HUNG CHI KIT v. LEE YUE SHUN AND ANOTHER

HCAL 3852/2019

[2020] HKCFI 2968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3852 OF 2019

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REASONS FOR DECISION

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1.  These are the reasons for decision of the Petitioner’s application by summons dated 30 June 2020 for non-party discovery in respect of the video footages recorded by 2 CCTV cameras installed in two lifts at Island Place, 53 Tanner Road, North Point, Hong Kong, during the period from 7:30 am to 11:45 pm on 24 November 2019, being the election date of the Eastern District Council Election for Kam Ping Constituency.

2.  The background facts of this application have been set out in the court’s previous ruling dated 29 July 2020 (“the Ruling”) and shall not be repeated here.  The reasons herein should be read together with the Ruling.  Unless the context indicates otherwise, the expressions and abbreviations as defined in the Ruling shall be adopted.

3.  The following additional facts and matters arising from the evidence filed since the last hearing on 29 July 2020 are of note:

(1)  According to Ho Wai Yin, Deputy Presiding Officer of the Polling Station, in view of the large number of voters turning up at the Polling Station to vote on the Polling Day, polling staff were deployed by rotation to direct voters on the ground level of Island Place to queue and take the Lifts to go to the Polling Station on the 2/F to vote, and after the voters had voted they would be directed to leave by the stairs.  Ho says that this crowd control measure was put in place from 7:30 am to approximately 9:30 pm, but not during the period from around 9:30 pm to 10:30 pm because there was no crowd gathering on the ground level of Island Place seeking to go to the Polling Station to vote during that period of time.  On the other hand, it is the Petitioner’s case that the aforesaid crowd control measure was still in place until at least 10:00 pm.  This is a dispute of fact which cannot be determined at this interlocutory stage.  Its determination will have to be deferred until after the court has heard the evidence of the witnesses, including cross-examination, at the hearing of the petition. Pausing here, I should mention that the Lifts at Island Place run from the 1/F (at ground level) to the 2/F (where the Polling Station was situated) and then to the 3/F (car park level).  The 4/F is also used as a car park which is accessible by stairs.

(2)  There is a nursery and an elderly centre on the 2/F of Island Place.  However, according to the Petitioner, they were close on the Polling Day (being a Sunday).

4.  In the Petitioner’s summons, the Petitioner seeks discovery of the video footages recorded by the 2 CCTV cameras during the period from 7:30 am to 11:45 pm.  The Petitioner previously argued that the video footages for the period from 10:30 pm (close of the Polling Station for voting) to 11:45 pm was relevant to the allegation that his agents were denied entry to the polling/counting station after the end of the polling hours and before the commencement of counting of the votes.  On behalf of the Petitioner, Mr Law confirms that he “no longer relies on that factual issue to justify the present application, and hence the end time of the CCTV footages can be advanced to 10:30 pm”.

5.  Mr Law submits that the video footages from 7:30 am to 10:30 pm is relevant to the irregularity in the Election alleged in §16.7 of the Election Petition, namely:

“The aforesaid irregularities had a material impact on the Election by reason that the voter turnout for 9:30 pm to 10:30 pm (455 persons and 4.89%) published by the Presiding Officer at the Polling Station at around 11:45 pm was (i) published after the Two Ballot boxes used at the Polling Station were out of sight of the polling agents of the Petitioner and the 1^st Respondent for around 67 minutes; (ii) inconsistent with the observations/records of the Petitioner’s polling agent and voluntary helpers; (iii) markedly higher than the voter turnout rate of that hour across different constituencies in Hong Kong and in Eastern District”.

6.  As mentioned in §3 of the Ruling:

(1)  according to the Petitioner’s polling agent, Tsoi Ka Tseung, who was inside the Polling Station during the period from 9:30 pm to 10:30 pm, less than 250 voters voted during that period;

(2)  according to the Petitioner’s 2 voluntary helpers, one of whom was Hung Lee Lai, who were observing from the ground level of Island Place, approximately only 67 and 83 “intended voters entered the ground floor entrance leading up to the Polling Station”[1] during the period from 9:30 pm to 10:30 pm.

7.  Mr Law says that, from the video footages recorded by the 2 CCTV cameras installed in the Lifts, one can count the number of persons (voters) leaving the Lifts on the 2/F of Island Place to go to the Polling Station during the period from 9:30 pm to 10:30 pm, and such evidence would shed light on whether the Presiding Officer’s published figures were correct.

8.  There are various reasons why the number of persons seen leaving the Lifts on the 2/F of Island Place to go to the Polling Station may not necessarily equal to voters’ turnout figure published by the Presiding Officer for the last hour of the voting period on the Polling Day, including:

(1)  the Presiding Officer’s method for calculating the voters’ turnout was based on the number of ballot papers issued at the end of every hour on the Polling Day, not the actual number of persons who cast their votes during that hour;

(2)  the fact that there would inevitably be some time lapse between the time when a voter entered the Polling Station and the time when he actually cast his vote;

(3)  the possibility that some voters might have used the stairs from the ground level to gain access to the Polling Station during the period from 9:30 pm to 10:30 pm; and

(4)  the possibility that some voters might have gained access to the Polling Station by walking down the stairs from the car park levels on the 3/F or 4/F of Island Place.

9.  These having been said, it seems to me that the number of persons seen leaving the Lifts on the 2/F of Island Place to go to the Polling Station during the period from 9:30 pm to 10:30 pm would still be relevant to the determination of the number of voters who cast their votes during that hour at the Polling Station, and such evidence would go to the accuracy of the voters’ turnout figure published by the Presiding Officer, albeit that it is by no means conclusive of the issue.  The fact that the Petitioner has other evidence to challenge the accuracy of the Presiding Officer’s published figure, a fact much emphasised by Ms Chan, does not mean that the evidence of the video footages thereby becomes irrelevant.

10.  I am, however, unable to accept Mr Law’s submission that the video footages for the entire period from 7:30 am to 10:30 pm are relevant to the complaint of material irregularity as pleaded in §16.7 of the Election Petition, which concerns only the period from 9:30 pm to 10:30 pm.  It is well established that discovery should not be ordered beyond what is relevant and necessary either for disposing fairly of the cause or matter or for saving costs.  Bearing in mind the matters referred to in §8 above, I consider that ordering the Management Company to give discovery of the video footages limited to the period of time from 9:00 pm to 10:30 pm should be sufficient for the Petitioner’s purpose while ensuring that no more than what is reasonably necessary is required to be disclosed.

11.  In all, I make an order in terms of paragraphs 1, 2 and 3 of the Petitioner’s summons dated 30 June 2020, save that:

(1)  the time frame in paragraph 1 shall be changed to 9:00 pm to 10:30 pm; and

(2)  the costs of the Management Company referred to in paragraph 3 shall be paid by the Petitioner in the first instance, to be taxed on an indemnity basis if not agreed.

12.  As for the costs of the application, there shall be no order as to costs as between the Petitioner and the 1^st Respondent, and the question of costs as between the Petitioner and the 2^nd Respondent is reserved.