Re LEUNG KAM HO, GILBERT

1994, No. MP2357

HEADNOTE

Application under S. 26 of the Corrupt and Illegal Practices Ordinance for exemption from consequences of illegal practices.

The object of the limitation on election expenses is to put all candidates in an election on equal financial footing to prevent political candidates from obtaining support with lavish expenditure of money and not their own merits or the justice of their cause.

An election agent must take reasonable steps to familiarise himself to some extent with election law so as to ensure that the election is pure and free from illegal practice. An election agent cannot be allowed to shut his eyes to election rules and regulations and when contravention occurs, be grant exemption by the Court.

Inadvertence must be a reasonable act of inadvertence and not wilful disregard or turning a blind eye.

In an application under S.26, the Court will only entertain such an application if contravention is admitted to have been committed and there is no dispute as to evidence pertaining to relevant matters.

1994, No. MP2357

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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REASONS FOR DECISION

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1. This is an application by Leung Kam Ho, Gilbert (Gilbert Leung) for an order under Section 26 of the Corrupt and Illegal Practices Ordinance, Cap.288 (the Ordinance) that certain payments made by Leung Kam Chung to be exempted from the Ordinance which payments constitute contravention of section 13 of the Ordinance so that Leung Kam Chung shall not be subject to any of the consequences under the Ordinance or any other enactment by reason of such contravention.

2. Gilbert Leung was a candidate in the Regional Council Elections held on the 5th of May 1991 at the Sai Kung Constituency (the Election). In connection with the Election, Gilbert Leung appointed his elder brother, Leung Kam Chung as his election agent. Leung Kam Chung was also Gilbert Leung's election agent in his unsuccessful District Board Elections held on the 3rd of March 1991.

3. Subsequent to the Election, on the 3rd of September 1992, Leung Kam Chung was arrested by the Independent Commission Against Corruption (ICAC) and charged with three offences of making a payment in excess of the maximum scale of election expenses prescribed by the Governor in Council contrary to Sections 10 and 13(2) of the Ordinance. The three charges against Leung Kam Chung were brought in the Kwun Tong Magistracy and are being adjourned pending the outcome of the present application.

4. It is not in dispute that the maximum election expenses prescribed by the Governor in Council in connection with the Election was $70,000.00 for each candidate and it is agreed that Gilbert Leung had spent a total of $139,542.00 and therefore whoever was instrumental for such excessive expenses would be in contravention of the provisions of the Ordinance and the act of over-spending would be an illegal practice. Such concession had to be made before the Court can entertain any application under Section 26 of the Ordinance as there are clear authorities to the effect that

"an application must not be made hypothetically in respect of certain matters if found by the court to be illegal."

5. The subject matters of the three charges against Leung Kam Chung are the respective sums of $2,000.00, $10,000.00 and $7,600.00 but ICAC had indicated that the sum of $7,600.00 will be amended to $13,950.00 if the charges proceed to trial.

6. It is the ICAC's allegation against Leung Kam Chung as shown in the Summary of Facts of the case against him that:

"About two weeks before the election day, the defendant (Leung Kam Chung) contacted Mr. Hung Tin-sung, a representative of a company hiring small light buses (nanny vans) and requested him to hire ten 'nanny vans' for the transportation of voters to the polling stations on the election day. The defendant offered to pay $1,200.00 for each van.

Hung did as instructed and on about 2nd of May 1991, the defendant paid Hung $2,000.00 as deposit for the hiring of the vans. (Charge A)

On the election day, the defendant paid Hung the outstanding balance of $10,000.00. Hung subsequently distributed the money among all the ten 'nanny van' drivers including a share for himself. (Charge B)

The defendant had also hired 24 taxis for the transportation of voters in Mr. Gilbert Leung's election.

On about 6th of May 1991, the defendant instructed one of Mr. Gilbert Leung's election helpers, Mr. Cheng Pui Yuk, to prepare vouchers for the expenses spent on the hiring of the taxis. Investigations ........ 25 taxi drivers have now been traced and interviewed and the total paid was $13,950.00. (Charge C)"

7. It is agreed that when the aforesaid three payments were made or incurred, Gilbert Leung had already spent or incurred election expenses in excessive of the limit of $70,000.00 and Leung Kam Chung would have contravened Section 13(2) of the Ordinance.

8. It is submitted that the overpayment by Leung Kam Chung arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature, and in any case did not arise from want of good faith and that in the circumstances it is just that Leung Kam Chung should not be subject to any of the consequences under the Ordinance of the overpayment.

9. In support of the application, both Gilbert Leung and Leung Kam Chung have filed affirmation setting out the circumstances in which the contravention was alleged to have been committed. The gist of their affirmation is that Leung Kam Chung was asked to be an election agent for Gilbert Leung out of convenience and that he had not been supplied with any of the documents setting out the rules and regulations to be followed in an election. It is suggested that Leung Kam Chung was never informed nor did he ever find out the legal obligations of an election agent although he was also Gilbert Leung's election agent in his unsuccessful District Board Election in March 1991.

10. Leung Kam Chung stated in his affirmation:

"I was asked by the Applicant (Gilbert Leung) to become the election agent to this candidature in the District Board Election in March 1990. I accepted the appointment and helped the Applicant during the campaign.

On that occasion, I was not told of the duties and responsibilities of an election agent. Nor was my attention drawn to any of the manuals, notes, guidelines or publication informing candidates and/or their staff about the elections. Throughout that occasion, my impression was that the appointment of an election agent was one of the procedures to enable someone to stand for election. I was merely assigned tasks by the Applicant or other to perform on a voluntary basis. During the campaign I was not instructed by anyone of the duties and responsibilities of an election agent or of offences associated with elections. No one had ever drawn my attention to any manuals, guidelines, notes or literature on this subject."

11. From his affirmation, Leung Kam Chung's attitude was that he was turning a complete blind eye to the rules and regulations governing the Election as well as his duties and obligations as an election agent. He was not aware of the legal capacity of an election agent. He was not aware of the duties and obligations in connection with an election and he made no enquiries on such matters at all. When he made the payments in question, he had no idea of the state of the expenses in connection with Gilbert Leung's election.

12. Mr. McCoy, on behalf of the Applicant put forward very simple argument, namely that the payments made by Leung Kam Chung was the result of inadvertence on his part. He relied on the case Re Bernacchi & others [1957] HKLR 185 to support the preposition that inadvertence means negligence or carelessness where the circumstances show an absence of had faith. He also relied on the case Nichol v. Fearby [1923] KB 480 to say that ignorance of the law may amount to inadvertence.

13. I do not disagree with the either of the aforesaid prepositions. I think McCordie J. was also right in his observation in Nichol's case (supra) when he said at page 501:

"But I cannot, however, forget the fact that the code which governs both Parliamentary elections and municipal elections is very rigorous, very detailed and intricate. The majority of those who are candidates are laymen and not lawyers, and it is easy for an ordinary layman to overlook or misappreciate the innumerable technical requirements which surround municipal as well as Parliamentary elections. Hence the frequent grant of relief by the Court."

14. On the other hand, can an election agent adopt the attitude as Leung Kam Chung did in completely ignoring his legal capacity in an election ? Can he turn a blind eye to the duties and obligations in connection with an election ? Can he make payments and claim he has no idea of the state of the expenses ? Can he do all these and when contravention of the Ordinance are made be allowed to be exempt from all consequence because the contravention are the result of inadvertence ? The answers to these questions are clear to the Court.

15. The object of the limitation on election expenses is to put all candidates in an election on equal financial footing to prevent political candidates from obtaining support from their candidature with lavish expenditure of money and not their own merits or the justice of their cause which is a fundamental and cardinal principle in any fair, just and open election. To condone the behaviour of Leung Kam Chung is to undermine the very foundation of a fair, just and open election.

16. What cannot be ignored is that under Regulation 15 of the Electoral Provisions (Procedure) Regulations Cap.367 a candidate can only appoint one election agent who

"shall have authority to do all things necessary at the election which could have been done by the candidate in person and at any time in the absence of the candidate may take any steps and incur any expenditure on behalf of the candidate and any such acts of the election agent shall be as effectual as if they had been done by the candidate in person."

17. In the opinion of the Court, an election agent must take reasonable steps to familiarise himself to some extent with election law so as to ensure that the election is pure and free from illegal practices. An election agent cannot be allowed to shut his eyes to election rules and regulations.

18. In Munro and M'Mullen [1920] S.C. 218 Lord Mackenzie commented at page 221:

" It must be understood that a man who is not a lawyer, if he engages to act as an election-agent, must recognise that his first duty is to make himself acquainted with what his obligations are."

Lord Strathclyde said in the same case at page 222,

" I wish to add that, after Smith and Sloan [1919] S.C. 546 and after this case, I do not think that this Court will be very ready to accept such excuses as have been offered in the case of the second-named petitioner here [the election-agent]. This case, I think, ought to be sufficient warning to men who take up the duties of election-agent that their first business is to acquaint themselves with what these duties are, especially with reference to the statute."

19. In Ex Parte Polson and Another (1923), 39 T.L.R 231 An election agent applied for relief under the Corrupt and Illegal Practices Prevention Act for failure to transmit the return and declaration of the election expenses within the prescribed time. In his affidavit, he said that before the General Election he had been organising secretary to Sir Thomas Polson's political organization. He had never made a study of the legal or technical side of the conduct of an election, and he had not realized that the duties of an election agent were the subject of such strict legal requirements. He chiefly concerned himself with work in the constituency, and left matters of account and book-keeping to the assistants in the committee rooms. He did not check the receipts. He expressed his sincere regret for the irregularities, but he assured the Court that none of them arose from any lack of good faith. In refusing the application, Mr. Justice Sankey said the following:

"An election agent was not bound to know every syllable of the law of elections, but Mr. Dawes knew nothing either of the law or of what an agent's duties were. It was not right that any ignorant person should become an election agent and possibly impugn the return of the candidate for whom he had acted. Many things had been left undone which should have been done and many things have been done which should not have been done. A 'political organizer' might be one of the most ignorant person imaginable. A person of no skill and knowledge could not obtain a post of election agent and neglect his duties altogether so as gravely to imperil the success of the candidate or that candidate's right to sit in Parliament, and then come to the Court and obtain relief because he had acted without any corrupt motive."

20. In Re County Councils' Elections. Layton and Wood bridge's Case (1889), T.L.R 198 Mr. Justice Wills said the following:

" I am of the same opinion, Candidates are only entitled to relief under section 20 (2) if the act 'arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature.' That seems to me it must be a reasonable act of inadvertence; and further, we must be satisfied it be 'just' before we make this order"

21. I have considered the application carefully. I cannot see how it can be said that the contravention in question is the result of a reasonable act of inadvertence. I cannot see how it can be "just" to grant reliefs under Section 26 of the Ordinance in favour of Leung Kam Chung even on the facts as presented by the Applicant when he shut his eyes completely to the election rules and regulations and to his duties and obligations as an election agent.

22. Further, on the issue of whether there was any 'want of good faith', there is clear conflict of evidence on the affidavits before the Court. On the question of payment to the 24 taxi drivers, both Gilbert Leung and Leung Kam Chung stated in their affirmations that only $150.00 was paid to each of the drivers who also signed a receipt for the same amount. Leung Kam Chung claimed that be did not know how any extra payments came to be made. The ICAC' s allegation is that the taxi drivers received more than $150.00 each and according to the statement of one of the prosecution witnesses, Mr. Cheng Pui Yuk which was presented to the Court as an agreed statement, Leung Kam Chung indicated that the taxi drivers would not be paid less than last time, referring to the District Board Election in which he also acted as Gilbert Leung's election agent.

23. Mr. Cheng also said that Leung Kam Chung had told him that the total charges for the 10 minibuses were $2,000.00 which was the amount declared whereas Leung Kam Chung accepted that he did pay $12,000.00 for the minibuses but claimed that he had no idea why such expenditure was not declared. These matters are all relevant to the issue of whether there was 'want of good faith' on the part of Leung Kam Chung when the contravention was committed.

24. It is not for this Court to resolve dispute as to facts. Indeed as the Court had observed, an application under Section 26 of the Ordinance can only be entertained if it is admitted that an illegal practice had been committed. However in his affirmation, Leung Kam Chung had raised much dispute as to whether he was himself criminally liable for such illegal practice, a matter that can only be resolved in the criminal proceeding against him. On this ground too, the application must also be refused.

25. Mr. McCoy suggested in the course of his submission that if the charges against Leung Kam Chung proceed to trial, it will take many weeks as it involves many witnesses. He submitted that it may be unfair to Leung Kam Chung and may not be in public interest to allow the case to proceed when the maximum penalty for the offences is one of a fine of $2,500.00 and imprisonment of 3 months particularly when section 13 of the Corrupt and Illegal Practices Ordinance has recently be amended so that only the candidate in an election can be guilty of an offence of spending or incurring an election expenses in excess of the maximum permitted by the Governor in Council.

26. Mr. McCoy may well be right in his observation. But that is not a relevant consideration in deciding whether Leung Kam Chung should be granted the relief under section 26 of the Ordinance.

27. If it is considered not fair or not in the public interest to continue with the prosecution against Leung Kam Chung, it is a decision that has to be made by the Attorney General. On the other hand, whether the concession made in this Court will render the Attorney General's task less onerous is also a matter for the Attorney General to consider.

28. Suffice for me to say that the present application is completely without merit and has to be dismissed.