RE KONG CHAN NAM

HCMP 567/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 567 OF 2015

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DECISION
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INTRODUCTION

1.  I have before me an application made by way of an ex parte originating summons dated 11 March 2015 seeking the following relief:-

(1) an order that the publication of an election advertisement (“the 26 December Leaflet”, a copy of which appears as Annex 1 to the originating summons) on 26 December 2014 be excepted from the relevant requirements under section 92(2) and (3) of the Electoral Procedure (Rural Representative Election) Regulation, Cap 541L (“the Regulation”);

(2) an order that the publication of an election advertisement (“the 14 December Leaflet”, a copy of which appears as part of Exhibit “KCN-3” to the 2^nd affirmation of the applicant filed on 14 May 2015) on 14 December 2014, and the relevant consent forms signed by Mr Chow Wo and Mr Wong Man Hon in respect of the 14 December Leaflet (“the Consent Forms”, copies of which appear as Annex 2 to the originating summons), be excepted from the relevant requirements under section 92(2) and (3) of the Regulation and/or section 27 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“the Ordinance”);

(3) an order that the publication of an election advertisement (“the Banner”, a copy of which appears as part of Exhibit “KCN-3” to the 2^nd affirmation of the applicant filed on 14 May 2015) on 14 and 15 December 2014, and the relevant permission forms signed by Mr To King Tin and Ms Yuen Yuet Wah (“the Permission Forms”, copies of which appear as Annex 3 to the originating summons), be excepted from the relevant requirements under section 92(2) and (3) of the Regulation.

2.  Notice of the application has been given to the Secretary for Justice.  By a letter dated 8 May 2015 from the Department of Justice to Messrs Leung, Tam & Wong (the applicant’s solicitors), the Secretary for Justice informed the applicant that he has no objection to the present application.

BACKGROUND FACTS

3.  This application arose out of the election (“the Election”) of rural representative for Pak Ngan Heung, Mui Wo, Lantau Island (“the Village”), which was held on 4 January 2015.  The applicant stated that he had been a resident for some 43 years, and an active member, of the Village, but had no previous experience in any election.  He said that in early November 2014, he was approached by other residents of the Village to stand as candidate for the forthcoming election of rural representative for the Village, and he decided to participate in the Election on 18 November 2014.  The applicant engaged his wife, who similarly had no previous experience in election matters, to act as his election agent.

4.  The applicant stated that he was given a lot of materials from the Home Affairs Department in relation to the Election. He was given to understand that he had to submit an election return to the Returning Officer within 30 days after the publication of the result of the Election, and mistakenly thought that this requirement also applied to election advertisements and other permission and consent forms.  The applicant now accepts that the time for submitting election advertisements and permission and consent forms is within 1 day after their publication as required by Chapter 4 of the Guidelines on Election-related Activities in respect of the Rural Representative Election (“the Guidelines”).

5.  In conjunction with the Election, the applicant published:-

(1) the 14 December Leaflet;

(2) the Banner; and

(3) the 26 December Leaflet.

6.  The 14 December Leaflet contained the names of two residents of the Village, namely, Mr Chow Wo and Mr Wong Man Hon.  They gave their consent in writing for the inclusion of their names in the 14 December Leaflet on 10 and 13 December 2014 respectively.

7.  The Banner was displayed at certain private premises, and the relevant permission for the display of the Banner at those premises were given in writing by Ms Yuen Yuet Wah and Mr To King Tin on 14 and 15 December 2014 respectively.

8.  Although the applicant did submit copies of the 14 December Leaflet and the Banner to the Returning Officer on 10 December 2014, the applicant failed to make available electronic copies of the same for public inspection in accordance with the requirements set out in section 92(2) of the Regulation, or submit the Consent Forms and Permission Forms to the Returning Officer in accordance with the requirements set out in section 92(3) of the Regulation and paragraph 4.42 of the Guidelines.  As a matter of fact, the Consent Forms and Permission Forms were submitted to the Returning Officer only on 15 January 2015.

9.  In so far as the 26 December Leaflet is concerned, the applicant similarly failed to submit the same to the Returning Officer until 15 January 2015.  Also, the applicant failed to make available an electronic copy of the 26 December Leaflet for public inspection in accordance with the requirements set out in section 92(2) of the Regulation.

10.  The applicant explains that the failure to comply with the relevant requirements imposed by section 92(2) and (3) of the Regulation and the Guidelines was due to a misunderstanding of the relevant requirements on the part of himself and his wife.

11.  The applicant points out that all necessary consent and permission were obtained prior to the publication of the 14 December Leaflet and the Banner, and all expenses and details of the 14 and 26 December Leaflets and Banner were properly set out in the election return submitted on 15 January 2015.  He further submits that his failure to comply with the aforesaid requirements was due to inadvertence and not due to bad faith.

Discussion

12.  Section 92(1)(a) of the Regulation states as follows:-

“ A candidate who publishes an election advertisement must comply with subsection (2) or (3) in relation to –

(a) the advertisement and any information related to the advertisement required by the Commission”.

13.  Section 92(2)(a) and (b) of the Regulation states as follows:-

“ A candidate must –

(a) make an electronic copy of the advertisement, information, permission or consent available for inspection on an open platform maintained by the Director or a person authorized by the Director (Central Platform) in the manner and within the time specified by the Commission;

(b) make an electronic copy of the advertisement, information, permission or consent available for inspection on an open platform maintained by the candidate or a person authorized by the candidate (Candidate’s Platform) in the manner and within the time specified by the Commission until the end of the period for which copies of election returns are available for inspection under section 41 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) and provide information about the Candidate’s Platform required by the Commission in the manner and within the time specified by the Commission”.

14.  Section 92(3) of the Regulation goes on to state as follows:-

“ A candidate must provide, in the manner and within the time specified by the Commission, to the Returning Officer –

(a) the information and 2 copies of the advertisement in paper form or any other form specified by the Commission; and

(b) a hard copy of the permission or consent.”

15.  Finally, section 93(1) and (2) of the Regulation provides as follows:-

“ (1) A person who publishes an election advertisement without complying with section 92(1)(a) or (4) may apply to the Court for an order under subsection (2).

(2) On the hearing of an application made under subsection (1), the Court may make an order excepting the act which would, but for the order, constitute an offence under subsection (9) of section 92, from the relevant requirement under that section, but only if the Court –

(a) is satisfied that –

(i) the non-compliance was due to inadvertence, an accidental miscalculation or any reasonable cause and was not due to bad faith; and

(ii) if the Court requires notice of the application to be given in Hong Kong, the notice has been given; and

(b) believes it to be just that the act be so excepted.”

16.  The requirements imposed by the Electoral Affairs Commission relevant for the present purposes are set out in paragraph 4.42(d) of the Guidelines, which provides as follows:-

“ A candidate must make available a copy of each of his election advertisements, and the relevant information/documents (see Appendix C) including publication information, permission or consent in relation to the election advertisements for public inspection within 1 working day (ie any day other than a general holiday or Saturday) after publication of the election advertisements by the following means:

(d) providing 2 hard copies each of the election advertisements (or 2 identical postcard sized colour photographs of each election advertisement which cannot be practically or conveniently photocopied) and 1 hardcopy each of the relevant information/documents to the [Returning Officer]”.

17.  In the present case, the non-compliance with the aforesaid requirements imposed by section 92(2) and (3) the Regulation and paragraph 4.42(d) of the Guidelines relates to (i) the 26 December Leaflet, (ii) the Consent Forms in respect of the 14 December Leaflet, and (iii) the Permission Forms in respect of the Banner.  On the other hand, as earlier noted, copies of the 14 December Leaflet and the Banner were duly submitted to the Returning Officer on 10 December 2014.

18.  The principles applicable to an application under section 93 of the Regulation are well established.  For this purpose, “inadvertence” means “negligence or carelessness where the circumstances show an absence of bad faith”: see Re Brook Bernacchi [1957] HKLR 185, at 186 per Gould J; Re Liu Sing Lee [2003] 3 HKLRD 162, at §26 per Chu J (as she then was).  Also, there must generally be some reasonable excuse for the inadvertence before the court would grant relief: see Re Brook Bernacchi, supra, at 186; Re Sai Kung Constituency Regional Council Election, ex p Leung Kam Ho Gilbert [1994] 3 HKC 544, at 550; and Re Country Councils’ Elections, Layton and Woodbridge’s Case (1889) 5 TLR 198.

19.  I am satisfied on the evidence that the non-compliance with the aforesaid requirements imposed by section 92(2) and (3) of the Regulation and paragraph 4.42(d) of the Guidelines in respect of (i) the 26 December Leaflet, (ii) the Consent Forms, and (iii) the Permission Forms, was due to inadvertence and not due to bad faith on the part of the applicant, and believe it to be just that they be excepted from those requirements.

20.  I am therefore prepared to make an order excepting the requirements under section 92 of Regulation as it applies to (i) the 26 December Leaflet, (ii) the Consent Forms, and (iii) the Permission Forms.

21.  In passing, I should mention that it is not clear, on the face of the 14 December Leaflet, whether the mere mentioning of the names of Mr Chow Wo and Mr Wong Man Hon in that document indicated their support of the applicant in relation to the Election, and it is open to argument as to whether (i) their consent to the mentioning of their names in the 14 December Leaflet was required to be obtained, and (ii) the Consent Forms were required to be submitted to the Returning Officer.  However, out of an abundance of caution, I am prepared to make an appropriate order to cover the Consent Forms as well.

22.  In so far as section 27 of the Ordinance is concerned, it does not appear to have application on the facts of the present case, there being no allegation or suggestion that the applicant had not obtained the written consent of Mr Chow Wo and Mr Wong Man Hon for the mentioning of their names in the 14 December Leaflet prior to the publication of the same.  The Department of Justice has also confirmed in a letter dated 8 May 2015 to Messrs Leung, Tam & Wong that the Secretary for Justice does not insist on an application under section 31 of the Ordinance.  In these circumstances, I am not prepared to make an order under that section of the Ordinance.

DISPOSITION

23.  In all, I make an order as indicated in paragraph 20 above, with no order as to costs.

24.  Before I leave this matter, I wish to say something about the procedure adopted in making the present application.  As earlier mentioned, this application was commenced by way of an ex parte originating summons.  Order 7 rule 2(1) of the Rules of the High Court provides (inter alia) that every ex parte originating summons shall be in Form No 11 in Appendix A, and rule (1C) goes on to provide that Form No 11 is to be used “if there is no party on whom the summons is to be served”.

25.  In relation to applications under the Electoral Affairs Commission Ordinance or its regulations or the Ordinance to, effectively, cure irregularities in the conduct of elections, I understand that there has not been any uniform practice by practitioners on whether to make such applications on an ex parte or inter partes basis.  In Re Fan Gary Kwok Wai and 8 Others, HCMP 1980/2013 (20 January 2014) which concerned applications under section 106 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, and sections 31(2) and 40(4) of the Ordinance, Au Yeung J noted at paragraph 53 of her judgment that the applications before her were made on an ex parte basis with notice to the Department of Justice.  In my view, the Secretary for Justice has an obvious interest in applications of this nature, and would likely be able to provide valuable assistance to the court.  I venture to suggest that in future, such applications ought to be made on an inter partes basis with the Secretary for Justice being joined as respondent to the applications.

26.  In the present case, as noted above, notice of the application has been given to the Secretary for Justice who has indicated that he has no objection to the relief sought by the applicant.  I am content to proceed on the basis of the ex parte originating summons currently before me, but I will not be prepared to do so in future in the absence of some convincing justification for proceeding in such manner.