Wong Yun Keung Simon v. Lam Cheuk Ting

HCAL 29/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 29 OF 2016

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D E C I S I O N

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1.This is a petition presented under s 50 of the District Councils Ordinance (Cap 547) to question the election of the respondent as a member of the North District Council in November 2015. The two issues raised are (i) whether the respondent implicitly published in his campaign materials certain misleading statements about the petitioner; and (ii) whether those statements were material.

I.  Background

2.The petitioner, the respondent and a third person Mr Lau Hon Kin were the three candidates in the District Council election for the Shek Wu Hui Constituency held on 22 November 2015.  There were 9,354 registered voters in that constituency.  A total of 4,240 votes were cast.  The petitioner, the respondent and Lau Hon Kin received 1,760 votes, 2,390 votes and 90 votes respectively.  The Returning Officer declared the respondent to be elected for the constituency.  On 30 November, pursuant to s 46 of the District Councils Ordinance, the Returning Officer published a notice in the Gazette declaring that the respondent was the elected member for the Shek Wu Hui Constituency of the North District Council.

3.S 49(1) of the District Councils Ordinance provides that the result of an election can only be questioned on certain specified grounds.  The ground relied upon in this case is that the respondent had personally or by his agent engaged in illegal conduct in connection with the election, within the meaning of s 49(1)(a)(ii).  In this context, illegal conduct means illegal conduct in contravention of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554).  S 26(2) of this Ordinance[1] provides:

“A candidate engages in illegal conduct at an election if the candidate publishes a materially false or misleading statement of fact about the candidate or candidates with whom the candidate is associated, or about another candidate or other candidates, for the purpose of –

(a) promoting the election of the candidate or candidates with whom the candidate is associated; or

(b) prejudicing the election of the other candidate or candidates.”

4.The petitioner complains that the respondent had in his election promotional banners and leaflets published materially misleading statements of fact about the petitioner for the purpose of promoting the election of the respondent and/or prejudicing the election of the petitioner.

5.In particular, the petitioner complains that the respondent had taken in isolation and out of context certain words in the petitioner’s own work report for the years 2012-2014 (“the Work Report”) that he published as the incumbent District Councillor in late 2014. 

6.So far as relevant, the relevant section of the Work Report stated:

“近年水貨客問題嚴重困擾北區，石湖墟更是首當其衝。宏觀來看，水貨客確實刺激北區甚至本港整體經濟，但同時帶來阻塞街道、區內店舖單一化等問題。惟香港是自由貿易社會，無任何法例規限買賣，因此水貨客本身的消費行為是合法的，希望各街坊能理解水貨客問題的複雜性，並非空喊口號般簡單。

政府在我任內實行了「限奶令」，而港鐵實施了限制行李重量等措施，內地政府亦採納民建聯的建議實施「亮燈計劃」，有效打擊每日過關3次或以上的水貨客，令水貨客堵塞上水港鐵站的情況得以舒緩。短期措施方面，本人會繼續聯絡相關政府部門，要求當局加強執法，以減少對居民日常生活的滋擾。

長遠方面，我們民建聯正向政府建議於邊境口岸附近興建「邊貿城」，一旦落成，部分遊客和水貨客可到「邊貿城」購物，令石湖墟人流過多的問題得以進一步舒緩。”

(In English translation, as follows:

“In recent years, parallel traders have brought serious problems disturbing the North District, and Shek Wu Hui is the first which bears the brunt. From a macroscopic perspective, it is true that parallel traders stimulate the economy in the North District or even the overall economy of Hong Kong; nevertheless, problems like obstructions, homogeneity of shops within the district and so on also follow. Free trade is allowed in Hong Kong and there is no legislation limiting purchases and sales, and therefore the purchasing activities of parallel traders are by themselves lawful. It is hoped that kaifongs would understand that the problems of parallel traders are complicated and do not simply involve shouting slogans.

Within my tenure, the Government has introduced the restriction on export of powdered formula, and the MTR has imposed limitation on weight of luggage. The Mainland authorities have adopted the suggestion of DAB (Democratic Alliance for the Betterment and Progress of Hong Kong) to implement the "light-up" checking system. All these have effectively beat those parallel traders who used to cross the border for not less than three times daily and eased the congestions created by the parallel traders at Sheung Shui MTR Station. In respect of short term measures, I will continue to communicate with relevant government departments and request them to enhance law enforcement so as to reduce the disturbances caused to the residents’ daily life.

In the long term, we DAB are proposing to the Government for building a “border shopping centre” near the border control point. Once it is built, some tourists and parallel traders may go to the “border shopping centre” to do their purchases, and hence the overcrowding problems in Shek Wu Hui can be further relieved.”

7.The respondent’s promotional materials of which the petitioner complains are as follows:

(1) On 8 November 2015, the respondent hung up on a footbridge between Sheung Shui Centre and the Sheung Shui MTR Station a banner (“the 1^st Banner”) that bore two rows of headlines:

“王潤強認為：水貨客刺激北區經濟”

“林卓廷認為：水貨令租金物價急升，影響經濟民生”

(Translation in English:

“Wong Yun Keung [the petitioner] holds that parallel traders stimulate the economy in the North District”

“Lam Cheuk Ting [the respondent] holds that parallel trading leads to rapid increase in rent and commodity prices affecting the economy and people’s living”)

This banner was on 18 November 2015 replaced by a revised version which contained a larger image of the Work Report.[2] I shall refer to this later version as the 2^nd version of the 1^st Banner.  It was hung there until 22 November 2015, the election day.

(2) Also on 8 November 2015, the respondent hung up on the footbridge another banner (“the 2^nd Banner”) that bore two rows of headlines:

“王潤強認為：水貨客的消費行為是合法的”

“林卓廷認為：內地人做水貨違反入境條例，因此政府要拉人”

(Translation in English:

“Wong Yun Keung holds that the purchasing activities of parallel traders are lawful”

“Lam Cheuk Ting holds that Mainlanders who engage in parallel trading are in breach of the Immigration Ordinance; accordingly the Government should arrest them”)

Likewise, on 18 November 2015, this was replaced by a revised version that contained a larger image of the Work Report.[3] I shall refer to this later version as the 2^nd version of the 2^nd Banner.  It was hung there until 22 November 2015, the election day.

(3) Between about 15 and 22 November 2015, the respondent hung up a third banner (“the 3^rd Banner”) on the same footbridge with the headline:

“事實勝於雄辯

王潤強任內  水貨失控”

(Translation in English:

“The fact speaks for itself

Parallel trading went out of control during Wong Yun Keung’s tenure”)

(4) In addition, between about 16 and 22 November 2015, the respondent and his agents distributed a leaflet to the public (“the Leaflet”) that contained the following words (among others):

(a) “事實勝於雄辯

王潤強任內  水貨失控”

(Translation in English:

“The fact speaks for itself

Parallel trading went out of control during Wong Yun Keung’s tenure”)

(b) “過去4年，水貨活動完全失控，但王潤強認為「水貨客刺激北區經濟」”

(Translation in English:

Parallel trading activities were totally out of control in the past 4 years, but Wong Yun Keung holds that ‘parallel traders stimulate the economy in North District’ ”)

(c) “王潤強擔任法團主席的上水中心，多個住宅被水貨客侵佔為貨倉。”

(Translation in English:

“Many residential units of Sheung Shui Centre, of which Wong Yun Keung is the Chairman of the Incorporated Owners, are wrongfully occupied by parallel traders as warehouse.”)

8.Mr Koo for the petitioner clarified at the hearing that the petitioner does not allege that the respondent by the 3^rd Banner itself published a misleading statement of fact.  He submitted however that the 3^rd Banner strengthened the misleading effect of the other materials.

9.The petitioner avers that by displaying the Banners and distributing the Leaflet, the respondent had “in effect” made materially the following four misleading statements:

“(i) the Petitioner’s concern about parallel-goods traders was their stimulation to the economy of the North District but not their disruption of the everyday lives of residents in the Constituency (or Shek Wu Hui);

(ii) the Petitioner supported parallel-goods traders activities as they would stimulate the economy of the North District;

(iii) the Petitioner had been and would continue conniving at and/or permitting the parallel-goods traders activities in the Constituency (or Shek Wu Hui);

(iv) the Petitioner had done, and would continue doing, little or nothing to suppress or control the parallel-goods traders activities or to diminish their disruption of the everyday lives of residents in the Constituency (or Shek Wu Hui).”

I shall refer to these four statements as the “first”, “second”, “third” and “fourth statements” respectively.

10.There is no dispute that the respondent is answerable for the statements held to have been published by the Banners and Leaflet.  Nor does he dispute that the publication was for the purpose of promoting or prejudicing the election of the candidates.  Mr Tam for the respondent confirmed that no defence is raised in reliance on s 26(4) of the Elections (Corrupt and Illegal Conduct) Ordinance based on any reasonable belief on the respondent’s part in the truth of the statements.

11.The respondent contends, in essence, (i) that the materials did not publish the alleged misleading statements, and (ii) that in any event they did not have a material effect on the election.  I deal with the two issues raised below.

II.  Whether the respondent published the alleged misleading statements

12.The actual materials published are not in dispute.  Nor is it disputed that the four statements allegedly published by the respondent would be misleading.  The question is whether the respondent’s materials should be held to have made those statements inferentially or implicitly or to bear the meanings alleged.  The question is an objective one of construction: see Yu Chi Shing Paul v Tin Ping Estate Proprietor Concernment Association (unrep., HCAL 8/2012; 10 December 2012), §35.

13.It is important to recall that making a materially false or misleading statement in this context constitutes illegal conduct, and that any person who engages in illegal conduct at an election commits an offence and is liable to a fine and imprisonment: see s 22(1) of the Elections (Corrupt and Illegal Conduct) Ordinance.  Although this petition concerns only the validity of the election, because of the grounds relied upon, criminal proceedings clearly loom in the background having regard to s 55(7) of the District Councils Ordinance, which provides:

“If, at the end of the trial of an election petition, it appears to the Court that a specified person may have engaged in corrupt or illegal conduct at or in connection with the election, the Court is required to provide the Director of Public Prosecutions with a report giving details of the conduct.” (emphasis added)

14.The implication of this for the exercise of ascertaining the meaning of published statements has been considered in Re Ho Chun Yan Albert (2012) 15 HKCFAR 686, at §§40-41, where the Appeal Committee of the Court of Final Appeal stated:

“40. In our view, if Lam JA fell into error at all, it was an error in Mr Ho’s favour. His Lordship had indicated in the striking out judgment, that he was prepared to apply certain defamation law concepts, and was willing to approach the meaning of the 2nd statement, ‘giving due allowance to the permissible loose-thinking on the part of a reasonable audience.’ …

41. While we do not seek to decide the point at present, it appears at least strongly arguable that he adopted too relaxed an approach to establishing the content of the statement relied on for establishing conduct constituting a criminal offence under section 26. Lam JA was content to treat ‘loose-thinking on the part of a reasonable audience’ as permissible, no doubt having in mind defamation cases which approach published statements on the basis that readers are allowed to import their own extrinsic experiences and to ‘read between the lines’, in deciding whether the imputation has a defamatory meaning. A more demanding approach is called for where it is sought to establish the commission of a criminal offence as the relevant election petition ground. The Court would have to determine whether it is proved to a standard equivalent to the criminal standard that the words, given their natural and ordinary meaning, constituted a materially false or misleading statement made with the purposes specified and without belief on reasonable grounds in the truth of the statement.” (footnotes omitted)

15.This passage, suggesting a “more demanding approach”, albeit obiter, was applied by Lam JA (sitting as an additional judge of the Court of First Instance) in Yu Chi Shing Paul, supra, at §27, where his Lordship said the context of an election petition calls for a “more stringent approach” in determining the meaning of a statement.

16.A further consideration to be borne in mind is this.  While elections must be conducted “fairly, openly and honestly”[4] and falsehoods have no place in proper campaigns, in the cut and thrust of election politics there has to be room for candidates to criticise, condemn or ridicule the policies, statements and acts of their competitors, while promoting and advertising their own positions.  Misleading meanings must not be so readily imputed to campaign material that a candidate is effectively restrained from singling out specific views of an opponent for attack.

17.As a matter of general principle the respondent does not deny that the natural and ordinary meaning of words includes what readers infer from them based on their general knowledge. In finding any meaning by inference one should however assume that the reader is reasonable and fair-minded[5], not morbid or suspicious of mind[6], nor avid for scandal.[7]

18.In particular, in the context of illegal conduct in elections, the court has warned against allowing “loose thinking” on the part of hypothetical readers to impute a misleading meaning to a statement.  As Lam JA said in Yu Chi Shing Paul, supra, at §27:

“Allowing loose-thinking in the reading of a statement in order to upset the result of an election which is otherwise proper, fair and regular is not conducive to credibility of our electoral system.”

19.With these principles in mind I turn to consider whether the four alleged statements or meanings referred to in §9 above were implied by or to be inferred from the respondent’s election materials.

The first and second statements

20.The petitioner alleges that the 1^st Banner in effect made the first and second statements referred to in §9 above.[8]  I do not agree.  In my view, the 1^st Banner simply stated that the petitioner had said in the Work Report that parallel traders stimulate the economy in the North District (which the petitioner does not deny).  The 1^st Banner indicated the source of the statement to be the Work Report and displayed an image of the relevant page of the document, which in the 1^st version was similar in size to the actual Work Report as issued by the petitioner and was enlarged in the 2^nd version of the 1^st Banner.  Even if one did not read the words in that image (which admittedly were much smaller than the words in the headline), it was obvious that the headline was only one sentence out of many in the Work Report, probably the most objectionable one in the respondent’s view. 

21.The 1^st Banner conveyed the idea that the petitioner thought that there was a benefit brought about by parallel trading, namely, stimulation of the economy.  In my view, however, it could not properly be interpreted as implying that the petitioner’s only concern was stimulation of the economy and that the petitioner was not concerned about any disruptive effect of parallel trading on the everyday lives of the residents, or that the petitioner supported parallel trading activities because they would stimulate the economy.  Nor should these be inferred by a reasonable and fair-minded reader.  One could speculate these might be the petitioner’s position but the 1^st Banner did not imply it and I do not think the respondent should be held responsible for any such conjecture.  In the present context, before concluding that the published materials implied or gave rise to an inference of any alleged veiled statements, one must find that the implication or inference is compelling.  The petitioner has not, in my opinion, passed that hurdle.

22.The fact that the respondent’s own opinion was printed immediately below the quote from the petitioner’s Work Report did not make the 1^st Banner mean what the petitioner says it meant.  It is not uncommon for candidates to present their own opinion and at the same time draw attention to particular expressed views of other candidates.  The juxtaposition of the two headlines invited a comparison of the candidates’ respective views, but did not imply that each candidate was taking a stance directly opposite to the other’s headline.

23.For completeness I have also considered the 2^nd and 3^rd Banners and the Leaflet and I do not consider that they implicitly or inferentially meant the first two statements.

The third statement

24.Equally I do not think the Banners and Leaflet published the third statement referred to in §9 above, i.e. that the petitioner had connived at or permitted, and would continue to connive at or permit, parallel traders’ activities in the constituency.  The only thing written there suggesting any personal connection to the petitioner was the statement in the Leaflet that many units in Sheung Shui Centre were being used by parallel traders as warehouse and that the petitioner was the Chairman of the owners’ corporation there.  These two factual statements are not said to be false.

25.To think on that footing that the petitioner had “connived at” or “permitted” parallel traders’ activities seems to me to be loose thinking indeed.  No inference of personal connivance could properly be drawn.  A reasonable and fair-minded reader would not be so ready to condemn the petitioner on that exiguous basis.  Again, one cannot exclude the possibility that there might be members of the public who would, upon reading the Leaflet, speculate about the petitioner’s personal connection with parallel traders.  But in the present context, pandering to certain people’s tendencies of speculation and suspicion, even if some may find it distasteful, must in my opinion be distinguished from making a false or misleading statement of fact, which is illegal and criminal.

26.There is even less basis to suggest that the Banners and other parts of the Leaflet implicitly or inferentially gave rise to the third alleged statement or meaning.

The fourth statement

27.Again I do not think that the Banners and Leaflets either individually or taken together can be said to have published the fourth statement, i.e. that the petitioner had done little or nothing, and would continue to do little or nothing, to suppress or control the parallel traders’ activities or to reduce the disruption of the everyday lives of residents.

28.As far as the 2^nd Banner is concerned, it stated that the petitioner had said that the purchasing activities of parallel traders were lawful.  The petitioner does not deny having stated that in his Work Report.  The headline did not in my view imply further that the petitioner took the position that nothing could or would be done to suppress or control parallel trading activities.

29.The statement in the Leaflet that parallel trading had gone out of control during the petitioner’s term as District Councillor is capable of different interpretations.  It could mean that the petitioner had done nothing, but it could equally mean that what the petitioner had done was wholly ineffective in curbing parallel trading, which seems to me to be a matter of comment.  Even in the law of defamation, where the hypothetical reasonable reader is allowed to indulge in a certain amount of loose thinking, he is nonetheless taken to be someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available: Skuse v Granada Television Ltd [1996] EMLR 278 at §14(2).

Conclusion

30.For these reasons I conclude that the petitioner has failed to establish that the respondent published the alleged misleading statements of fact or that the respondent’s Banners and Leaflet, taken singly or in combination, had the alleged misleading meanings.

III.  Whether the statements were material

31.If I had found that the respondent did publish the alleged misleading statements, I would have rejected Mr Tam’s argument that the statements were not material.  It is not necessary for the petitioner to prove that statements were pivotal to the result of the election; I doubt if that could ever be established in any case to any degree of certainty.  All that needs to be shown is that the statements may have affected how voters cast their votes: Yu Chi Shing Paul, supra, at §46.

32.Mr Tam prayed in aid the fact that the petitioner had himself since around 15 November 2016 published rebuttal materials during the campaign to make clear his position and refute the criticism by the respondent.  It is impossible, however, to tell how many voters who had read the respondent’s campaign materials also read the petitioner’s rebuttal materials, still less how many would have changed their impression as a result.

33.While the votes cast for the candidates were not very close in number, the respondent’s victory was not overwhelming.  As Mr Koo submitted, if 7.5% of those who voted on the day had voted for the petitioner instead of the respondent, the result would have been reversed.

IV.  Disposition

34.For the above reasons, the petition is dismissed. As required by s 55(2) of the District Councils Ordinance, I determine that the respondent was duly elected.

35.The costs, on a nisi basis, will be to the respondent.

Mr Ernest Koo and Mr Stony Chan, instructed by Hoosenally & Neo,for the petitioner

Mr Jeffrey Tam, instructed by Ho, Tse, Wai & Partners, for the respondent