MOK CHARLES PETER v. TAM WAI HO AND ANOTHER

CACV 115/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 115 OF 2006

(ON APPEAL FROM HCAL NO. 141 OF 2008)

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BETWEEN

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JUDGMENT

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Hon Tang VP:

1.  This is the Petitioner's application for leave to appeal from our judgment of 9 June 2011.

2.  It is said that the application involves questions, which by reasons of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

3.  Two questions have been identified, namely,

"1.  Do the expenses of a promotion exercise carried out by or on behalf of a person (who ultimately becomes a candidate) in a Legislative Council election incurred before he publicly declares an intention to stand as a candidate or before the election period constitute 'election expenses' within the meaning of section 2 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 ('ECICO')? ['Question 1']

2.  Is section 67(2) of the Legislative Council Ordinance, Cap 542 ('LCO'), requiring the Court to determine, in the event that it has determined that the person whose election is questioned was not duly elected, 'whether some other person was duly elected instead' confined only to the ground that 'material irregularity occurred in relation to the election' and does not apply to the other three grounds set out in section 61(1)(a) of the LCO, in particular, that 'illegal conduct was engaged in by or in respect of (the candidate) at or in connection with the election' who has incurred election expenses exceeding the statutory maximum limit? ('Question 2')"

4.  I take the first question to raise the issue whether expenses incurred prior to the public declaration of candidature or the statutory election period could be regarded as election expenses because they were incurred when the election could be said to be imminent.  I remain of the view that the introduction of the concept of an election being imminent will create great uncertainty.

5.  However, Mr Lee submits that the answer is Yes because in Fiona Jones [1999] 2 Cr App R 253 Lord Bingham described as succinct and accurate the following statement:

"An 'election expense' is 'spending during the election campaign or when it is reasonably imminent on something closely related to the machinery of the election, its processes, principally or primarily with the purpose and intention of promoting the candidate's election prospects'." 256F

6.  But, as Lord Bingham has explained, in the United Kingdom:

"… The calling of a general election is a function of the Prime Minister. … In peacetime, general elections may be held in very close succession (as in 1910 and 1974), or at relatively short intervals (as in 1929/1931, 1950/1951 and 1964/1966), …"  255A

7.  In my judgment of 9 June 2011 I noted the facts in Fiona Jones as follows:

"41.   In Fiona Jones, the Prime Minister announced the general election on 17 March 1997. Mrs Jones was formally adopted as a candidate at a meeting on 29 March 1997. Parliament was dissolved on 8 April 1997.  The Newark returning officer received the writ relating to the election on 9 April, and formal notice of the holding of the election was published on 11 April. Mrs Jones was duly nominated before nomination was closed on 14 April. Polling took place on 1 May.  She was prosecuted because it was said that she and her election agent failed to declare expenses arising from the rental of an office in Newark (from which she later ran her campaign) during February and March 1997 before the election was called."

8.  There was no suggestion in Fiona Jones or any of the cases which we have been referred to that prior to the announcement by the Prime Minister of his intention to call a general election (In the Borough of Oxford (1924) 7 O'M&H 49 another decision relied on by Mr Lee, the General Election was accepted to be imminent after the Prime Minister had announced a dissolution of Parliament), an election could be regarded as imminent for this purpose because, for example, of intense speculation (subsequently vindicated) that the Prime Minister might call an election.  Elections are too important to permit such uncertainty.

9.  Mr Lee emphasised the importance of this issue by reference to the forthcoming election of the Chief Executive.  He submitted that a decision on the first issue may bear on the conduct of the likely candidates.  He said some potential candidates might have acted on the majority judgment.  Whether that is so or not, it is not a sufficient reason for leave to be given.

10.  In any event whether this is a point of great general or public importance, I would not grant leave to appeal.  In deciding whether to exercise our discretion to grant leave I believe we are entitled to consider the strength of the appeal.  Where a member of the court has taken a contrary view, normally I would be unwilling to express any view on the strength of the appeal.  In this case, I feel I must express a view to explain why I do not believe this is an appropriate case for us to grant leave to appeal.  The strength of the appeal (which, with respect, I regard as low) is one reason why I would not grant leave to appeal.  Also, I would be slow to grant leave to appeal because it is desirable that election petitions should be resolved quickly.  In refusing leave I know that, if thought appropriate, the Appeal Committee will give leave to appeal.  And an application to the Court of Final Appeal for leave to appeal can be heard relatively quickly.  There is also the advantage that in granting leave, the Appeal Committee may require the appeal to be heard expeditiously.

11.  So far as the second question is concerned, it was hardly argued before us.  In any event, it depends on the first issue and is academic otherwise.

12.  The Applicant also relies on the "or otherwise limb".

13.  He relies on the decision of this Court in Syed Haider Yahya Hussain and Another v. The Registrar of Births and Deaths (unreported, CACV 77/2000, dated 20 February 2001) where leave to appeal on the "or otherwise limb" was granted.  In doing so, Rogers VP, giving the judgment of the Court, said:

         "In my view, in this case the words 'or otherwise' are probably applicable in this case.  This is a matter of immigration.  It is a developing branch of law.  The decision of the Court of Appeal was a majority decision and overruled the judge below.  There are, therefore, clearly issues to be decided there.  Without saying more at this stage, immigration cases might be considered to be cases which are appropriate to be decided by the Court of Final Appeal.  Whether that situation will continue for long is a matter to be seen.  At any rate at this stage, the issues in this case are sufficient to bring the case within the proviso 'or otherwise' to merit giving leave to appeal to the Court of Final Appeal."

14.  It is true that our decision was not unanimous. But, that is not a sufficient reason for leave to appeal to be granted. 

15.  In Richfine Development Ltd t/a Keng Fai Jewellery v. Hugh Rupert Rivington (unreported, CACV257/2008, dated 22 June 2009) (Tang VP, Cheung JA and Yuen JA), we said:

"17.   … leave to appeal on the 'or otherwise' limb should rarely be granted by this court."

16.  I would refuse leave to appeal.

Hon Stock VP:

17.  It would seem from a combination of the terms of the first question posed and the argument advanced in support of it, that the gravamen of the majority judgment of this Court has been misunderstood as suggesting that expenses incurred before the election period for material used during the election period were not election expenses as defined.

18.  A reading of paragraphs 115 to 118 inclusive makes clear, I would suggest, that I expressed the view that "expenses incurred before the election period, the fruits of which are used during the election period may nonetheless constitute election expenses": see para 115.  Implicit in paragraph 116 , where the emphasis, by contrast, is on an exercise carried out (ie promotion material used) before the election, is the contrary scenario with which this case was primarily concerned.

19.  So, on the basis of the majority judgment, the answer to the question posed would be: "It depends on whether the material created by the expenses is utilised during the election period."

20.  That said, I can see that the issue to which the question is directed, albeit not as precisely as it might, is a question of importance.  But the construction contrary to the view of the majority opens a Pandora's box of uncertainty and the subject matter and the balance of the arguments are such that it seems to me that this is the type of case in which, for the reasons explained by Tang VP, it would be more appropriate for the question of leave to be determined by the Court of Final Appeal.

21.  I would therefore refuse leave in relation to the first question.

22.  As for the second question, it was not suggested - certainly not by my judgment in the appeal - that section 62 was connected with the specific grounds for questioning an election specified by section 61.  The question posed by section 62 is whether, if a person was not duly elected, some other person was duly elected instead.  That must turn on the facts.  I would refuse leave on the question posed.

23.  On the "or otherwise" limb, I would refuse leave for the reasons given by Tang VP.

Hon Cheung JA:

24.  For my part I consider the issues of pre-election expenses and the basis for the operation of section 67(2) of the Legislative Council Ordinance as identified by the two framed questions are matters of great general public importance that merit an examination by the Court of Final Appeal.  Accordingly, I would grant leave to appeal.

Hon Tang VP:

25.  By a majority leave to appeal is refused with a cost order nisi that the Petitioner pays the Respondent the costs of this application to be taxed unless agreed.