Re Election of Indigenous Inhabitant Representative for Indigenous Village Ha Ling Pei

HCMP 1006/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1006 OF 2015

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JUDGMENT
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1.This is an application by way of ex parte originating summons dated 24 April 2015, taken out pursuant to Section 93(1) of the Electoral Procedure (Rural Representative Election) Regulation, Cap 541L.

2.The applicant applies for an order under Section 93(2) in respect of his publication of election advertisements being in breach of the requirement under Sections 92(1)(a) and (4).

3.Background facts leading to this application can be outlined as follows.

4.The applicant is an indigenous inhabitant of the indigenous village known as Ha Ling Pei in Tung Chung, Lantau Island.  He stood election for the 2015 rural representative election.  This was the first time he had ever run for any election of a public office. 

5.On 3 January 2015, the applicant prepared a very simple one- page leaflet, using his computer and printer at home.  He made 48 copies of such a leaflet.  He inserted the leaflets into the respective letterboxes of the eligible voters in the village in the afternoon. I have studied a copy of the leaflet.  It was indeed made on an ad hoc basis.  It contained the general information of the applicant and his platform. 

6.On the evening of 9 January 2015, the applicant received a call from one Ms Lee of the Islands District Office.  He was told that his distribution of the leaflets was in breach of the requirements set out in the election guidelines.  Then the applicant immediately studied the guidelines again and realised that the leaflets were election advertisements, and his distribution of the leaflets by inserting them into the letterbox would be regarded as publication of election advertisements.  He understood that he was in breach of several paragraphs in the guidelines.

7.The relevant guidelines could be summarised as follows.  First, paragraph 4.4(2) provides that a candidate must make available a copy of each of his election advertisements and the relevant information, show documents for public inspection within one working day after publication of the election advertisements by the prescribed means. 

8.Second, paragraph 4.4(3) provides that a candidate should provide information relating to the printing/publication of his election advertisements when posting the election advertisements onto an open platform maintained by the candidate, or a person authorised by the candidate, an open platform maintained by the director of home affairs, or a person authorised by the director of home affairs, or submit the information in a specified form to the returning officer within one working day after publication of the election advertisements.

9.And paragraph 4.4(8) provides that all printed election advertisements with the exception of those printed in a registered local newspaper, should bear printing details in Chinese or English, which includes the name and address of the printer together with the date of printing and the number of copies printed.

10.By his affirmation, the applicant attributed his failure to comply with the guidelines to his inexperience and his preoccupation with his family and work matters.  He maintained that it was only an inadvertence, and a mere oversight.  He denied any bad faith in his non-compliance with the guidelines. 

11.Ms Shum for Secretary for Justice maintains a neutral stance in this application.  She very helpfully points out to this court that the fact that the applicant did not have an election agent to assist him cannot be an excuse.  She also fairly accepts that there is evidence to the effect that the applicant did make a genuine effort to familiarise himself with the relevant rules. 

12.On the evidence, Mr Chan for the applicant urges the court to accept the explanation offered by the applicant in his affirmation.  He highlighted the fact that in the present case, the applicant did take reasonable steps to understand his obligations as a candidate. The breaches were mere inadvertence.    

13.This court accepts Mr Chan’s submissions that it was a mere inadvertence, There is no complaint about the contents of the leaflet. I opine that it is an appropriate case to exercise the discretion under Section 93(1) of the Regulation to make an order excepting his publication of the leaflets from the relevant requirements.

14.Lastly,  I thank both Mr Chan and Ms Shum for their succinct and helpful submissions.

Mr Josiah Chan, instructed by Rene Hout & Co, for the applicant

Ms Sanyi Shum, Government Counsel of the Department of Justice, as Observer