Cheng Keung Fung v. Hung Chun Hin and Another

HCAL 3665/2019

[2021] HKCFI 253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3665 OF 2019

________________________

BETWEEN

(RETURNING OFFICER OF THE TSUI PING CONSTITUENCY)

________________________

________________________

J U D G M E N T

________________________

INTRODUCTION

1.The Petitioner (Mr Cheng Keung Fung) was the incumbent District Councillor for the Fifth Term Kwun Tong District Council Tsui Ping Constituency (“the Constituency”). His term of office commenced on 1 January 2016 and ended on 31 December 2019. On 24 November 2019, an ordinary election (“the Election”) was held to return the District Councillor for the Constituency for the new term of office commencing on 1 January 2020.

2.The Petitioner and the 1^st Respondent (Mr Hung Chun Hin) were the only two candidates at the Election.  There were 12,930 registered voters in the Constituency.  In the Election, a total of 8,025 valid votes were cast by the registered voters.  Of those 8,025 votes, the Petitioner received 3,822 votes and the 1^st Respondent received 4,203 votes.  The Petitioner lost the Election by 381 votes, as declared by the Returning Officer for the Constituency on 25 November 2019.

3.By this Election Petition lodged on 9 December 2019, the Petitioner seeks to challenge the election of the 1^st Respondent as District Councillor for the Constituency.

THE COMPLAINTS

4.The Petitioner was the Secretary of two bodies or organizations known as (i) The Federation of Public Housing Estates (公屋聯會) (“the Federation”) and (ii) “Positive Synergy” (創建力量).

5.In the Election Petition, the Petitioner complains about two Election Leaflets (“the First Leaflet” and “the Second Leaflet” respectively) distributed by the 1^st Respondent which the Petitioner alleges contained materially false and/or misleading statements about him.

(i)  The First Leaflet

6.On 21 November 2019, the 1^st Respondent printed 6,000 copies of the First Leaflet, which was an A5 sized, double-sided, document.  The First Leaflet was distributed by the 1^st Respondent and his election team from 21 November 2019 to 24 November 2019 (the election day).

7.The Petitioner’s complaint in respect of the First Leaflet, as set out in §§6 to 7 of the Election Petition, is as follows:

“[6]  On one side of the First Leaflet, the 1^st Respondent promoted himself and invited the voters to vote for him. On the other side of the First Leaflet:

(1)  The 1^st Respondent included a photograph of the Petitioner (‘the Photograph’) …

(2)  The 1^st Respondent made the following statements of fact in Chinese:

(a)  It was stated that ‘慎防假獨立,背棄民意保皇黨’ (i.e. ‘Beware of fake independence, pro-government party which acts against the public’s wishes’) (‘the First Leaflet First Statement’);

(b)  On the right-hand corner of the Photograph, it was stated that ‘報稱獨立’(i.e. ‘Claimed to be independent’) (‘the First Leaflet Second Statement’);

(c)  Below the Photograph, it was stated that ‘獨立? 但與中聯辦關係密切的謝偉俊同屬建制組織創建力量’ (i.e. ‘Independent? But he is in the same pro-establishment organisation ‘Positive Synergy’ with Tse Wai Chun Paul, who has close connections with the Liaison Office of the People’s Central Government in HKSAR’) (‘the First Leaflet Third Statement’)

(collectively, ‘the First Leaflet Statements’).

(3)  The First Leaflet Statements, considered with the Photograph, were clear allegations that the Petitioner has been pretending to be an independent candidate with no political affiliations while in fact he was not.

[7]  The First Leaflet First Statement, the First Leaflet Second Statement and the First Leaflet Third Statement, whether considered singly or together, amount to materially false and/or misleading statement of facts about the Petitioner:

(1)  The Petitioner was a candidate having political affiliation with the Federation of Public Housing Estate (‘the Federation’) (‘the Petitioner’s Political Affiliation’). The Petitioner is and was at all material times the Secretary of the Federation;

(2)  The Petitioner’s Political Affiliation was expressly disclosed in (a) the Introduction to Candidates published on, inter alia, the 2019 District Council Election Website; and (b) the voting ballots for the Election;

(3)  The Petitioner’s Political Affiliation was further made clear on the Petitioner’s leaflets, posters, and banners for the Election campaign, with the logo of the Federation appended to them. The Petitioner also appended the logo of ‘Positive Synergy’ (創建力量) on some of the above publications, indicating his affiliation with Positive Synergy. The Petitioner is the Secretary of Positive Synergy;

(4)  As shown on the public website of the Federation, working members of the Federation mainly comprise individuals with pro-establishment(建制) background, including Ms. Starry Lee Wai-King, Chairman of the Democratic Alliance for the Betterment and Progress of Hong Kong; Dr. Priscilla Leung Mei-Fung, Founder of the Business and Professional Alliance for Hong Kong and Chairperson of the Kowloon West New Dynamic; and Mr Wong Kwok-Kin of the Hong Kong Federation of Trade Unions. It is readily apparent that the Federation is an association with pro-establishment background;

(5)  During the entire Election campaign, the Petitioner has never [held] himself out as being an independent candidate with no political affiliations.”

8.The Petitioner contends that by publishing the First Leaflet Statements, the 1^st Respondent mounted a serious attack on his integrity and confused the voter as to his true political affiliation for the purposes of prejudicing the Petitioner’s election and promoting his own election (§8 of the Election Petition).  The Petitioner further contends that in so doing, the 1^st Respondent committed an illegal conduct in contravention of s 26(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“the Ordinance”) (§9 of the Election Petition).

(ii)  The Second Leaflet

9.On 28 October 2019, the 1^st Respondent printed, and thereafter distributed, 7,000 copies of the Second Leaflet, which was an A3 sized, double-sided, document.

10.The Petitioner’s complaint in respect of the Second Leaflet, as set out in §§11 to 15 of the Election Petition, is as follows:

“[11] On one side of the Second Leaflet, the 1^st Respondent informed the public and the voters [of] his alleged work in the Constituency by stating ‘阿軒將翠屏工作向街坊一一匯報’ (i.e. ‘Ah Hin [the 1^st Respondent] reported each of [his] work in Tsui Ping to the neighbourhood’). The 1^st Respondent made the following statements of fact:

(1)  He stated that he had ‘成功爭取路政署重鋪翠屏行人路地磚解決路面不平問題’ (i.e. ‘successfully strived for the Highways Department to re-pave a pathway in Tsui Ping to resolve the issue of uneven bricks’) (‘the Second Leaflet First Statement’); and

(2)  He stated that he had ‘成功爭取秀茂坪紀念公園電梯加建分段出口’ (i.e. ‘successfully strived for the building of an additional exit of the Sau Mau Ping Memorial Park escalator’) (‘the Second Leaflet Second Statement’).

The Second Leaflet First Statement

[12] The Second Leaflet First Statement is materially false and/or misleading because the 1^st Respondent has no, or has no substantive participation in striving for the Highways Department to re-pave the pathway in Tsui Ping to resolve the issue of uneven bricks (‘the Pathway Project’):

(1)  The Pathway Project was implemented as a result of the efforts of the Petitioner and the incumbent District Councillor of the Kwan Tong District Po Lok Constituency, Mr. Cheng King Yeung (鄭景陽) (‘Mr Cheng) and his assistant, Ms. Leung Yik Ting (梁翊婷) (‘Ms. Leung’). Mr. Cheng and Ms. Leung, like the 1^st Respondent, are members of the Democratic Party:

(a)  On 27 February 2019, the Petitioner wrote to the Highways Department to inform them of the un-even bricks issue on the pathway in Tsui Ping and requested the Highways Department to follow up on it;

(b)  On 11 March 2019, upon the arrangement of the Highways Department, the Petitioner, Mr. Cheng and Ms. Leung conducted a site visit of the pathway with representatives from the Highways Department and the contractors. The 1^st Respondent was not present at the site inspection. After the site inspection, in about April to May 2019, the Highways Department repaved the pathway and fixed the uneven bricks issue.

(2)  In the Democratic Party’s leaflet published in about March 2019, it was only mentioned that Mr. Cheng and Ms. Leung participated in the Pathway Project. The 1^st Respondent was not stated to be involved in the Pathway Project.

(3)  In Mr. Cheng and Ms. Leung’s working report for the first quarter of 2019, they only mentioned that they were involved in the Pathway Project. Again, there was no mention of the 1^st Respondent’s participation in the Pathway Project at all.

The Second Leaflet Second Statement

[15] The Second Leaflet Second Statement is materially false and/or misleading because the 1^st Respondent has no, or has no substantive, participation in striving for the building of the additional exit of the Sau Mau Ping Memorial Park escalator (‘the Escalator Exit Project’):

(1)  As early as in 2017 to 2018, the Escalator Exit Project was discussed in the preliminary meetings of the Kwun Tong District Council (預備會議) which the Petitioner and Mr. Cheng attended. The 1^st Respondent did not attend any of these meetings;

(2)  In about 2017, the Petitioner was informed by the Civil Engineering and Development Department that the Legislative Council had approved the funding for the Escalator Exit Project. In about 2018, the Escalator Exit Project commenced, with estimate completion in 2020. In Mr. Cheng’s work report for the year 2017-2018, he also confirmed that the Escalator Exit Project was successfully confirmed in early 2018 (‘終於在2018年初成功落實興建分段出口’). There was no mention at all in the work report of the 1^st Respondent’s involvement in the Escalator Project.

(3)  According to the Second Leaflet, the 1^st Respondent acted as a student in Mr. Cheng and Mr. Wu Chi Wai’s (胡志偉) Councillor Office, and he studied in the Chinese University of Hong Kong from 2017 to 2019.  The 1^st Respondent could not have any, or any substantive involvement in striving for the Escalator Exit Project, which was confirmed in early 2018.”

11.The Petitioner contends that the 1^st Respondent over-stated his contribution to the Constituency in the Second Leaflet for the purpose of promoting his own election (§§13 and 16 of the Election Petitioner).  The Petitioner further contends that in so doing, the 1^st Respondent committed an illegal conduct in contravention of s 26(1) of the Ordinance (§§14 and 17 of the Election Petitioner).

DISCUSSION

(i)  Illegal conduct under s 26(1) of the Ordinance

12.Section 49(1)(a)(ii) of the District Councils Ordinance (Cap 547) provides that an election to return an elected member may be questioned on, inter alia, the ground that the person declared by the Returning Officer to have been elected as an elected member at the election was not duly elected because “corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election”.  Section 49(3) goes on to define “corrupt or illegal conduct” to mean “corrupt or illegal conduct in contravention of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554)”.

13.Part 3 of the Ordinance concerns “Illegal Conduct” at elections, and prescribes various types of conduct as being “illegal”.  In particular, s 26 of the Ordinance concerns “Illegal conduct to publish false or misleading statements about a candidate”, and provides as follows:

“(1)  A person engages in illegal conduct at an election if the person publishes a materially false or misleading statement of fact about a particular candidate or particular candidates for the purpose of promoting or prejudicing the election of the candidate or candidates.

(3)  For the purposes of this section, statements about a candidate or candidates include (but are not limited to) statements concerning the character, qualifications or previous conduct of the candidate or candidates.

(4)  In a prosecution for an offence of having engaged in illegal conduct under subsection (1) or (2), it is a defence to prove that the defendant believed on reasonable grounds that the statement was true at the time when it was made.”

14.It can be seen that four elements have to be established before a person who has published a statement about a particular candidate or particular candidates will be regarded as having engaged in illegal conduct at an election contrary to s 26(1) of the Ordinance, namely:

(1)  the statement must be a statement of fact about the candidate(s);

(2)  the statement must be false or misleading; and

(3)  the statement be “materially” false or misleading; and

(4)  the statement must be published for the purpose of promoting or prejudicing the election of the candidate(s).

15.The burden of proof of these four elements lies on the Petitioner.  Although in an election petition, the standard of proof is the civil standard of balance of probabilities, having regard to the fact that commission of the prohibited conduct constitutes a criminal offence, the person making the allegation is required to prove it by evidence of a commensurate cogency (see Re Ho Chun Yan, Albert (2012) 15 HKCFAR 686, at §25).  At §41 of the judgment in that case, the Appeal Committee of the Court of Final Appeal said that “[t]he 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…”.

16.In respect of the first element, a distinction should be drawn between a statement of fact and a statement of opinion, comment or judgment (Watkins v Woolas [2010] EWHC 2702 (QB) at §74).

17.In respect of the second element (“false or misleading”), a more demanding or stringent approach should be adopted in the determination of the meaning of the relevant statement in contra-distinction to the “loose-thinking” approach of a reasonable reader in the law of defamation, because of (i) the criminal sanction attached to the making of a false or misleading statement contrary to s 26(1) of the Ordinance, and (ii) the public interest in maintaining the integrity of the electoral system.  The court’s task is to determine the natural and ordinary meaning of the statement, not necessarily its literal meaning, which should be ascertained having regard to the occasion of the publication, the person publishing, the person attacked, and the readers intended to be addressed (see Re Ho Chun Yan, Albert, ante, at §41; Yu Chi Shing Paul v Tin Ping Estate Proprietor Concernment Association, HCAL 8/2012 (unreported, 10 December 2012), at §§26 to 29 per Lam JA (as he then was)).

18.As observed by G Lam J in Wong Yun Keung Simon v Lam Cheuk Ting, HCAL 29/2016 (unreported, 30 November 2016), at §§16 and 17:

“[16]  While elections must be conducted ‘fairly, openly and honestly’ 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, not morbid or suspicious of mind, nor avid for scandal.”

19.In respect of the third element (“materially”), it has been said that a statement is “materially” false or misleading if it may have affected how the voters cast their votes; it is not necessary to show that the statement actually contributed to the voters voting in some particular way (see Yu Chi Shing Paul, ante, at §46, per Lam JA).  I should, nevertheless, caution against applying this test literally.  This is because any statement which adversely affects the reputation of a candidate, even if only mildly, has the potential of causing the voters not to vote for that candidate, and thus it may be argued that the statement may have affected how they cast their votes.  In my view, it is important to bear in mind that the statutory test remains whether the relevant statement is “materially” false or misleading.  A judicial exposition of an expression or concept used in a statute should never be used as a complete substitute for that expression or concept.  In view of Lam JA’s acceptance that a more stringent approach should be adopted in the determination of the natural and ordinary meaning of a statement when considering whether a person has acted in contravention of s 26 of the Ordinance, I do not believe that the learned judge intended to lay down a loose test when determining the question of whether a statement is materially false or misleading.  As stated by the Appeal Committee of the Court of Final Appeal in Ho Chun Yan Albert, at §41: “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”.  The more demanding approach applies as much to the determination of whether a statement is “materially” false or misleading, as it does to the determination of the natural and ordinary meaning of that statement and whether that statement is “false or misleading”.

20.Even where all four elements are established, it is still a defence for the defendant charged with having committed an offence contrary to s 26(1) of the Ordinance to prove that he believed on reasonable grounds that the statement was true when it was made (s 26(4)).

21.This defence of reasonable belief is equally available in the context of an election petition (see Yu Chi Shing Paul, ante, at §54; Ho Yin Fai v Wu Chi Kin, HCAL 28/2016 (unreported, 4 October 2017), at §82).  For the purpose of this defence, what the defendant has to show is a reasonable belief in the truth of the statement, not the truth of the meaning of the statement as determined by the court.  The single meaning rule in the law of defamation does not apply in the present context.  In this regard, the court should bear in mind that “[i]t is not uncommon that different people may ascribe different meanings to the same statement and each may act reasonably in coming to his view on the meaning” (see Yu Chi Shing Paul, ante, at §§55-56).  The defence is established if the defendant genuinely believed the statement, in the meaning as understood by him, to be true, provided that such belief was based on reasonable grounds.  In Leung Wing Hung v Yuen Kwai Choi, [2009] 1 HKLRD 515, the issue was whether an incumbent District Councillor, who lost in the relevant election, had made a false claim or representation that he was a “full time councillor” (全職議員).  The following observations by Cheung J (as he then was) are, I consider, equally apposite when considering the defence of reasonable belief under s 26(4) of the Ordinance:

“[46]  But I would go further. As mentioned, terms like ‘全職議員’ and ‘全職’ are not legally defined or defined generally. Even assuming that I have been wrong with my general understanding of those terms in Hong Kong and it does not represent the only proper understanding of the terms, I will still say that put at the lowest, the terms are capable of different understanding by different people. In other words, reasonable people do differ in their understanding of those terms. Put another way, there are people like the respondent who think that having a pay element would immediately disqualify one from using those terms. There are also others like the petitioner, and some of his fellow candidates in the 2007 election, who think otherwise. The respondent’s understanding of those terms, though (ex hypothesi) a proper and reasonable understanding, is not the only proper and reasonable one. And that, in my view, is equally fatal to the respondent’s case even if I am wrong with my primary conclusion.

[47]  This is because in those circumstances, when, as I have found to be the case, the petitioner genuinely (and reasonably) believed in his own definition of the term ‘全職議員’, he cannot possibly be said to have concealed his occupation, obtained others’ trust and confidence by deception, or been guilty of dishonest conduct.”

(ii)  The First Leaflet

22.In respect of the First Leaflet, the Petitioner has, in the Election Petition, singled out 3 statements therein which he contends are false or misleading, and the 1^st Respondent has, in his affirmation, sought to justify them separately.  In my view, it is an incorrect approach to read the 3 statements separately.  The document ought to be read as a whole and in its proper context in order to determine the natural and ordinary meaning of those statements to an ordinary voter in the Constituency.

23.Reading the First Leaflet as a whole and in its proper context (namely, an election flyer or pamphlet distributed to the voters in an election which took place in a highly polarized society), I consider that the First Leaflet Statements, in their natural and ordinary meaning, mean that:

(1)  the Petitioner claimed himself to be “independent”;

(2)  the Petitioner’s claim of independence was false having regard to the fact that both he and Tse Wai Chun (who had a close relationship with the Liaison Office of the Central People’s Government in Hong Kong) belonged to Positive Synergy;

(3)  Positive Synergy, a “pro-government” or “pro-establishment” body or organization, did not or could not represent the voters as shown by Tse Wai Chun’s voting records in the Legislative Council which were repeatedly against the views of the public;

(4)  the voters should beware of the Petitioner who was not truly “independent”, and should not vote for him in view of his affiliation with Positive Synergy.

24.On behalf of the Applicant, Ms Sabrina Ho complains that the First Leaflet Statements conveyed a clear meaning to the voters that “the Petitioner was claiming or reporting to be an independent candidate with no political affiliations (報稱獨立) but in fact he was not”, and they further “confused the voters as to the true political affiliation of the Petitioner”[1].  She argues that:

(1)  The First Leaflet Statements are false or misleading insofar as they suggested that the Petitioner had concealed his political affiliations with the Federation or Positive Synergy, whereas the Petitioner had in fact reported his political affiliation with the Federation in his Electoral Message and the Ballot Paper, and had also been open about his association with the Federation and Positive Synergy - he appended the logo of the Federation on all his election advertisements and included the logo of Positive Synergy in some of his election advertisements.

(2)  The false or misleading First Leaflet Statements are material to the Election, as the allegation of “dishonesty” against the Petitioner may have affected how the voters cast their votes.

(3)  By publishing the false or misleading First Leaflet Statements, the 1^st Respondent’s clear intention or purpose was to prejudice the election of the Petitioner[2].

25.Before I consider whether the four elements of the charge of publishing a false or misleading statement contrary to s 26(1) of the Ordinance are established in the present case, the following points should be noted.

26.First, Ms Ho does not contend that the Petitioner was independent.  On the contrary, she says that the Petitioner openly reported or disclosed his political affiliation or association with the Federation and Positive Synergy[3].

27.Second, Ms Ho does not contend that the Federation or Positive Synergy should not be described or regarded as “pro-government” or “pro-establishment” organizations:

(1)  In respect of the Federation, Ms Ho says that “there should not be any doubt in the public’s mind, that the Federation is an organization with pro-establishment background”[4].

(2)  In respect of Positive Synergy, Ms Ho submits that whether it is a pro-establishment organization is beside the point, because the Petitioner’s complaint is that the 1^st Respondent made a false or misleading statement that the Petitioner did not disclose his political affiliation (be it a pro-establishment affiliation or otherwise) in the election campaign[5].

28.Third, there is much debate about the meaning of “獨立” (independent or independence) as used in the First Leaflet.

(1)  Mr Jeffrey Tam (for the 1^st Respondent) argues that, in the context of describing an individual politician, the word “independent” can have two meanings: “independent” may mean a politician who (i) is not affiliated with any political party, or (ii) is not affiliated with any organization, whether that organization is a political party or not.  Mr Tam further argues that that first meaning is the true meaning of the word “independent” as would be understood by the readers of the First Leaflet[6].

(2)  On the other hand, Ms Ho argues that, upon its proper interpretation, the words “報稱獨立” mean the Petitioner “claimed and reported in the official documents in the Election (eg the Electoral Message, the Ballot Paper and his election advertisements) that he was an independent candidate with no political affiliations”[7].

29.A statement that a candidate in an election is “獨立” (independent) may mean different things depending on the context.  It may mean, amongst others, that the candidate:

(1)  is not affiliated with any political party; or

(2)  is not running on a political party’s ticket in the election; or

(3)  is not supported by any political party in the election; or

(4)  is not affiliated with any body or organization, or political body or organization, irrespective of whether it is strictly a political party or purports to be one; or

(5)  is not affiliated with any “prescribed body” (訂明團體)[8] as that term is defined in s 2(1) of the Particulars Relating to Candidates on Ballot Papers (Legislative Council and District Councils) Regulation, Cap 541M, ie a “prescribed political body” (訂明政治性團體)[9] or a “prescribed non-political body” (訂明非政治性團體)[10].

30.I should mention that the expression “political party” does not a have generally defined legal meaning.

(1)  There is no definition of that expression in the Interpretation and General Clauses Ordinance, Cap 1.

(2)  The expression “political party (政黨)” is given a circular definition in s 31 of the Chief Executive Election Ordinance, Cap 569, to mean (a) a political body or organization (whether operating in Hong Kong or elsewhere) which purports to be a political party; or (b) a body or organization the principal function or main object of which is to promote or prepare a candidate for election as a member of the Legislative Council or any District Council.

(3)  The expression “political body” (政治性團體) is defined in both the Societies Ordinance, Cap 151, and the Electoral Affairs Commissioner Ordinance, Cap 541, to mean (i) a political party or an organization that purports to be a political party, or (ii) an organization whose principal function or main object is to promote or prepare a candidate for an election.

(4)  The expression “prescribed political body” (訂明政治性團體) is defined in the Particulars Relating to Candidates on Ballot Papers (Legislative Council and District Councils) Regulation, Cap 541M, to mean a body or organization operating in Hong Kong (a) that is a political party; (b) that purports to be a political party; or (c) the principal function or main object of which is to promote or prepare a candidate for election as a member.

The above definitions are, however, for the purposes of those specific Ordinances only.

31.In the First Leaflet, the words “獨立” (independent or independence) appeared in 3 places:

(1)  “慎防假獨立，背棄民意保皇黨”;

(2)  “報稱獨立”; and

(3)  “獨立？但與中聯辦關係密切的謝偉俊同屬建制組織創建力量”.

32.In my view, the words “獨立” (independent or independence) as used in the First Leaflet meant or referred to someone who was not affiliated with any political body or organization, irrespective of whether such body or organization was strictly a political party or not.  In any event, for the purpose of this case, it is not necessary to determine the precise meaning of the words “獨立” as used in the Leaflet because the Petitioner’s complaint is not that the 1^st Respondent falsely alleged that he was not independent.  Indeed, the Petitioner says that he had publicly declared that he was not independent, as demonstrated by his disclosure of his association with the Federation and/or Positive Synergy.  The Petitioner’s complaint is that the 1^st Respondent falsely alleged that he (the Petitioner) had made a false claim of independence.

33.Fourth, the clear message that was conveyed, or intended to be conveyed, by the First Leaflet was that although the Petitioner had claimed himself to be independent, in fact he was not independent but was affiliated with Positive Synergy, a pro-establishment (or pro-government) body or organization.  In other words, the First Leaflet Statements alleged that that Petitioner had made a false claim of independence.

34.In relation to the four elements of the charge of publishing a false or misleading statement contrary to s 26(1) of the Ordinance, I consider that the first, second and fourth elements are clearly satisfied in the present case:

(1)  First element (statement of fact): the statement that the Petitioner had made a claim that he was independent is a statement of fact.

(2)  Second element (false or misleading): the allegation that the Petitioner had made a claim that he was independent is itself false or misleading, because the Petitioner had never made such a claim.

(3)  Fourth element (purpose): the 1^st Respondent published the First Leaflet Statements for the purpose of prejudicing the election of the Petitioner.

35.Whether the third element (“materially”) is satisfied is less clear.  This is because although the First Leaflet alleged that the Petitioner had made a false claim of independence, it seems clear that what the 1^st Respondent was saying to the voters was that they should not vote for the Petitioner, not because he had a made a false claim, but because he was not independent in view of his affiliation with Positive Synergy, a pro-establishment or pro-government body or organization.  However, the court cannot assume that the voters cast their votes based solely on the political affiliation of a candidate and paid no regard whatsoever to the character of the candidate.  The allegation that a candidate had publicly made a false claim of independence is a serious allegation.  Overall, even adopting a more stringent or demanding approach, I consider that the third element of materiality is satisfied in the present case.

36.The defence under 26(4) cannot avail the 1^st Respondent, because there was no reasonable basis on which the 1^st Respondent could have formed the belief that the Petitioner had made a claim that he was independent.

37.In all, the Petitioner’s claim that the 1^st Respondent published a false or misleading statement about him contrary to s 26(1) in relation to the First Leaflet Statements is established.

(iii)   The Second Leaflet

38.I can deal with the Second Leaflet briefly.  It is not in dispute that Mr Cheng King Yeung was materially involved in, and his work was instrumental to the successful implementation of, both the Pathway Project and Escalator Exit Project.  There is also evidence that the 1^st Respondent worked as a part-time assistant to Mr Cheng King Yeung between September 2016 and September 2019.  According to the 1^st Respondent, he assisted Mr Cheng King Yeung, among other things, to draft a letter to the Highway Departments in February 2019 and another letter to the Civil Engineering and Development Department in September 2016 to pursue the two projects.  None of the matters relied upon by the Petitioner in §12(1)(b), (2) and (3) and §15(1), (2) and (3) of the Election Petition is inconsistent with the 1^st Respondent’s evidence that he did, as a matter of fact, assist Mr Cheng King Yeung to pursue the two projects.

39.While the work done by the 1^st Respondent may not be very substantial, and it may be somewhat exaggerating for him to claim that he had successfully strived for (成功爭取) the two projects, the court ought to recognize that (i) it is not uncommon for candidates standing in an election to boast his past achievements with some degree of exaggeration, and (ii) some people are by nature more measured, reserved or conservative when talking about their own achievements, while some are more pompous or vain.  The line between (i) permissible exaggeration of one’s previous achievements, and (ii) false or misleading claims “in the cut and thrust of election politics” (to borrow Mr Justice G Lam’s phrase) is a fine one and cannot be drawn precisely.  Whether a candidate has overstepped the line in any given case can only be determined upon a consideration of the totality of the relevant context, facts and circumstances of the case.  Bearing in mind the applicable standard of proof referred to in §15 above, the court is not satisfied that the two statements in the Second Leaflet complained of by the Petitioner were false or misleading.  Even if they were, in relation to the defence of belief on reasonable grounds under s 26(4) of the Ordinance, the question is not whether the court itself considers the relevant statement to be true having regard to the materials before it.  The question is whether the person who made the statement believed on reasonable grounds that the statement was true at the time when it was made.  To answer this question, the court should seek to determine the subjective belief of the maker of the statement and the ground(s) on which such belief was formed.  If the court finds that the maker of the statement did believe, subjectively, that the statement was true at the time when it was made, the court should go on to consider whether the ground(s) on which the maker of the statement formed that belief was/were reasonable one(s).  In the present case, the court is prepared to find that the 1^st Respondent genuinely believed that he had done sufficient work in relation to the two projects such that he could properly claim to have “successfully strived” for them, and there existed reasonable grounds on which the 1^st Respondent formed the belief that the two statements were true at the time when they were made.

40.In all, the Petitioner’s complaints in respect of the Second Leaflet are rejected.

DISPOSITION

41.The court allows the Election Petition, and declares that (i) the 1^st Respondent was not duly elected for the Kwun Tong District Council Tsui Ping Constituency as stated in the Notice of Result of Election published in the Gazette on 24 November 2019, and (ii) the Petitioner was also not duly elected in his place.  The court further orders the 1^st Respondent to pay the Petitioner’s costs of these proceedings, to be taxed if not agreed.

Ms Sabrina Ho, instructed by T C Foo & Co, for the Petitioner

Mr Jeffrey Tam and Mr Albert Wan, instructed by Ho Tse Wai & Partners, for the 1^st Respondent

Department of Justice for the 2^nd Respondent, attendance was excused