Man Chi Chuen v. Secretary for Justice

HCMP 914/2018

[2019] HKCFI 2913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 914 OF 2018

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Before: Hon Chow J in Chambers (Open to the Public)

Date of Hearing: 27 November 2019

Date of Judgment: 2 December 2019

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JUDGMENT

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INTRODUCTION

1.In this application commenced by way of an Originating Summons dated 15 June 2018 and issued on 19 June 2019, the Applicant seeks the following orders from the court:

(1) an extension of time to lodge the “Return and Declaration of Election Expenses and Election Donations” dated 15 June 2018 (“the June 2018 Election Return”) with the Chief Electoral Officer pursuant to Section 40(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“the Ordinance”), notwithstanding the expiry of the permitted period for doing so under Section 37 of the Ordinance; and

(2) relief from any penalties and/or disqualifications that are imposed, or could be imposed, by Sections 37 and 38 of the Ordinance or any electoral law for his failure to lodge an election return within the permitted period under Section 37 of the Ordinance.

2.In what follows, unless the context indicates otherwise, references to Sections shall be to the Ordinance.

BACKGROUND FACTS

3.The Applicant was a candidate in the 2016 Election Committee Subsector Ordinary Elections for the Architectural, Surveying, Planning and Landscape Subsector (“the 2016 Subsector Elections”).  He submitted his nomination form for standing as a candidate in that election on 9 November 2016.  The election was held on 11 December 2016, and the Applicant failed in the election.

4.The Applicant was reminded, both before and after the date of the 2016 Subsector Elections, of the requirement to lodge an election return with the Chief Electoral Officer on or before 14 January 2017.  In particular, he was so informed (i) by various documents contained in the “Candidate’s Folder” which the Applicant received upon submission of his nomination form, (ii) at the Candidates’ Briefing Session held on 18 November 2016, (iii) by a letter sent by the Chief Electoral Officer dated 13 December 2016, and (iv) by a telephone call from the Registration and Electoral Office on 12 January 2017.  In addition, the deadline for lodging the election return was clearly stated on the website for the 2016 Subsector Elections.

5.Notwithstanding the aforesaid reminders, the Applicant failed to lodge his election return with the Chief Electoral Officer on or before 14 January 2017.  By this application, the Applicant seeks an order from the court to allow him to lodge the June 2018 Election Return out of time.

6.The Applicant’s explanation for his failure to lodge his election return before the end of the permitted period is, in summary, as follows:

(1) About 3 weeks before the date of the 2016 Subsector Elections, the Applicant received an offer for a new job which he accepted, with the consequence that he had to hand over his previous job duties within a period of some 4 weeks.

(2) Within 1 week after election, he had to vacate from the office of his previous employer for whom which he had worked for about 27 years.  He packed more than 100 carton boxes of documents and personal belongings from his old office and brought them over to his new office.

(3) After moving into his new office, the Applicant unpacked the carton boxes and found that he had lost many documents and receipts relating to his running as a candidate in the 2016 Subsector Election.  He was therefore unable to complete his election return.  By that time, the deadline for submitting his election return had already expired.  It is the Applicant’s belief that the relevant documents and receipts were lost in the course of his moving office.

(4) The Applicant then asked other candidates who had run the election together with him in the Architectural, Surveying, Planning and Landscape Subsector to provide him with copies of receipts for the election expenses which were shared amongst them.  He managed to obtain most of the relevant receipts, but there were still some which he could not obtain.  He also sought help from his election agent for the outstanding documents, but was told by the agent that they did not keep receipts for the election expenses. The agent told him that they would try to obtain duplicate copies of the receipts from companies and shops, but were unable to confirm when the documents would be available.

(5) In or about March 2017, the Applicant prepared a draft election return, and looked for a law firm to assist him to make an application to the court for relief from the consequences of his failure to lodge his election return within the stipulated time limit.  However, various firms that he had contacted told him that they had no experience in making this type of application, and were reluctant to take up his case.

(6) Eventually, in or about April 2018, the Applicant was introduced to his present solicitors, Messrs Ho Tse Wai & Partners (“HTW”), who agreed to take up his case.  Upon checking the draft election return prepared by the Applicant, HTW considered the same to be insufficient and requested the Applicant to provide further information in order to prepare a proper return.  The Applicant then engaged an experienced agent to help.

(7) Between April and June 2018, the Applicant obtained further information and some legal advice from HTW, and prepared the June 2018 Election Return.  The present application was made on 19 June 2018, which was supported by his First Affirmation dated 15 June 2018.

7.On 23 July 2018, the Respondent filed an Affidavit of Ip Tsz Man Carmen, pointing out (inter alia) various irregularities in the June 2018 Election Return.  Between August 2018 and May 2019, HTW sought information and assistance from the Respondent, other candidates who had run together with the Applicant in the 2016 Subsector Elections, and the ICAC to check and verify the irregularities as pointed out by the Respondent.  The Applicant then prepared a revised election return dated 23 May 2019, which was exhibited as “MCC-5” to the Applicant’s Second Affirmation dated 23 May 2019.

DISCUSSION

8.Section 37 states as follows:

“(1) Each candidate at an election must lodge with the appropriate authority an election return setting out –

(a) the candidate’s election expenses at the election; and

(b) all election donations received by or on behalf of the candidate in connection with the election.

(1D) For an election to membership of the Election Committee, the candidate must ensure that the return is lodged before the expiry of the period of 30 days after [the date on which the subsector election becomes settled].

(1E) For the purposes of subsection (1D), an election is settled on the date on which any of the following events occurs in relation to the election –

(a) the result of the election is notified in the Gazette …

(1N) Despite subsections (1A), (1B), (1D), (1F), (1H), (1J) and (1L), the return may be lodged within any extended period allowed by the Court under section 40”.

9.For the purpose of an election to elect a member or members of the Election Committee, the “appropriate authority” referred to in Section 37(1) means the Chief Electoral Officer.

10.In the present case, the results of the 2016 Subsector Elections were published in the Gazette on 15 December 2016. Accordingly, the deadline for the Applicant to lodge his election return fell on 14 January 2017.

11.Section 38(1) makes it an offence for a candidate who has failed to lodge an election return as required by Section 37.  A candidate who is convicted of this offence is liable to a fine at level 5 and imprisonment for 1 year if tried summarily, and to a fine of HK$200,000 and imprisonment for 3 years if tried on indictment.  In addition, a candidate who is convicted of an offence under Section 38(1) is subject to the same disqualifications as a person convicted of having engaged in illegal conduct.

12.Section 40 empowers the court to grant relief to a candidate who has failed to observe the deadline for lodging an election return in certain circumstances.  The following provisions are relevant for the present purpose:

“(1) A candidate who is unable or has failed to lodge an election return as required by section 37 before the end of the permitted period can apply to the Court for an order allowing the candidate to lodge with the appropriate authority an election return within such further period as the Court specifies.

(2) On the hearing of an application made under subsection (1), the Court may make the order sought, but only if it is satisfied that the inability or failure to lodge an election return as required by section 37 was attributable to -

(a) the applicant’s illness or absence from Hong Kong; or

(b) the death, illness, absence from Hong Kong or misconduct of an agent or employee of the applicant; or

(c) inadvertence or an accidental miscalculation by the applicant or any other person; or

(d) any reasonable cause,

and was not due to the applicant’s bad faith.”

13.There are two elements, one positive and one negative, to be satisfied by a candidate seeking to avail himself of the relief available under Section 40.  In particular, he has to show that his failure to lodge an election return within the permitted period was:

(1) attributable to one or more of the four grounds listed under Section 40(2)(a) to (d) (the positive element); and

(2) not due to bad faith (the negative element).

14.In the present case, the Applicant relies on Section 40(2)(c) and (d), ie his failure to lodge the election return within the permitted period was attributable to “inadvertence” and/or “reasonable cause”, and submits that the failure was not due to his “bad faith”.

15.The following principles relating to the court’s exercise of its power under Section 40 of the Ordinance are relevant for the purpose of the present discussion.  First, the burden is on an applicant to prove the necessary elements under Section 40 for the court to grant relief under that section (Re Liu Sing Lee [2003] 3 HKLRD 162, at §29 per Chu J; Martin Charles V M Lister v Secretary for Justice, HCMP 202/2017 (29 June 2017), at §5 per Au-Yeung J).

16.Second, “inadvertence” in the present context means “negligence or carelessness where the circumstances show an absence of bad faith”.  An applicant is also required to adduce evidence to show “some reasonable excuse” for the inadvertence, which means “the negligence must not be of so gross a nature or so culpable as of itself to raise doubts concerning the good faith” of the applicant (see Re Brook Bernacchi & Others [1957] HKLRD 185, at 186 per Gould J; Martin Charles V M Lister, supra, at §3).

17.Third, it is the duty of a candidate to keep proper records and ascertain the deadline for lodging his election return. Reliance on his fellow candidate is not sufficient.  It is also incumbent upon a candidate to preserve papers for preparing the election return (Martin Charles V M Lister, supra, at §§24 and 27).

18.Lastly, the court’s power to grant relief under Section 40 is discretionary, and the discretion should be exercised in a manner which is consistent with the integrity of the election legislation.  In Re Yiu Chun Fat, HCMP 1482/2007 (5 November 2007), the following was said by Lam J at §12 of his judgment:

“In my judgment, if an applicant did not place enough significance on the obligation to file an election return, the court would require some good reason before it should exercise its discretion to grant relief. Section 40(2) gives the court a discretion. I think it is important that the discretion should be exercised in a manner which is consistent with the integrity of our election legislation. Those participate in election should be aware that these are serious matters and therefore they should take reasonable steps to comply with their legal obligation at the time when they put themselves forward as a candidate for any election.”

19.Earlier in the judgment, at §10, the learned judge also stated the following:

“Although the law did give the court the power to grant relief in cases of inadvertence absent of bad faith, I think it is important that each candidate should bear in mind and take seriously their obligation to file an election return. I think it is high time that a strong message should be passed to every candidate that one cannot expect this court to grant relief simply because they say, ‘Well, I failed to do it because of my forgetfulness.’ If relief is granted too readily, I am afraid there is a tendency that people do not take this requirement of the law seriously enough.”

20.This sentiment was echoed by Chu J, at §13 of her judgment in Re Tse Hon Kwong [2011] 1 HKLRD 992.

21.In this case, as I understand from the submissions of Ms Kao (for the Secretary for Justice), bad faith is not alleged against the Applicant.  I shall proceed on the assumption that the Applicant’s failure to lodge the election return within the permitted period was not due to bad faith, and concentrate on the elements of “inadvertence” and “reasonable cause”.  It is also common ground that the court’s main focus should be on the period of delay of about 17 months up to the date of the Originating Summons, but not the Applicant’s further delay in setting this matter down for hearing.

22.I am not satisfied on the evidence that the Applicant’s failure to lodge his election return within the permitted period as required by Section 37 was attributable to either “inadvertence” or “reasonable cause”.  The evidence adduced by the Applicant to explain his failure is vague and general, and wholly fails to condescend upon particulars:

(1) The Applicant has failed to set out what, if any, steps he had taken to see that the relevant documents and receipts relating to his running as a candidate in the 2016 Subsector Elections were properly kept prior to moving office.  In this regard, it is of note that the Applicant submitted his nomination form for standing as a candidate in the election on 9 November 2016, but he did not, apparently, receive his new job offer until about three weeks prior to the date of the election on 11 December 2016.  The Applicant ought to have established a proper filing system to keep the relevant documents and receipts as soon as he decided to run in the election or, at the latest, by the time that he submitted the nomination form, and take extra care to ensure that they were properly kept or preserved once he knew he was going to move to a new office.

(2) The Applicant has wholly failed to identify or particularise what documents he found missing and what documents were still available when he unpacked his carton boxes in January 2017 (at a time when the deadline for lodging the election return had already passed).  Likewise, he has failed to particularise what steps he had taken to locate the missing documents, what documents or receipts were provided to him by his fellow candidates, and what documents were outstanding or required.

(3) It is not clear how the Applicant was able to prepare an election return in March 2017[1], when he also alleges that he only managed to “get all [his] election receipts in or about April 2018” (see §10 of his First Affirmation).  It would appear, from §6 of his Second Affirmation, that the election return prepared in March 2017 was only a “draft”.  Even so, the Applicant has failed to particularise what further documents or receipts he managed to obtain between March 2017 and April 2018, and the source(s) of those documents or receipts.

(4) The suggestion that it took the Applicant over one year (from about March 2017 to April 2018) to find a solicitor willing and able to act for him to make the present application is difficult to accept.  An application for relief under Section 40 is straight-forward, and not novel in Hong Kong.  There are many reported and unreported cases on such applications, some of which have been cited above.  The Applicant has not identified the law firms that he had approached which, according to him, were reluctant to take up his case.  On the existing evidence, I am not prepared to accept the Applicant’s bare assertion regarding the time taken by him to find a law firm who was willing and able to make this application on his behalf.

(5) The Applicant has failed to explain what assistance was actually given by the “experienced” agent which finally enabled him to prepare the June 2018 Election Return (see §12 of his First Affirmation and §7 of his Second Affirmation).

(6) The Applicant has not explained or particularised what “further information” he had obtained between April and June 2018 which enabled him to prepared the June 2018 Election Return (see §9 of his Second Affirmation).

23.Further, in evaluating the evidence adduced by the Applicant, the court is entitled to take into account the following matters:

(1) This is not the first time that the Applicant has failed to lodge his election return within the permitted period under Section 37.  The Applicant also stood as a candidate in the 2011 Election Committee Subsector Ordinary Elections (Architectural, Surveying, Planning and Landscape Subsector), and likewise failed to comply with Section 37 on that occasion, which eventually resulted in a verbal warning being given by the ICAC to him.  In his Second Affirmation, the Applicant gives the excuse that he “only joined the other people together as a group to run for the election” in 2011, and the group –

“had hired an agent to assist us in preparing our Election Return. All the expenses which were incurred by our group members would be kept by the agent for preparing the Election Return, and in fact, I had no experience in preparing the return”.

In my view, it is not a good or acceptable excuse for the Applicant to seek to put the blame on the election agent for his failure to observe an important and serious statutory duty under Section 37.  The statute imposes a personal obligation on an election candidate, not on his agent, to lodge an election return within a stipulated time period.  In any event, having regard to this previous incident, the Applicant ought to have taken or paid extra care and attention to ensure that he fully complied with the obligation under Section 37.

(2) The Applicant is a senior professional person and well educated.  There is no suggestion that he was unaware of, or did not understand, the legal requirement to lodge an election return within the permitted period under Section 37.

(3) There has been an inordinate delay, of some 17 months, in making the present application.

24.Overall, the Applicant has failed to show that his failure to lodge an election return within the permitted period under Section 37 was attributable to either “inadvertence” or “reasonable cause” within the meaning of Section 40(2)(c) and (d).  In any event, having regard to the paucity of the evidence adduced by the Applicant to explain his failure to lodge an election return within the permitted period, and his delay in making this application, I am not prepared to exercise my discretion under Section 40 to extend the time for the Applicant to lodge his election return in relation to the 2016 Subsection Elections.

DISPOSITION

25.The Applicant’s application by his Originating Summons dated 15 June 2018 is dismissed with costs to the Respondent, to be taxed if not agreed.

Ms Christy Wong, instructed by Ho Tse Wai & Partners, for the Applicant

Ms Vivian Kao, SGC (Ag), instructed by Department of Justice, for the Respondent