WONG TO SANG v. SECRETARY FOR JUSTICE (FOR AND ON BEHALF OF THE SECRETARY FOR HOME AFFAIRS)

HCMP 875/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 875 OF 2011

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BETWEEN

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JUDGMENT

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1.  The Applicant (Mr Wong) displayed 2 banners for an election in contravention of section 34 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap.554 (“the Ordinance”). He seeks an order that he be excepted from the relevant requirements and be relieved from the penalties imposed under that section.

THE BACKGROUND

2.  In 2006 Mr Wong stood for the position of Resident Representative in the Sai Kung North Rural Committee Village Representative Elections 2007.  He was not elected on that occasion.

3.  Mr Wong ran again for the Village Representative Elections 2011 and was nominated as a candidate.  On 24 November 2010, he visited the Tai Po District Home Affairs Department to attend to the nomination affairs.  He was given a bag which contained Village Representative Election information materials (“the Materials”).  It included the election rules, checklists, forms and a booklet of the Ordinance.

4.  On 6 January 2011, Mr Wong engaged a printer to create 2 banners for him.  One was to encourage votes for him; the other was an expression of thanks. 

5.  On 8 January 2011, Mr Wong hung the first banner in the external wall of his café.  This banner was in contravention of section 34(1) and (4) of the Ordinance which provide as follows:

“(1) A person must not publish a printed election advertisement that fails to show, in the English or Chinese language-

(a) the name and address of the printer; and
(b) the date on which it was printed; and
(c) the number of copies printed.

[(2) and (3) are inapplicable]

(4) A person must, not later than 7 days after publishing a printed election advertisement, furnish 2 copies of the advertisement to the appropriate returning officer.”

The particulars of the printer, the date of the printing and the number of copies printed were not stated on the banners. Neither had Mr Wong furnished copies of the banners to the returning officer before the election or within 7 days thereafter.

6.  On the polling day, i.e. 16 January 2011, Mr Wong was elected as a Resident Representative of Nai Chung Village for a term of 4 years.

7.  The 2^nd banner was hung from 1 February to 31 March 2011, only after the election was over.  I have been helpfully reminded by Mr Law for the Secretary for Justice that, for present purposes, this banner did not fall within the application.

8.  On 26 January 2011, Mr Wong attended the Tai Po District Home Affairs Department to submit the required declaration.  He was informed that the Department had not received his application for election advertising.   It transpired that Mr Wong should have made and deposited with the returning officer a declaration and 2 identical postcard-sized colour photographs of each type of election advertisement and the form for permission to display the banner on private premises.  The relevant regulations were included in a booklet as part of the Materials.

9.  Mr Wong completed the election advertising declaration and the necessary forms for the 2 banners under oath by 31 January 2011 and submitted them to the returning officer.

PROCEDURAL DEFECT

10.  This application is made by Notice of Motion.  According to Order 8, rule 1 of the Rules of the High Court, a notice of motion is used only if required or authorized under a written law.  There is no such requirement under the Ordinance or otherwise.  Accordingly, the proper mode of commencement should be by originating summons.  However, Mr Law has fairly taken no point on this procedural defect.

THE LAW

11.  Under section 35 of the Ordinance,

“(1) A person who publishes a printed election advertisement without complying with section 34(1) 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 allowing the publication which would, but for this section, constitute an offence under section 34, be excepted from the relevant requirements under that section and relieving the applicant from the penalties imposed by 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) where 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 applicant should not be subject to those penalties.”

12.  The power to grant relief under section 35 is discretionary.  The burden rests on an applicant to satisfy the Court that the relief should be granted. 

13.  A useful definition of “inadvertence” can be found in Halsbury’s Laws of England, 4^th ed Reissue, Volume 15, paragraph 728.  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 to acquaint himself with the law.”

14.  In the case of Wong Yee Him, HCMP 611 of 2000, 10 March 2000, in paragraph 11 the late Deputy Judge Z. E. Li said:

“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.”

15.  The above passages from Halsbury’s and Wong Yee Him were cited with approval by Lam J in Ex Parte Tsang Wai Ming, HCMP 3463 of 2003.  In considering a similar provision under section 40 of the Ordinance, his Lordship added :

“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.”

ANALYSES

16.  The Secretary for Justice has consulted the returning officer for the Nam Chung Village Representative Election, the Director of Home Affairs, Commissioner of ICAC and the Director of Public Prosecutions.  The returning officer confirmed that Mr Wong’s version as stated in his first affirmation was generally true and correct.

17.  Although his affirmation did not state what he did with the Materials given to him,  Mr Wong confirmed in the witness box that he had read them.  Because those Materials were quite thick with a lot of details, he might have forgotten some contents after reading.  Mr Wong’s reasons for his default were that he suffered from flu at the end of December 2010 and early January 2011 and was not in the right frame of mind or good health at that time.  Medication did little to alleviate the symptoms and made him drowsy.  He frankly admitted that regardless of his condition, he had overlooked the requirements to complete the form necessary for obtaining permission for display of election advertisements at private premises and to provide 2 colour photos of the advertisement.  He knew, however, that he had to declare the advertising expenses with one month of the election.

18.  I place no weight on the illness of Mr Wong.  That illness did not appear to be serious and medication from a pharmacy was considered sufficient by him.  In any case, he has had ample time before he fell ill to read up the Materials.

19.  I am, however, satisfied that Mr Wong had read the materials and that it was owing to inadvertence that he had overlooked the requirements under section 34.  I am also satisfied that although he had run an election before, he did not use similar banners on that occasion.

20.  There is no question as to the good faith of Mr Wong.  He clearly followed the requirement of making a declaration of his election expenses in less than one month after the election was over.  He was late in notifying the returning officer about the 1st banner by only 11 days and had tried his best to remedy the situation.  There is no notice which needs to be given under section 35(2)(a)(ii).  It would be just to give him relief in the circumstances of this case.

CONCLUSION

21.  Pursuant to section 35 of the Ordinance, I grant an order that the publication by the 1st banner be excepted from the requirements under section 34(1) and (4) and relieve Mr Wong from the penalties imposed by section 34.

22.  The Secretary for Justice does not ask for costs and I make no order accordingly.

23.  I thank Mr Law for his able assistance to the Court.