LEE CHUN HUNG v. SIN KIN MAN, FRANCESCA ELECTORAL OFFICER (COMMITTEE & RESEARCH) AND ANOTHER

HCAL 56/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 56 OF 2010

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JUDGMENT

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Facts

1.  The petitioner Mr. Lee Chun-hung was one of the 5 candidates of the Hong Kong Island Geographical Constituency in the 2010 Legislative Council By–Election. He was candidate no. 5.  The Legislative Council by-election was held on 16 May 2010.  According to the Notice of Result of Election, the number of votes given to candidates no. 1- no. 5 were respectively 3,144, 2,715, 103,564, 799 and 1,542 (the petitioner).

2.  Accordingly, candidate No. 3 Tanya Chan, with 103,564 votes, was elected by an overwhelming margin.

3.  The petitioner lodged an election petition to question the election.  He relied on section 61(1)(a)(iv) of the Legislative Council Ordinance, Cap. 542 of the Laws of Hong Kong, complaining that Tanya Chan was not duly elected, because “material irregularity” occurred in relation to the election.  The petitioner asked the court to:

“(a) Determine whether Tanya Chan, who was declared to be elected by the Returning Officer for the Hong Kong Island Geographical Constituency in the Notice of Result of Election, was duly elected or not;

(b) If the Court of First Instance holds that Tanya Chan was not duly elected, then on the basis that the petitioner is not seeking for a re-election,

(c) Further determine whether the respondents had failed to perform item 6 of the functions of the Electoral Affairs Commission, i.e. “taking appropriate steps for the purpose of ensuring that elections are conducted openly, honestly and fairly” in that the supervision they carried out was inadequate, leading to confusion and unfair competition in the election and distortion in its result, with the consequences that the petitioner obtained less than 3% of the votes and was defeated, suffered financial loss and psychological damage, for which compensation should be paid to the petitioner.”

4.  The 1^st respondent was an Electoral Officer working at the Registration and Electoral Office.  Her duty was to assist the Senior Electoral Officer (Committee and Research) and the Deputy Chief Electoral Officer (Committee and Research) (also holds the position of secretary of the Electoral Affairs Commission (the Commission)) in providing secretariat support for the Commission, including to help the Commission to deal with complaints relating to elections.

5.  The 2^nd respondent was the Returning Officer for the Hong Kong Island Geographical Constituency in the Legislative Council By-Election.  His duty was to announce the result of the election.

6.  It was not disputed that the “material irregularity” which the petitioner complained about stemmed from a television programme “Legco By-Election 2010: Election Platforms” (立法會補選2010：聽其言) produced by Radio Television Hong Kong (RTHK).  In this programme, the candidates of each geographical constituency were introduced to the public in turn and video footage for increasing their publicity was shown.  Each candidate was allocated about 45 seconds in this programme and the time for each episode was not more than 5 minutes.  In other words, each episode could only introduce 4 candidates and broadcast video footage about them.

7.  The petitioner’s complaint was directed at an episode of this RTHK programme broadcast on the Jade Channel of TVB from 1.20-1.25 p.m. on 10 May 2010.  In this episode, only 4 candidates of the Hong Kong Island Geographical Constituency, namely candidates no. 1 to no. 4 were introduced.  As for the petitioner, who was candidate no. 5 of the constituency, introduction and video footage about him were broadcast in the episode for the following day (11 May 2010); and in that episode, materials about 3 other candidates, who belonged to another geographical constituency, were broadcast.  It was not disputed that in the episode shown on 10 May, there was no mention of the fact that in the Hong Kong Island Geographical Constituency there was a candidate no. 5, i.e. the petitioner.

8.  The petitioner complained that what happened as stated above was unfair to him, because such arrangement could easily give the viewers, among them were the registered electors of the Hong Kong Island Geographical Constituency, the wrong impression that only 4 candidates were running in the election and even the electors who knew that the petitioner was one of the candidates might misunderstand that he had withdrawn from the election.

9.  The petitioner also pointed out that one day before that, when he was being interviewed by some people from a radio station he had said that he had a concession speech ready for broadcast on the internet, and that some people of the media, based on what he said on the radio, (mistakenly) reported in the morning of 10 May that he had withdrawn from the election.  Under these circumstances, the arrangement of the television programme in question would make the electors even more likely to believe that he had really withdrawn from the election. The petitioner alleged that what happened had done “inestimable” damage to his election campaign.

10.  The petitioner stated that subsequently he and another candidate went to the Commission to stage a sit-in protest and lodged complaints, but to no avail; and the election was held as scheduled.  As mentioned before, the votes he obtained were less than 3% of the total number of ballot papers containing valid votes received in the Hong Kong Island Geographical Constituency, therefore the deposit he lodged was forfeited in accordance with the relevant provisions.  The petitioner further claimed that he had suffered financial loss and psychological damage in other areas and he claimed for compensation.

“Irregularity”

11.  The first issue in this election petition is whether there was any “irregularity” in the circumstances described above.

12.  In respect of electioneering on television and radio, the Commission made the following guidelines:

“11.3 For current affairs or other programmes on TV and radio which are not election-related, candidates/GC lists may take part as guests in these programmes insofar as their participation is pertinent. Otherwise, the “equal time” principle will apply. “Equal time’ means equal time for each of the candidates/GC lists contesting in the same constituency.”

13.  The petitioner contended that the “equal time” principle required that in the television programme in question equal time should be given to each of the candidates of the same geographical constituency, and that the time relevant to this principle was the time of each individual episode of the programme.

14.  Mr. Stanley Ng, counsel for the two respondents, submitted that so long as the television programme in question treated all candidates alike without discrimination by giving each candidate the same length of time for broadcast on television, there was no “irregularity” whatsoever.  The “equal time” principle did not require that all candidates should appear in the same episode.

15.  The 1^st respondent stated in her affirmation that:

“27. Through the guidelines in this chapter, the Commission appeals to the broadcasters to adhere to the principle of treating all candidates of the same constituency fairly and equally. When TV companies and radio companies produce election-related programmes or organized election forums, they should apply the “equal time” principle as well as the “no unfair advantage” principle to all candidates of the same constituency (see part II of the guidelines of this chapter). The Commission believes that if the media put these principles into effect, all candidates can be treated fairly and equally.

28.       However, in view of the large number of different types of media and the wide variety of forms, topics chosen, ways of expression, programme arrangements and the never-ending changes and innovations involved in the programmes they produce, it is impracticable to require the Commission to enumerate all details of the programme arrangements which comply with the above principles and which cover each and every programme of whatever form with whatever content.  After all, it is inappropriate for the Commission to meddle in the actual programme arrangements of the media, otherwise it might be viewed as interfering with the operation of the media and the decision-making power of their editorial staff and imposing restrictions on their freedom of creation.  Therefore, the Commission is of the view that the current practice is appropriate, i.e. the Commission makes guidelines with which the media is asked to comply and allows the media to produce their programmes in accordance with the above principles, without drawing up details concerning the arrangements of each programme.  Furthermore, because of the large number of election-related programmes, the Commission cannot possibly examine each and every one of such programmes before they go on the air to see whether each and every one of them complies with the above principles; but when the Commission receives a complaint about any election-related programme, it will surely investigate.”

16.  I agree that what the 1^st respondent stated in paragraph 28 of her affirmation is reasonable.  The guidelines stipulate that for the relevant TV programmes, the “equal time” principle should apply to all candidates.  As regards how to put this principle into effect, this shall be dealt with according to the actual circumstances.  The Commission cannot be required to enumerate all details of the programme arrangements which comply with this principle and which cover each and every programme of whatever form with whatever content.  Therefore, it cannot be said that the guidelines are in any way irregular per se.

17.  Nevertheless, it does not follow that the way in which the programme was produced and the arrangement made for its broadcast were free from any irregularity.  The facts showed that the petitioner’s worries were not without reason.  The episode shown on 10 May introduced the first 4 candidates of the Hong Kong Island Geographical Constituency and broadcast the promotional video footage about them, but there was no mention that there was one more candidate, namely candidate no. 5 and that introduction about him would be made and promotional video footage about him would be shown in the episode to be broadcast the following day.  Such an arrangement might cause the viewers to have the wrong impression that in respect of this constituency there were only 4 candidates, the 4 who were introduced in that episode.  If a viewer had seen this programme before and had come across the same or similar arrangement before, then he might understand that it was not necessarily true that all the candidates of the same geographical constituency would appear in the same episode.  Likewise, if a viewer saw the same programme after 10 May, he might notice the same or similar arrangement, then he would not have any misunderstanding.  Another possibility was that if a viewer saw the episode broadcast on 11 May and saw the introduction and promotional video footage about the petitioner, he would not make any mistake about the petitioner’s election activities.

18.  However, it is undeniable that the viewers and electors of this geographical constituency who had seen only the 10 May episode might be misled as a result of the way in which the programme was produced and the arrangement made for its broadcast.

19.  Generally speaking, what happened as described above would have more adverse effect in relation to a candidate who had relatively low popularity or did not enjoy much media coverage.

20.  On the whole, I find that there were irregularities in the way in which the programme in question was produced and in the arrangement made for its broadcast.  Actually, if it had been clearly announced in each episode that there were other candidates of the same constituency and that introduction and promotional video footage about them would be broadcast in the following episode, then all the irregularities would have been removed.

“Material”

21.  The next issue to be dealt with is whether the above-mentioned irregularities were “material”.

22.  My view is that in order to determine whether an irregularity is material, all relevant circumstances should be taken into account and that judgment should not be made solely on the basis of whether the irregularity complained of has affected the result of the election in any “material” way.  In my judgment, what the term “material irregularity” is targeted at are the significance and gravity of the irregularity in question, considered in the light of the cardinal principle that an election must be conducted fairly, justly and openly; its effect on the result of the election is not the only consideration.

23.  Judging from the facts of this case, I do not find that the irregularity in question is “material”.  First of all, the broadcast time of the television programme was only 5 minutes or so and the time allocated to each candidate for his presentation to the public was not more than 1 minute.  Moreover, there is no evidence before the court about the audience ratings of this programme.

24.  In addition, to promote oneself in this television programme was not the only way in which the candidates of the geographical constituencies could increase their publicity for the election.  There were other methods to make themselves known to the public, including sending letters about the by-election to the registered electors, posting up propaganda materials and carrying out election activities in public places and conducting publicity campaigns in other mass media.  The television programme in question was only one of the many means available for increasing one’s publicity for the election.

25.  Furthermore, when the Registration and Electoral Office mailed the poll card to an elector, attached thereto was an introductory leaflet about the candidates of the constituency to which he belonged; and it was clearly shown in the polling stations and on the ballot papers that the petitioner was one of the 5 candidates.

26.  As far as the television programme is concerned, certainly there was the possibility that viewers who watched this programme might be misled by it; but as mentioned above, it was also possible that the viewers, by watching other episodes of this programme, realized that it was not necessary that all candidates of a geographical constituency were arranged to appear in the same episode of this programme.  In this connection, the petitioner did not produce any concrete evidence to show that there were electors who intended to vote for him eventually did not do so because, after watching the 10 May episode of this programme, they misunderstood that he was not running in the election or had withdrawn from the election.

27.  I also notice that the nature of the irregularities were not a deliberate action done to create any unfairness in the election.  As for its significance and gravity, it was not grave, serious or irreparable.  In fact, before the election was held, the petitioner had openly made complaints and had held [a] press conference to clarify the situation.

28.  Moreover, it was not disputed that all episodes of the television programme were uploaded onto the RTHK website and could be viewed free of charge.  If any elector, as a result of watching the 10 May episode, had any question about whether the petitioner was still in this election contest or had withdrawn, he could easily obtain the answer from the petitioner or from the appropriate authorities or organizations such as the Commission, RTHK and TVB.

29.  As regards the effect of the irregularities, the petitioner agreed during the hearing that the irregularities had no effect at all on the result of the election.  He frankly admitted that regardless of what happened, Tanya Chan would still win by a big margin.  He did not deny that there was no way to prove that if the irregularities had not occurred, the votes he received would have reached 3% of the total number of the valid votes.

30.  The petitioner claimed that on 9 May in a radio programme he had mentioned that he had his concession speech ready, and that therefore the arrangement of the television programme on 10 May had done inestimable damage to his election campaign.  I do not accept this allegation.  In my view, his preparation of his concession speech was conduct totally inconsistent with his withdrawal from the election.  One day before the broadcast of the television programme, the petitioner openly declared in a radio station that he had prepared himself for his defeat in the election, and that he had his concession speech ready.  This was exactly the evidence that he had no intention to withdraw from the election halfway.  In the morning of 10 May, some people of the media mistakenly reported that he had decided to withdraw from the election, but that had nothing to do at all with the television programme broadcast in the afternoon of that day; and the petitioner had sufficient time and chance to make clarification.  These two events should not be lumped together.

31.  Having considered the case in its entirety, and for the above reasons, I find that the irregularities in question were not material.

“Duly elected”

32.  On the basis of this finding and because it is beyond any doubt that no matter whether the irregularities occurred or not, Tanya Chan was sure to win by an overwhelming majority, I further hold that in this election Tanya Chan was duly elected.

Claims for monetary remedies

33.  Such being the case, the court cannot allow the petitioner’s claims for monetary remedies either.

34.  In any event, I accept Mr. Ng’s submission on this issue.  The two respondents had no power or duty to supervise or interfere with the production or broadcast of the television programme in question; and further, even if they had done anything wrong, under section 14(1)(b) of the Electoral Affairs Commission Ordinance, Cap. 541 of the Laws of Hong Kong, no liability shall be incurred by them in respect of anything done, or omitted to be done, by them in good faith in the performance of a function or the purported performance of a function under this ordinance.  There is nothing to suggest that anything done, or omitted to be done, by the two respondents in the performance or the purported performance of any function under this Ordinance was done or omitted to be done not in good faith.  Therefore, they should not bear any legal liability in any case.

35.  Apart from that, as mentioned before, the petitioner is not able to prove that if the irregularities complained of had not occurred, the votes he received would have reached 3% of the total number of the valid votes so that his deposit would not have to be forfeited.  As for his alleged loss and damage in other areas, they are not supported by any concrete evidence.

36.  For these reason, I do not allow the petitioner’s claims for monetary remedies.

To provide a report

37.  Section 67(5) of the Legislative Council Ordinance provides that the Court of First Instance may, on its own initiative, provide the Secretary for Constitutional and Mainland Affairs, or the Electoral Affairs Commission or the Clerk to the Legislative Counsel with a report on any matter arising in the course of the trial of an election petition if in its opinion the matter should be reported.

38.  My opinion is that the irregularities occurred in this case may not necessarily be limited to be an isolated occurrence.  The same or similar situation might arise again in future.  It is worthwhile for the Commission to give it further consideration and work out suitable precautionary measures, including to consider whether the guidelines in these areas should be amended.  My finding that the current guidelines are not irregular per se does not mean that there is no room for improvement.  Thus I will, on my own initiative, provide the Commission with a copy of this judgement as a report, but I do not think it necessary to provide the Secretary for Constitutional and Mainland Affairs or the Clerk to the Legislative Council with this report.

Order

39.  I order that this election petition be dismissed.  Both parties have agreed that costs are to follow the event.  I further order that the petitioner, being the losing party, shall pay the two petitioners’ costs of this election petition, to be taxed if not agreed.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.