LAM KING NAM v. SECRETARY FOR JUSTICE

HCMP 656/2021

[2022] HKCFI 1511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 656 OF 2021

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J U D G M E N T

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The Originating Summons

1.  This is the application by the applicant (“Applicant”)  by way of Originating Summons filed on 11 May 2021 (the “Originating Summons”)  for relief in relation to certain of his election conduct during the Legislative Council General Election originally scheduled for 6 September 2020.

2.  Upon the joint request of the parties, I have previously given directions that the application be disposed of on the papers.  For that purpose, Mr Eddie Ng on the Applicant’s behalf has filed his written submissions and reply respectively of 28 March and 19 April 2022.  Mr Walter Kwong has for the Secretary for Justice filed his written submissions of 11 April 2022.

The Election concerned

3.  The Election which the Originating Summons relates to is the Legislative Council General Election originally scheduled to be held on September 2020. Due to the pandemic, and by the Emergency (Date of General Election)  (Seventh Term of the Legislative Council)  Regulation made by the Chief Executive in Council under section 2 of the Emergency Regulations Ordinance (Cap. 241), it was discontinued and came to an end on 1 August 2020.  I will refer to it as the “Discontinued Election”.  It is however common ground that despite the discontinuation, s.105 of the Electoral Affairs Commission (Electoral Procedure)  (Legislative Council)  Regulation (Cap. 541D)  (the “Regulation”)  remains applicable in relation to the Applicant’s election conduct concerned. 

The Originating Summons, and the relief sought

4.  By the Originating Summons, the Applicant seeks relief to be excepted from the requirements and penalties pursuant to s.35 of Elections (Corrupt and Illegal Conduct)  Ordinance (Cap. 554)  (“ECICO”)  and s.106 of the Regulation in relation to 3 types of breaches:

(a)  Breach of s.105(4)  of the Regulation and s.34(1)  of ECICO in respect of materials as set out in Schedule 1 annexed to the Originating Summon, in that the Applicant failed to show the relevant information/particulars (i.e. name and address of printer, date of printing and number of copies printed)  on the printed election advertisements (the “1^st Relief”);

(b)  Breach of requirements under s.105(1)  and (2)  of the Regulation in respect of materials as set out in Schedule 2 annexed to the Originating Summon, in that the Applicant failed to make available copy of the election advertisements including publication information, permission or consent for public inspection by any of the means stated in paragraph 8.58 of the Guidelines on Election-Related Activities in respect of the Discontinued Election (“Guidelines”)  (the “2^nd Relief”); and

(c)  Breach of requirements under s.34(4)  of ECICO in respect of materials as set out in Schedule 3 annexed to the Originating Summons, in that the Applicant failed to furnish 2 copies of the printed advertisements to the returning officer within the stipulated time (the “3^rd Relief”).

S.34 of ECICO having no application

5.  S.34 of ECICO is part of Part 5 of ECICO.  As Mr Kwong has pointed out, s.4 of the ECICO provides that Part 5 only applies to two kinds of elections in relation to Heung Yee Kuk and Rural Committee.  It has no application to the Discontinued Election.

6.  The part of the 1^st Relief in relation to any perceived breach of s.34(1)  of ECICO and the entire 3^rd Relief are misconceived, and are not necessary.

The affirmations

7.  In support of the application, the Applicant has filed:

(a)  his affirmation;

(b)  Chong Po Ying’s affirmation (“Chong”); and

(c)  Chan Shuk Kwan’s affirmation (“Chan”).

8.  None has been filed on behalf of the Secretary for Justice.

The law

9.  S.106 of the Regulation stipulates that:

“(1)  A person who publishes an election advertisement without complying with section 105(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 105, 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.”

10.  I have summarized the applicable law, principles and considerations in Man Fu Wan v Secretary for Justice[2020] 4 HKLRD 153 at §§14-17.  I will not repeat them.

The Applicant’s case for relief

11.  The Applicant first on 4 March 2020 declared that he intended to run at the Discontinued Election for the Import and Export Functional Constituency. He later changed his mind, and on 20 June 2020 announced that he intended to run for the New Territories East Geographic Constituency.  He subsequently reverted back to his original intention, and ultimately upon submission of his nomination form dated 30 July 2020 became a candidate at the Discontinued Election for the Import and Export Functional Constituency.

12.  It is the Applicant’s case that he is an entrepreneur and is the founder of brand “Abouthai”.  He at the material time managed over 26 stalls and over 100 employees.  July 2020 was the first time he ever ran in a public election. He was both busy and inexperienced.  He appointed initially Chong, and subsequently Chan as his election assistants to handle all administrative work in relation to the election campaign.  Both were the employees of Abouthai (Chong being a Senior Marketing Executive, and Chan being a Senior Corporate Communications Executive & Secretary).  They were already busy with their main jobs.  They were also inexperienced in election matters.  No other professional was engaged.  Whilst the Applicant had assigned such roles to Chong and Chan, he maintained his supervisory role in monitoring the campaign, and spent time and effort in understanding the relevant legal requirements concerned.  He downloaded the Guidelines and went through them himself.  He reminded both Chong and Chan a number of times to read them carefully.  He repeatedly reminded them in particular to keep proper records and receipts of all election advertisements published.  Both Chong and Chan confirmed with him that they did try to familiarize themselves with the Guidelines and the relevant legal requirements.  They kept good records of all the election advertisements.  They subsequently became aware that they had misunderstood the time when they need to comply with the relevant law and Guidelines in relation to election advertisements.  They took remedial actions.  The non-compliances were the results of inexperience and inadvertence.  No bad faith was involved.  They have committed no other breaches, and have been able to make the other necessary declarations and disclosure. 

The Secretary for Justice’s stance

13.  As I have observed above, Mr Kwong has pointed out that s.34 of ECICO has no application to the Discontinued Election, and that the part of the 1^st Relief in relation to any perceived breach of s.34(1)  of ECICO and the entire 3^rd Relief are not necessary.

14.  In relation to the balance of the application, Mr Kwong on behalf of the Secretary for Justice adopts a neutral stance.  They do not seek to challenge the evidence filed by the Applicant.  He however points out that the burden is on the Applicant to prove the pre-conditions for grant of relief.  He also makes the observation that there is no specific evidence from the Applicant or his witnesses indicating that he has checked the relevant Returns before submission.

15.  I note Mr Kwong’s helpful submissions.  I however agree with Mr Ng that the present application does concern any error in any Return.

Discussions

16.  On the evidence before me, I am satisfied that there was no bad faith involved.  Apart from the non-compliances concerned, the Applicant has complied with all other legal requirements and has filed all the forms required.  In particular, the Applicant was able to lodge with the necessary details on 29 September 2020 both the Return and Declaration of Election Expenses and Election Donations by a Functional Constituency and the Return and Declaration of Election Expenses and Election Donations by a Geographical Constituency. Full disclosure of the election advertisements published were made therein. The Applicant was also able to, through Chan, lodge on 19 August 2020 the Information Sheet in relation to Election Advertisements.  And upon discovery of the non-compliances, Chan on 17 August 2020 under the Oaths and Declarations Ordinance (Cap. 11), and with the Applicant’s authorization, made declarations with particulars confirming that the non-compliances were the result of inadvertence.

17.  I reiterate that ignorance of the law is no defence.  But in the present case, and on the evidence before me, I am satisfied that the Applicant and his election agents did make genuine efforts to familiarize themselves with and to comply with the requirements under the law and the Guidelines.  They however mistook their effects on the time when then need to comply with the requirements under s.105 of the Regulation. They were also inexperienced, and were occupied with other work duties.  

18.  I reiterate further that compliance with election rules is important, and that the solemnity and integrity of the election system and regime depends on it.  With those reiterated, I am satisfied on the evidence before me that the non-compliances were the result of inadvertence and negligence, with prompt remedial actions having been taken.  Albeit marginal, I am of the view that the evidence suggests some reasonable excuse for the non-compliances, and it is not unjust for the conduct concerned to be excepted.

Disposition

19.  For the above reasons:

(a)  I grant the part of the 1^st Relief in relation to the Regulation, that:

“The publication by the materials as set out in Schedule 1 annexed to the Originating Summons be excepted from the requirements under section 105(4)  of Electoral Affairs Commission (Electoral Procedure)  (Legislative Council)  Regulation, Cap. 541D (the ‘Regulation’)  and the Applicant be relieved from the penalties imposed by section 105(9)  of the Regulation.”

(b)  I grant the 2^nd Relief, that:

“The publication by the materials as set out in Schedule 2 annexed to the Originating Summons be excepted from the requirements under sections 105(1)  and 105(2)  of the Regulation and the Applicant be relieved from the penalties imposed by section 105(9)  of the Regulation.”

(c)  I refuse the 3^rd Relief, as being unnecessary.

Costs

20.  The Secretary for Justice seeks costs, which the Applicant does not resist.  I summarily assess the amount at HK$25,318 as per the Statement of Costs attached to Mr Kwong’s written submissions, to be paid by the Applicant to the Respondent within 28 days from the date hereof.