LEE CHEUK YAN v. SECRETARY FOR JUSTICE

HCMP 856/2020

[2020] HKCFI 1938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 856 OF 2020

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J U D G M E N T

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1.  Section 37(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) requires each candidate at an election, within a specified period after the election, to lodge a return setting out his election expenses and donations. Section 37(2)(b) requires the return to be accompanied by certain specified documents such as receipts. Under section 38 a failure to lodge an election return as required by section 37 is an offence.

2.  Where a candidate has failed to comply with the requirements of section 37, he may apply to the court under section 40 for relief in certain circumstances. 

3.  This is such an application.  The applicant was a candidate for the 2018 Legislative Council Kowloon West Geographical Constituency By‑election, held on 25 November 2018.  The applicant lodged his election return with the Registration and Electoral Office on 29 January 2019.  In February 2019, the applicant discovered certain errors in his return.  In October 2019, the Independent Commission Against Corruption identified further errors to the applicant.  Upon further checking and taking legal advice, the applicant has prepared a corrective election return.

4.  The applicant therefore seeks an order from the court under section 40(3) to enable him to correct the errors in the election return, by lodging a corrective return within 14 days.  Section 40(4) provides that the Court may make the order sought

“ 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.”

5.  The evidence shows that the errors do not involve substantial amounts of money or any egregious conduct.  Some were due to miscalculations or double counting of certain expenditure and some due to omission of sums where the documents had actually been included with the return.  There were hundreds of items of expenses and donations.  The return was also audited by an accounting firm.  Based on the affidavit evidence of the applicant and his assistant, Mr Kwok Wing Kin, who was responsible for preparing the return, which seems to me credible, I am satisfied that the mistakes were attributable to inadvertence[1] or accidental miscalculation by the applicant or Kwok Wing Kin, as the case may be, and not due to the applicant’s bad faith.  The Secretary for Justice has taken a neutral stance.

6.  Further, section 37(2)(b)(i) requires a return to be accompanied, in the case of each election expense of $500 or more, by an invoice and a receipt with particulars of the expenditure.  In relation to certain items in the return, the applicant has been unable to locate the receipts.  For one of them, expense for local SMS, the evidence was that the applicant’s assistant inadvertently failed to ask for a receipt, but a receipt has now been retrospectively obtained.  For two items of the petrol expense, documentary record of payment has now been found in the form of the monthly statements issued by the petrol company.  For a mobile phone account top‑up expense, the best record the applicant could find was an acknowledgment of payment which was however lacking in particulars, but this item was an expense of $200 only.

7.  Accordingly, the applicant seeks an order in respect of these items under section 40(5) which provides:

“ A candidate who has not complied with section 37(2)(b)(i), (ii) or (iii) can also apply to the Court for an order excepting the candidate from the requirement to send an invoice or a receipt, or a copy of a receipt, as required by that section.”

8.  Section 40(6) again provides that the court may make an order only if certain conditions, which are in substance the same as those in section 40(4) set out in §4 above, are met.  On the evidence I accept that the original non‑compliance with section 37(2)(b)(i) was due to inadvertence and not due to the applicant’s bad faith, and am prepared to grant relief also under section 40(5).

9.  For these reasons there will the following orders:

(1) The applicant be allowed to correct errors in his election return lodged on 29 January 2019 for the 2018 Legislative Council Kowloon West Geographical Constituency By‑election (“Election Return”) by filing a corrective election return within 14 days hereof.

(2) The applicant be excepted from the requirement to send receipts or invoices in respect of the following items in the Election Return, namely: (a) item 1 at page 11(1) of the Election Return; (b) items E21 and E22 referred to at page 13 of the Election Return; and, insofar as necessary, (c) Section E1, Others, item 1 at page 12 of the Election Return.

10.  The Secretary for Justice has asked for costs and the applicant agrees to pay them.  There will therefore be an order that the applicant do pay the respondent’s costs, to be assessed summarily on a party and party basis.