 (1)  There is no material which says in terms that a candidate who has incurred no expenses or made no advertisement does not have to lodge an Election Return.  The Applicant does not suggest otherwise.  So he could not have been misled by any materials provided to him.

 (2)  The (blank) Election Return, which the Applicant says he relied on as the basis of his “knowledge and impression”, contained plenty of text emphasising the importance of lodging an Election Return, and doing so on time.  Reading the document ought to have led to the “impression” that lodging an Election Return is an important and general duty for all candidates.

 (3)  The Return FAQ has only 23 questions in total.  It is not explained why the Applicant would pay close attention to the text of Question 5 and its Answer – which he says failed to give him any relevant guidance – and yet not pay close attention to Questions 15, 19 and 20 and their Answers, which emphasise the importance of filing an Election Return (including regardless of whether the candidate has incurred election expense or accepted election donations).

 (4)  The Briefing Session had a Q&A section which specified the need to file an Election Return even if elected by default.

 (5)  The reasonable action required of a candidate who thinks that there are no guidelines applicable to his specific circumstances, or is unsure of his position, is to make enquiries with the Office.  The Applicant did not.

 (6)  Whilst the Candidate Folder is voluminous, both the Action Checklist and ICBC Booklet are highlighted in the Notes to Candidates as important documents which a candidate should read carefully.

 (7)  Besides, the Action Checklist, as its name suggests, is a list that a candidate should go through to check all required actions have been performed.

 (8)  Both the Action Checklist and the ICAC Booklet made plain the need to file an Election Return in the Applicant’s circumstances.

 (9)  It was not reasonable for the Applicant not himself to read the Reminder Letter, which was addressed to him at his office, which specified steps to be taken after the election, and which made plain the need to file an Election Return in the Applicant’s own circumstances.

 (10)  It is also difficult to see how it was reasonable for Ms Man to have overlooked or ignored the clear terms of the Reminder Letter.

 (11)  It is also difficult to see how it was reasonable for the Applicant to have relied upon Ms Man to do the necessary administration of matters of the required steps set out in a letter to which he himself paid no attention.

 (12)  The Reminder Email was sent specifically to the email address identified by the Applicant for the purposes of the Election. Again, it was not reasonable for the Applicant not to have checked for relevant emails (even after he was elected uncontested), or for Ms Man to have failed to check if she was operating or managing the account.

 (13)  If the Applicant had paid sufficient attention to the materials, he would have noticed the importance attached to the Election Return.  He would not have casually reached the “impression” or conclusion that he did not have to lodge it.

 (14)  Whilst the Applicant may entrust some of his election related work to Ms Man, as the candidate he remained the one who was personally responsible to ensure that he met his legal obligations as that candidate.  It is inexcusable that he missed the clear instructions relating to a person in his position, as was set out both before the deadline expired in the Reminder Letter and in the Reminder Email, when both items reached his election office address and email address given by him for election use.

 (15)  Anyway, it was a very simple and straightforward matter for the Applicant to fill in the Election Return as a nil return.  Even if the Applicant entertained some doubt, which he chose not to resolve by making the invited enquiries, he ought to have erred on the side of caution or carefulness by completing and filing an Election Return.

85.  At bottom, the thinking process shown in the Applicant’s evidence suggests that he had placed very little priority with his legal duties as a candidate.  Being an uncontested candidate could not justify taking such a “relaxed approach” as he apparently took towards his candidacy. The impression left is of someone who, on mere perusal of only some documents, had form the viewed that he need not file an Election Return and so in effect ignored those parts of even later correspondence which contained clear reminders that he should file an Election Return, even if he had not incurred any expense or received any donation.  That cavalier approach may not amount to bad faith, but it was unreasonable and unjustified.

86.  The position that the Applicant was running for is an important one in Hong Kong.  The Applicant was a candidate for a place on the small body which will choose the highest official in Hong Kong.  A person who decides to run for such a position must be prepared properly to shoulder the duties imposed on him by our election system.  The duty to lodge an Election Return is an integral part of that system.  That duty runs through the materials, which in terms and effect state simply that if you are a candidate, then you must file an Election Return.

87.  I fully accept that the failure in this case could have made no practical difference to the result or conduct of the particular subsector of the Election, but the Applicant clearly did not place sufficient priority on his candidacy and has failed to exercise anywhere near sufficient care towards the election materials given to him.

88.  To put it another way, on the evidence, this is not a case where the Applicant has tried to understand what the legal requirement was, but failed to meet it correctly.  This is a case where the Applicant simply turned a blind eye or acted recklessly as to the legal requirements.

89.  Even if I were to accept that the failure to lodge an Election Return was the result of “inadvertence” for the purposes of section 40(2)(c) or had other “reasonable cause” – which I do not – and that there was no bad faith, the Applicant has shown that he is not a candidate who should be granted the indulgence under section 40.  So, I would still decline to allow the Applicant to lodge an Election Return out of time in the required exercise of my discretion in a manner consistent with the integrity of the election legislation.

H.   Conclusion

90.  The Applicant’s application is refused.

91.  As to costs, I accept Mr Fung’s submission that though the SJ has adopted a neutral stance in the proceedings, it was perfectly proper for the SJ to file submissions to bring various aspects of the case to the attention of the Court, which required the expenditure of public funds.  Further, the Applicant was seeking the indulgence of the Court (even though the application did not find favour).

92.  In those circumstances, I order the SJ’s costs to be paid by the Applicant, to be summarily assessed on paper.  The SJ should file a Statement of Costs for summary assessment within seven days, and the Applicant will have seven days to file any List of Objections.  Thereafter, I will make the summary assessment, and the costs assessed will be payable by the Applicant forthwith.