RE TSANG WAI MING

HCMP 3463/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3463 OF 2003

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J U D G M E N T

1.  This is an application by Mr Tsang Wai-ming pursuant to section 40 of the Elections (Corrupt and Illegal Conduct) Ordinance seeking extension of time to file an election return.

2.  Mr Tsang was a candidate in the election of the village representative of the Yuen Tun Village.  He submitted a nomination form on 13 June 2003 and was nominated as a candidate.  Thereafter, as far as the election for that particular village representative is concerned, he was the only candidate.  Therefore, on 30 June 2003, he was declared to be elected.   Mr Tsang did not incur any election expenses, nor did he receive any election donation.

3.  Under the law, he has to file an election return within 30 days and that time limit expired on 30 July 2003.  Mr Tsang did not file such a return.  He is now asking the court to grant an extension of time for him to do so.  According to Mr Tsang, he learnt about the need to file an election return, despite the fact that he has not incurred any election expenses, when he read a letter from  the Returning Officer dated 22 July 2003.  The reason why he read this letter only on 30 July was that Mr Tsang was out of Hong  Kong between 27th to 30 July 2003. 

4.  Mr Tsang tried to remedy the situation on 31 July 2003.  He immediately went to the Tsuen Wan District Office to see the Returning Officer and he was advised he had to seek leave from this court for extension of time to file the return out of time.

5.  Mr Tsang diligently led and prosecuted this application and there is no question of his good faith in the whole process. 

6.  At today’s hearing, Mr Tavares, acting for the Returning Officer,  the Director of Home Affairs and the Director of Public Prosecutions as well as the Commissioner of the Independent Commission Against Corruption, adopted a neutral position.  Mr Tavares also confirmed to this court that as far as his clients are concerned, there is no question of bad faith on the part of the applicant.  However, as clearly laid down in the cases, the burden rests entirely on the applicant to satisfy this court that the relief should be granted.

7.  Under section 40(2) of the Elections (Corruption and Illegal Conduct) Ordinance, the court may grant relief only if it is satisfied that the inability or failure to lodge an election return as required by section 37 was attributable to one of the following reasons and also not due to the applicant’s bad faith.  The reasons provided for under subsection 2 are (a) the applicant’s illness or absence from Hong Kong; (b) the death, illness, absence from Hong Kong or misconduct of an agent or employee of the applicant; (c) inadvertence or an accidental miscalculation by the applicant or other person; and (d) any reasonable cause.  As I said, there is no question as to the good faith on the part of Mr Tsang in the matter.

8.    Although the affirmation of Mr Tsang did not clearly set out what efforts he had made with regard to familiarising himself about his legal obligations as to the filing of an election return, he elaborated on that by giving evidence before this court during the hearing.  Having heard his evidence and considered what he said under cross-examination, I find Mr Tsang to be an honest witness and I accept his evidence. 

9.  In a nutshell, his evidence is that he had been given a set of  election guidelines by the Returning Officer and he had read it.  However, he did not read it in detail.  I think it is fair to say he only read it casually and generally.  There were provisions in the guidelines which says that even in a case of a candidate who has incurred no election expenses, such candidate still has to file an election return.  However, Mr Tsang was under the impression that one must have a receipt before one could file any election return.

10.  If one were to read the guidelines very carefully, one would know that that was a misconception.  This is because in Appendix A, section B, paragraph 11, it is set out that candidates are required to submit a return even if no election expenses have been incurred, and this was repeated in Appendix H.

11.  However, Mr Tsang, due to his background and also the manner in which he read the guidelines, apparently failed to get the clear message that even if he has no receipt he still has to file the election return.  It is against this background that I have to consider whether relief should be granted.

12.  Although Mr Tsang relied on section 40(2)(a) and the fact that he was absent from Hong Kong between 27 and 30 July 2003, I do not think the case comes within that limb of the section.  The absence from Hong Kong only has impact in so far as the letter of 22 July is concerned. 

13.  In my judgment, it is the duty of a candidate, even without any reminder from the Returning Officer, to file the election return, although it could be said that if Mr Tsang was reminded earlier, he might have complied with the request from the Returning Officer within time.  In my view, the cause of Mr Tsang’s failure in the present case is his misunderstanding as to the effect of the law and his failure to fully appreciate what are set out in the guidelines.       

14.    As I do not think section 40(2)(a) is applicable, subsection (b) is not a ground relied on in the present case, so I turn to the question of inadvertence.   In this context, one has to bear in mind that ignorance of  the law is no defence, and I think Mr Pun accepted this as well.  However, there are situations where misunderstanding as to the effect of the law may amount to inadvertence.

15.  In this connection, I found the passage in Halsbury’s Laws of England , 4th Edn Reissue, Volume 15, paragraph 728, to be of some assistance.  It reads as follows:

“’Inadvertence’ means negligence or carelessness where the circumstances show an absence of bad faith.  Inadvertence may proceed from the applicant not knowing what was done or not knowing that it was wrong. 

Ignorance of law may, in certain circumstances, amount to inadvertence.  If a non-qualified person consults a legally qualified person and receives bad advice, he is not to be penalised on that account, but if he acts on the advice of non-qualified persons in the hope that his action is legal and it is not, he is liable to be refused relief for taking the risk.  Similarly, relief will be granted if a person is misled by a textbook on election law.  If any person, whether legally qualified or not, reads the text of a statute or regulation and fails to understand an obscure or difficult point, he may be relieved, but not if the matter is set out clearly.  In such cases relief will be more readily granted where the legislation is new and not yet generally known.  On the other hand, relief granted to a candidate or other person on the ground of ignorance might be refused to an election agent on the ground that it was his duty his acquaint himself with the law.”       

16.  I think to similar effect is what was said by the late

Deputy Judge Z E Li in the case of Wong Yee Him, HCMP 611 of 2000, 10 March 2000, in paragraph 11 where his Lordship summarised the principle as follows:

“The general principle that ignorance of law is no excuse is still true for these cases.  It is only when the party concerned has taken reasonable steps to familiarise with the law but overlooked or misconstrued some intricate provisions that exception may be considered.” 

17.  It is also necessary to draw a distinction between cases where an applicant simply turned a blind eye or acting recklessly as to the legal requirement and a case where an applicant has tried to understand what the legal requirement is but failed to get it correctly.         Ex parte Leung Kam Ho  Gilbert [1994] 3 HKC 544 is a case where the court refused relief where the election agent simply took no steps whatsoever to try to familiarise himself with the legal requirement.  Hence, the court will not grant relief to an applicant if he chose to do nothing to learn about what were his legal obligations under the law with regard to the steps that he has to take in relation to election.

18.  Applying these principles to the present case, I am of the view that Mr Tsang’s case does fall within the situation of inadvertence.  I must say that I do not think there should be any distinction with regard to the obligation of an election agent and a candidate who chooses not to appoint any election agent.  I think the duty must be the same in terms of getting oneself familiarised with the legal requirement. 

19.  However, Mr Tsang has explained that he has read the election guidelines and this obligation about filing an election return even in the case of no expenditure is not set out in a very clear directive.  Although if one were to read the guidelines carefully, and going through it word by word, there could not be any mistake, there are other sections in the guidelines which suggest that the election return has to be filed together with receipts and accounts and that may create a misleading effect on those who read the guidelines without the benefit of the training as a lawyer or those who did not read the guidelines with as much care as one might desire.

20.  In fact, if one were to look at the Ordinance itself, this requirement of filing a return in the case of nil expenses is not that clear because section 37, which is the section which requires a candidate to lodge an election return, did not explicitly refer to the position of a candidate who has not incurred any election expenses.

21.  Mr Pun also urged this court to take into account the fact that as far as this election for village representative is concerned, this is the first time that this Ordinance was made applicable to this sort of elections and also the fact that Mr Tsang did not receive education beyond Form 3 level.   I also took these into account when I decide that the case does fall within the limb of inadvertence.

22.  Therefore, I will grant relief pursuant to section 40(2) and I will hear counsel as to the terms of the relief that I should grant.

(Submissions by counsel)

23.  Pursuant to section 40(1) of the Ordinance, I order that the time for the applicant to lodge the election return be extended to 31 July 2003.

(Submission re costs)

24.  There will be no order as to costs.