LO TAK MING v. SECRETARY FOR JUSTICE

HCMP 662/2020

[2021] HKCFI 709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 662 OF 2020

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DECISION

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INTRODUCTION

1.  By the Amended Originating Summons dated 8 September 2020, the Applicant seeks:

(1)  relief from any penalties and/or disqualifications that are imposed or could be imposed from ss 37 and/or 38 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“the Ordinance”) for his failure to disclose donations received by way of “crowdfunding”; and

(2)  leave to correct the omissions in the Return and Declaration of Election Expenses and Donations (“the Return and Declaration”) lodged by him on 23 December 2019 pursuant to s 37(1) of the Ordinance.

2.  The omissions relate to donations in the total amount of HK$52,543 which the Applicant received through what has been referred to as “crowdfunding” (眾籌小額捐贈) which the Applicant accepts should have been, but was not, disclosed in Section H of the Return and Declaration.

BASIC FACTS

3.  The Applicant was a candidate for the Shui Chuen O Constituency of the Sha Tin District Council in the 2019 District Council Ordinary Election, which took place on 24 November 2019.  That was the first time that the Applicant ran as a candidate in a District Council Election.  He had previously worked for an incumbent District Councillor in the Sha Tin District Council, namely, Mr Yau Man Chun (“Mr Yau”), whom the Applicant treated as his mentor, during the period from December 2015 to November 2019.  The Applicant also says that Mr Yau has a lot of experience in running in District Council elections.  Because of his relationship with, and the experience, of Mr Yau, the Applicant frequently consulted Mr Yau in relation to the 2019 election, and looked to him for advice and guidance in relation to election matters.

4.  Due to his limited financial means, the Applicant decided to employ “crowdfunding” to fund his election campaign.  He was advised by Mr Yau that “crowdfunding” was an acceptable means to raise funds for an election, and that so long as an individual donation did not exceed HK$1,000, it was not necessary for the donation to be declared in the election return required to be lodged by a candidate after the election pursuant to s 37(1) of the Ordinance.

5.  The Applicant says that he accepted and acted upon Mr Yau’s advice, and thus in his Facebook advertisements seeking donations by way of “crowdfunding”, he specifically requested the prospective donors to donate up to the limit HK$999.  It can also be seen from the Facebook advertisements that the Applicant’s aim was to raise HK$60,000 by way of “crowdfunding”.  Apparently, he successfully raised HK$52,543 by this means. However, acting upon the advice of Mr Yau, he did not disclose the amount of HK$52,543 in Section H of the Return and Declaration which he lodged with the Chief Electoral Officer on 23 December 2019 pursuant to s 37(1F) of the Ordinance.  His omission gives rise to the present application.

DISCUSSION

6.  It is not in dispute that the amount of HK$52,543 which the Applicant raised by way of “crowdfunding” ought to have been disclosed as part of the “Election Donations” in Section H of the Return and Declaration.

7.  Under s 40 of the Ordinance:

“(3) A candidate can also apply to the Court for an order enabling the candidate to correct any error or false statement in an election return or in any document accompanying the return.

(4) On the hearing of an application made under subsection (3), the Court may 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.”

8.  On the facts of the present case, I am satisfied that the Applicant’s omission to disclose the amount of HK$52,543 in Section H of the Return and Declaration was due to a “reasonable cause”, in that he acted upon the advice of an incumbent District Councillor whom he reasonably believed had relevant knowledge and experience on what matters were required to be disclosed in an election return.  I am also satisfied that the omission was not due to the Applicant’s bad faith.

9.  In the Skeleton Submissions for the Secretary for Justice, it is mentioned that there are a few other mistakes or irregularities in the Return and Declaration which ought to be corrected or rectified.  The Applicant does not accept the alleged mistakes or irregularities, and submits that no further amendment to the Return and Declaration is required.  I do not propose to deal with those matters in this decision.  It is a matter for the Applicant to decide whether to seek leave to make any other corrections to the Return and Declaration.  If he takes a wrong view of the matter (even upon legal advice), he will have to bear the consequences.  The court only deals with the application as it is currently before it.  It is no part of the court’s functions to give legal advice to any party.

DISPOSITION

10.  I grant an order under s 40(3) of the Ordinance enabling the Applicant to correct the Return and Declaration in the manner as indicated in the schedule to the Amended Originating Summons.

11.  The consequences of an order made under s 40(3) of the Ordinance are matters of law (including s 38(3) of the Ordinance).  The Applicant has not addressed the court on the basis on which relief in terms of paragraph 1 of the Amended Originating Summons may be granted.  I do not therefore propose to grant such relief, but I shall give the Applicant liberty to apply if he wishes to pursue the specific relief sought.

12.  On the question of costs, the Secretary for Justice is a proper and necessary party to be joined.  She has maintained a neutral stance in the application, and has provided useful assistance to the court.  Also, she previously pointed out some errors in the papers lodged by the Applicant, which the Applicant accepted and corrected by means of the Amended Originating Summons and his 2^nd Affirmation.  I consider that the Secretary for Justice ought to be entitled to the costs of the application, which are summarily assessed at HK$20,000.