WONG KIN MAN v. CHAN KOK WAH BEN and Another

1994 No. MP 2913

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On 18th September 1994, an election was held for the office of member of the Kwun Tong District Board for the constituency of Lower Ngau Tau Kok. There were 2 candidates : the Petitioner, Wong Kin Man, and the 1st Respondent, Ben Chan Kok Wah. After the votes which had been cast had been counted, Mr. Chan was found to have had 1,310 votes cast in his favour, while Mr. Wong was found to have had only 1,309 votes cast in his favour. Accordingly, the Returning Officer for the constituency, who is the 2nd Respondent to these proceedings, declared Mr. Chan duly elected.

2. However, one of the persons named in the Register of Electors entitled to vote in the election was Ng Tim Sang. He had attended the polling station on the day of the election in order to vote. Despite presenting his identity card, he was erroneously told that his name did not appear on the Register of Electors. Accordingly, he was not permitted to cast his vote.

3. After the election, Mr. Ng lodged a complaint with the Boundary and Election Commission. The Commission's Complaints Committee conducted an investigation. It found that Mr. Ng had indeed been denied his right to vote in the election. Accordingly, it upheld his complaint, and Mr. Wong now questions Mr. Chan's election by an election petition filed on 18th October 1994.

4. I have taken these facts from the affirmations which have been made by Mr. Wong and Mr. Ng, having given leave, pursuant to Ord. 38 r. 2(3) of the Rules of the Supreme Court, for their evidence to be given by affirmation. I have no reason to doubt that evidence, and I find the facts to be as I have already set them out.

5. However, there is one other significant piece of evidence. Mr. Ng claims that had he been permitted to cast his vote, he would have voted for Mr. Wong. I have heard Mr. Ng's oral evidence on that issue, and I accept his evidence on it. He decided to vote for Mr. Wong because of the party to which Mr. Wong was affiliated. The intention of Mr. Ng to vote for Mr. Wong explains the Returning Officer's concession some months ago that the failure to permit Mr. Ng to vote in the election amounted to a "material irregularity relating to that election" within the meaning of section 30(1)(a)(iii) of the Electoral Provisions Ordinance (Cap. 367) ("the Ordinance"). The irregularity in failing to accord to Mr. Ng his right to vote in the election was a material one, because it prevented Mr. Wong having the same number of votes cast in his favour as the number of votes cast in favour of Mr. Chan.

6. Section 37(1)(b) of the Ordinance provides :

"At the conclusion of the trial of an election petition the Court shall ... in the case of an election which was contested, determine whether the person whose election is questioned was duly elected and, if not duly elected, determine whether some other person was duly elected in his place."

There can be no doubt, in the light of these facts, that Mr. Chan was not duly elected. An elector whose vote would have prevented Mr. Chan from being duly elected was denied the right to vote in the election. There can equally be no doubt, in the light of these facts, that Mr. Wong was not duly elected in Mr. Chan's place. Even if Mr. Ng had been permitted to vote for Mr. Wong in the election, the number of votes cast for Mr. Wong would not have been greater than the number of votes cast for Mr. Chan. The consequence of these determinations is that, pursuant to section 42(1) of the Ordinance, Mr. Chan ceases to hold office as a member of the Kwun Tong District Board.

7. The next question is what happens now. At first blush, reg. 50 of the Electoral Provisions (Procedure) Regulations provides the answer :

"Procedure on equality of votes. Where, after the counting of the votes (including any re-count) is completed, an equality of votes is found to exist between any candidates and the addition of a vote would entitle any of those candidates to be declared elected, the returning officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote."

However, the problem that has resulted in this election cannot be resolved by the drawing of lots. That is because the conditions necessary for the drawing of lots have not been satisfied. An equality of votes was not found to exist between Mr. Wong and Mr. Chan. An equality of votes would only have been found to exist if Mr. Ng had been permitted to vote in the election. On the face of it, therefore, it looks as if a by-election cannot be avoided. That is because section 14(1) of the District Boards Ordinance (Cap. 366) provides that when an elected member of a District Board ceases to hold office by reason of section 42(1) of the Electoral Provisions Ordinance, "his office as such member shall become vacant." Moreover, the effect of reg. 4(2) of the Boundary and Election Commission (Electoral Procedure) (Geographical Constituencies) Regulations is that a vacancy in the office of a member of a District Board can only be filled by a by-election.

8. However, what should happen now is not for me to decide. That is because my powers on an election petition are limited to those conferred on me by section 37(1)(b) of the Ordinance. By section 37(3)(a), I can, if I see fit, make a report on any matter arising in the course of the trial of an election petition to the Governor and to the Boundary and Election Commission. But apart from directing that a copy of this judgment be sent to the Commission in lieu of any report, I can do no more than certify my determination that the 1st Respondent was not duly elected to the office of member of the Kwun Tong District Board for the constituency of Lower Ngau Tau Kok, and my determination that no other person was duly elected in his place.

9. I shall hear the parties on the costs of the petition. My inclination at present is not to make an order for costs adverse to Mr. Chan. Like Mr. Wong, he is the innocent victim of an error made by the officer on duty at the polling station. My present inclination is to order the Returning Officer, who is nominally responsible for the officers on duty at the polling station, to pay the Petitioner's costs of the petition, to be taxed if not agreed.