Koo Yeung Pong v. Chan Kim Kam
Read the full judgment text of HCAL 270/2020 on BabelCite. This High Court CFI judgment was delivered on 11 February 2021.
1. The Petitioner (Mr Koo Yeung Pong) was the incumbent Fifth Term District Councillor for the Tsuen Wan District Council Clague Garden 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.
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HCAL 270/2020 [2021] HKCFI 344 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 270 OF 2020 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ INTRODUCTION 1.The Petitioner (Mr Koo Yeung Pong) was the incumbent Fifth Term District Councillor for the Tsuen Wan District Council Clague Garden 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 Respondent (Ms Chan Kim Kam) were the only two candidates at the Election. There were 7,959 registered voters in the Constituency. In the Election, a total of 5,527 valid votes were cast by the registered voters. Of those 5,527 votes, the Petitioner received 2,730 votes and the Respondent received 2,797 votes. The Petitioner lost the Election by 67 votes, as declared by the Returning Officer for the Constituency on 25 November 2019. 3.By this Election Petition lodged on 24 January 2020, the Petitioner seeks to challenge the election of the Respondent as District Councillor for the Constituency. BASIC FACTS 4.The Petitioner was (and is) a Central Committee member and the Chairman of the Tsuen Wan Branch of Democratic Alliance for the Betterment and Progress of Hong Kong (“DAB”), which the Petitioner says was at all material times and still is a “pro-establishment party”[1]. Pausing here, I should mention that the expression “pro-establishment” is not a term of art and does not have a defined legal meaning. In ordinary parlance, it refers to, I believe, persons or parties who generally support the policies of the Central People’s Government towards Hong Kong and/or the Government of the HKSAR. I also note that the parties have seemingly used the expressions “pro-establishment” and “pro-government” interchangeably. For the purpose of this judgment, I shall treat the two expressions as having the same meaning. 5.In the Election Petition, the Petitioner complains that the Respondent was guilty of illegal conduct at the Election by making and/or publishing before or during the Election materially misleading statements of facts about him in two Election Leaflets (“Leaflet 1” and “Leaflet 2” respectively) for the purpose of promotion of the election of the Respondent and/or prejudicing the election of the Petitioner contrary to s 26(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“the Ordinance”). True copies of Leaflet 1 and Leaflet 2 are appended to this judgment as Annex 1 and Annex 2 respectively. 6.The Petitioner complains, in particular, about the following statements in Leaflet 1 and Leaflet 2:
7.The Petitioner’s complaints in respect of the aforesaid statements in Leaflet 1 and Leaflet 2 are particularised in §1(7) of the Election Petition, as follows:
SECTION 26(1) OF THE ORDINANCE 8.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)”. 9.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:
10.In this court’s recent judgment in Cheng Keung Fung v Hung Chun Hin [2021] HKCFI 253 handed down on 2 February 2021, the court set out some relevant principles in relation to the four elements of the offence of publishing a false or misleading statement about a candidate contrary to s 26(1) of the Ordinance and their application in the context of an election petition. I shall not repeat what was said at §§14-21 of that judgment, which should be treated as incorporated as part of this judgment. 11.I would, however, emphasise the importance of not adopting the “loose-thinking” approach of a reasonable reader in the law of defamation when determining the meaning of a statement complained of as being false or misleading under s 26(1) of the Ordinance. In Yu Chi Shing Paul v Tin Ping Estate Proprietor Concernment Association, HCAL 8/2012 (unreported, 10 December 2012), at §§27 to 29, Lam JA (as he then was) stated as follows -
12.Further, as observed by G Lam J in Wong Yun Keung Simon v Lam Cheuk Ting, HCAL 29/2016 (unreported, 30 November 2016), at §§16, 17 and 25:
13.As will be seen below, the application a more stringent or demanding approach in the determination of the meaning of a statement complained of as being false or misleading under s 26(1) of the Ordinance is of particular relevance to the present case. DISCUSSION 14.As mentioned in §7 above, the Petitioner advances five grounds of complaint in respect of Leaflet 1 and Leaflet 2, which I shall now deal with. The first ground of complaint: exaggeration of the amount of funds allocated for festive lightings and other celebration activities 15.In Leaflet 1, it was stated that in each term of the Tsuen Wan District Council, it allocated funding of about $11.20 million for subsidizing festive lightings and other activities likes National Day celebration (地區發展上, 區議會每屆撥款接近1,120萬元用作資助節日燈飾及國慶等活動). The Petitioner complains that the figure of $11.20 million was an exaggeration, because the total amount of funds allocated by the Tsuen Wan District Council for the said purposes during the period from 2016 to 2019 (ie the Fifth Term District Council) was only about $8.481 million, made up of:
16.On the other hand, the Respondent maintains that the total amount was about $11.27 million, full particulars of which are set out in §§11-17 of the Respondent’s 1st Affidavit filed on 7 August 2020 which I do not propose to repeat in this judgment. The difference between the Petitioner’s figure and the Respondent’s figure is due to the following:
17.In my view, the Petitioner’s approach is wrong because in Leaflet 1, it was stated that funding of about $11.20 million was allocated by the Tsuen Wan District Council for festival lightings and other activities like National Day celebration (接近1,120萬元用作資助節日燈飾及國慶等活動). There is no reason for counting only funds allocated for National Day celebration activities. The statement complained of by the Petitioner (區議會每屆撥款接近1,120萬元用作資助節日燈飾及國慶等活動) is not false or misleading. Further, I consider that the Respondent has a good defence of belief on reasonable grounds that the statement was true at the time when it was made under s 26(4) of the Ordinance. 18.In passing, I should mention that the Petitioner has raised the point, at §25 of his 1st Affirmation, that the figures of $7.322 million and $1.159 million that he referred to (see §15 above) were amounts “allocated” by the Tsuen Wan District Council, and “the actual spending could not be higher than the allocated sum”. This point is immaterial because there is no evidence that the amounts allocated were not actually spent or used, or that there was a significant difference between the amounts allocated and the amount actually spent or used (which would be relevant to the issue of “materiality”). In view of the fact that the Petitioner was the incumbent District Councillor, he would have been in a position to give evidence on this matter if it has any substance. The second ground of complaint: allegation that $18 million was allocated to pro-establishment district organizations for hosting “bread and circuses” activities 19.The Petitioner complains that the following statement in Leaflet 1, namely, “超過1,800萬元撥款幾乎由保皇黨派地區社團包攬, 舉辦蛇齋餅粽活動”, is false or misleading on the basis that “neither the Petitioner nor his political affiliation had ever received any funding or donations from Tsuen Wan District Council for holding any bread and circuses, or any food or beverages in any activities hosted by the Petitioner himself or Petitioner’s political affiliation” (see §1(7)(b) of the Election Petition). In his 1st Affirmation, the Petitioner said that during his term as District Councillor for the Constituency, the Tsuen Wan District Council never allocated any funding for “bread and circuses” events, or for “food or beverages in any activity hosted by the DAB”[2]. Even if what the Petitioner alleges is true, it does not follow that the statement complained of is false or misleading, because (i) the statement only stated that $18 million was given to pro-government organizations in the District (保皇黨派地區社團), not just DAB; and (ii) there is no suggestion, or evidence, that the Petitioner was affiliated with all pro-government organizations in the District. 20.The Respondent has explained how she came up with the figure of $18 million in §§18-25 of her 1st Affidavit, and provided a breakdown of the figures in a table exhibited as “CKK-8”[3] to her 1st Affidavit, which I do not propose to set out in this judgment. 21.The Petitioner challenges the Respondent’s explanation on (i) whether the activities identified and relied upon by the Respondent should be regarded as “bread and circuses” activities, pointing out that according to the guidelines issued by the Social Services and Community and Information Committee of the Tsuen Wan District Council for vetting funding applications submitted by local organizations, expenses on meals (except for volunteers) would not be subsidized (“additional ground (i)”)[4], and (ii) whether the organizations which received funding from the Tsuen Wan District Council referred to by the Respondent should be regarded as “pro-government” organizations (“additional ground (ii)”)[5]. In my view, the Petitioner is not entitled to rely on additional grounds (i) and (ii), but is restricted to the complaints as pleaded in the Election Petition (in particular §1(7)(b) thereof in relation to this ground). If he had wished to allege that the statement “超過1,800萬元撥款幾乎由保皇黨派地區社團包攬, 舉辦蛇齋餅粽活動” was false or misleading on these additional grounds, he ought to have applied to amend the Election Petition, which he did not. I would not therefore allow the Petitioner to rely on additional grounds (i) and (ii) to prove that the aforesaid statement is false or misleading. 22.For the sake of completeness, I shall explain why I do not, in any event, accept the Petitioner’s arguments based on additional grounds (i) and (ii). 23.The crux of additional ground (i) concerns the meaning that should be given to the expression “蛇齋餅粽”. It is obvious that the words, which may be translated as “snake, vegetable, cake and glutinous rice dumpling”, should be given their strict literal meaning. The Petitioner argues that the expression refers only to activities providing free or subsidized meals, or food and beverages, while the Respondent says that the expression “蛇齋餅粽” is a commonly used term to describe “entertainment, recreational activities and community services … which is not confined to meals/food only”. The Respondent’s understanding of the meaning of the expression “蛇齋餅粽” is supported by the writings of two political columnists or commentators published in 2014 and 2018[6]. As a matter of colloquial usage, I consider the Petitioner’s view of the meaning of the expression “蛇齋餅粽” to be too narrow. For example, a free or subsidized local sightseeing tour, or admission to a performance in a theatre, organized by a political or community organization would generally be regarded as an activity falling within the description “蛇齋餅粽” even if it does not include the provision of food or beverages. The essence of “蛇齋餅粽” activities lies, in my view, in the provision of some benefit or sweetener, whether in the form of food/beverages, entertainment, services, or material items. The Respondent’s understanding of the meaning of the expression “蛇齋餅粽” is, I consider, a reasonable one. 24.The issue raised under additional ground (ii) concerns the criteria for determining whether a community organization which received funding from the Tsuen Wan District Council should be classified as a pro-establishment organization. The Respondent regards a community organization as a pro-establishment organization if:
The Respondent has prepared a table, exhibited as “CKK-7”[8] to her 1st Affidavit, setting out the names of the relevant community organizations, as well as how various persons (whom the Respondent says belong to the pro-establishment camp) were affiliated to those organizations. She has also prepared another table, exhibited as “CKK-8” to her 1st Affidavit, setting out the amounts of approved funding by the Tsuen Wan District Council to those organizations for holding what she considers to be “蛇齋餅粽” activities during the period from 2016-2019. 25.The Petitioner criticises the Respondent’s statement at §22(2) of her 1st Affidavit where she explains why, in the situations mentioned in §24(1) or (2) above, she would consider the relevant organizations to be “operated by the pro-establishment camp”[9]. While I can see that it may not be correct to regard an organization as being “operated” by the pro-establishment camp merely because a person belonging to pro-establishment camp has declared an interest, or taken up an important position, in the organization, the relevant question for the present purpose is whether the organization may reasonably be regarded as a pro-establishment organization. It seems to me that the Petitioner’s basic position that the organizations identified in “CKK-7” were pro-establishment organizations is a reasonable one. 26.The Petitioner has also singled out 3 particular organizations referred to by the Respondent as having received funding from the Tsuen Wan District Council for holding “蛇齋餅粽” activities and argues why their inclusion by the Respondent is incorrect[10]. It is not necessary to determine whether the Petitioner’s criticism is strictly justified in these 3 instances, because to make out the charge of publishing a false or misleading statement about a candidate contrary to s 26(1) of the Ordinance, the statement in question must be “materially” false or misleading. The mere fact that out of the numerous items listed in the table (exhibit “CKK-8”), a few of them should have been excluded would not, in my view, make the statement “超過1,800萬元撥款幾乎由保皇黨派地區社團包攬, 舉辦蛇齋餅粽活動” materially false or misleading. 27.In short, the Petitioner has failed to prove that the following statements, namely:
are false or misleading. Further, even if the Petitioner is correct in his views on the meaning of the expression “蛇齋餅粽” or that some of the organizations referred to by the Respondent should not have been classified as “pro-establishment” organizations, I am satisfied, based on the explanations given by the Respondent in her 1st Affidavit, that she believed on reasonable grounds that the aforesaid statements were true at the time when they were made for the purpose of the defence under s 26(4) of the Ordinance. The third ground of complaint: allegation that only $2.4 million was given to “區內社福機構” (social welfare organizations in the District) to hold activities 28.This ground concerns the following statements in Leaflet 1 and Leaflet 2, namely:
29.The Respondent has given an explanation of how she came up with the figure of $2.4 million in §§27-37 of her 1st Affidavit, and provided a breakdown of that figure in a table produced as exhibit “CKK-16” to her 1st Affidavit[11]. On the other hand, the Petitioner says that during the period from 2016 to 2019, the funds made available by the Tsuen Wan District Council to “社福機構” (social welfare organizations) should be the total of about (i) HK$4.6 million in respect of 50 activities organized by non-governmental organizations whose names appeared on the Social Welfare Department’s list of subvented NGOs in the Tsuen Wan District (the Subvented NGOs”), (ii) $1.65 million in respect of 78 activities co-organized with some other social welfare organizations, (iii) $3.9 million in respect of 72 social welfare activities co-organized with some local organizations, and (iv) $0.2 million in respect of 25 social welfare activities organized by some local organizations[12]. 30.The difference between the parties is mainly due to the fact that the Respondent only took into account funds allocated by the Tsuen Wan District Council to the Subvented NGOs in respect of activities confined to (or exclusively for) the Tsuen Wan District[13]. According to the Respondent, the items on her table (“CKK-16”) already include those relied upon by the Petitioner and referred to in §29(ii) above ($1.65 million), except those activities which the Respondent considers were not confined to (or exclusively for) the Tsuen Wan District[14]. 31.The expression “區內社福機構” is not a term of art, and its meaning in the context of Leaflet 1 and Leaflet 2 may be open to debate. Nevertheless, the Respondent’s understanding of the meaning of that expression and the way that she came up with the figure of $2.4 million are, in my view, reasonable (or at least not unreasonable). I find that the Respondent believed on reasonable grounds that the statements referred to in §28 above were true at the time when they were made for the purpose of the defence under s 26(4) of the Ordinance 32.In passing, I should mention that there may be a few items in respect of which it may be possible to argue should have been included by the Respondent, eg an event known as “Rice Dumplings for the Community” in 2017, 2018 and 2019 referred to in §32 of the Respondent’s 1st Affidavit and §62 of the Petitioner’s 2nd Affirmation. However, I do not believe that the omission of these few items would make the relevant statements “materially” false or misleading. 33.Generally, in respect of the statements complained of relevant to the first, second and third grounds of complaint, I consider that they embodied the Respondent’s criticism that too much of the funds allocated by the Tsuen Wan District Council went towards festive, celebration and “蛇齋餅粽” activities, while not enough was spent on social welfare services within the Tsuen Wan District. The Respondent’s criticism was directed at the allocation of public funds by Tsuen Wan District Council as a whole, and not against any particular individual member of the District Council. In this regard, it may be noted that there were around 20 members of the Tsuen Wan District Council during the period from 2016 to 2019, and the Petitioner was only 1 of the 20 members[15]. In my view, the statements complained of which give rise to these three grounds of complaint are not statements of fact “about” the Petitioner for the purpose of s 26(1) of the Ordinance[16]. The fourth ground of complaint: allegation that the Petitioner was a lazy, negligent or irresponsible District Councillor 34.If this were a defamation case, I can see that the following statements in Leaflet 1, namely, “讓懶惰不堪, 失職失責的人離開議席” and “讓不敢為民發聲的政棍遠離社區”, may loosely be read as making an allegation that the Petitioner was a lazy, negligent or irresponsible District Councillor. However, it is well established that the court ought to adopt a more stringent or demanding approach in the determination of the objective meaning of a statement complained of as being false or misleading under s 26(1) of the Ordinance. In my view, a reasonable way of reading the aforesaid statements would be to regard them as general comments or statements of opinion by the Respondent that District Councillors should not be lazy, negligent or be afraid to speak out on behalf of the public, instead of specific statements targeting the Petitioner. This view of the matter is reinforced by the fact that in Leaflet 1, the statement “讓懶惰不堪, 失職失責的人離開議席” was immediately preceded by “由革新區議會開始”. While it is correct that the name of the Petitioner was referred to in an earlier part of Leaflet 1, that reference was in the context of the Respondent’s criticism of the Petitioner for being one of those who had proposed Mrs Carrie Lam to be the Chief Executive of the HKSAR (in respect of which no complaint has been raised by the Petitioner). The statements complained of, as properly understood, are not false or misleading. 35.In short, I consider that: (i) the statements complained of are not statements of fact, (ii) they are not false or misleading, and (iii) they are general statements, and not statements about the Petitioner. The fifth ground of complaint: allegation that the Petitioner and/or part(ies) with which the Petitioner was politically affiliated had misappropriated or intended to misappropriate public funds, or treated public funds as his or their own private property 36.The following statements in Leaflet 1 and Leaflet 2, namely, “區議會每屆3,200萬元「社區參與計劃」與6,000萬元小型工程撥款並非建制派私產, 而是來自人民的公帑”[17] and “區議會每年上億的撥款, 可以用得更有意義, 人民的公帑應用於社區建設之上, 而非成為建制派的私產”, are not statements of fact, but are comments or statements of opinion about which there could be no quarrel. 37.Further, there is no allegation in Leaflet 1 and Leaflet 2 that the Petitioner and/or part(ies) with which the Petitioner was politically affiliated had misappropriated or intended to misappropriate public funds, or treated public funds as his or their own private property. 38.In short, I consider that: (i) the statements complained of are not statements of fact, (ii) they are not false or misleading, and (iii) they are general statements, and not statements about the Petitioner. 39.In conclusion, the Petitioner’s complaints in respect of Leaflet 1 and Leaflet 2 are rejected. DISPOSITION 40.The Election Petition is dismissed. The court determines that the Respondent was duly elected at the Election. The Court further orders the Petitioner to pay the Respondent’s costs, to be taxed if not agreed, with certificate for 2 counsel. I do not consider that there is sufficient basis to order the Respondent’s costs to be taxed on an indemnity basis, as sought by the Respondent. The Respondent’s costs shall therefore be taxed on a party and party basis.
Mr Edward U O Ng and Mr Stony S W Chan, instructed by Hoosenally & Neo, for the Petitioner Mr Jeffrey Tam and Ms Abigail Liu, instructed by L & W Lawyers, for the Respondent
[1] See §19 of the Petitioner’s 1st Affirmation filed on 24 January 2020. [2] See §27 of the Petitioner’s 1st Affirmation. [3] A revised table which corrected some typographical errors and included bundle references was handed up by Mr Tam at the hearing on 17 November 2020 to replace “CKK-8”. The Respondent formally produced the revised table as exhibit “CKK-8A” to her 2nd Affidavit dated 27 November 2020. [4] See §§27-33 of the Petitioner’s 1st Affirmation, and §§30-38 of the Petitioner’s 2nd Affirmation. [5] See §§39-41 of the Petitioner’s 2nd Affirmation. [6] See §19 of the Respondent’s 1st Affidavit. [7] See §22(2) of the Respondent’s 1st Affidavit, and the table exhibited as “CKK-7A” to the Respondent’s 2nd Affidavit. [8] A revised table which corrected some typographical errors and included bundle references was handed up by Mr Tam at the hearing on 17 November 2020 to replace “CKK-7”. The Respondent formally produced the revised table as exhibit “CKK-7A” to her 2nd Affidavit dated 27 November 2020. [9] See §§39-40 of the Petitioner’s 2nd Affirmation. [10] See §§46-48 of the Petitioner’s 2nd Affirmation. [11] A revised table which corrected some typographical errors and included bundle references was handed up by Mr Tam at the hearing on 17 November 2020 to replace “CKK-16”. The Respondent formally produced the revised table as exhibit “CKK-16A” to her 2nd Affidavit dated 27 November 2020. [12] See §§34-37 of the Petitioner’s 1st Affirmation. [13] See §§28-31 of the Respondent’s 1st Affidavit. [14] See §38 of the Respondent’s 1st Affidavit. [15] See the Attendance Records of Tsuen Wan District Council Members for the period from 2016-2019 produced as exhibit “KYP-12” to the 1st Affirmation of the Petitioner. [16] See the non-exhaustive definition in s 26(3) of the Ordinance. [17] There is no complaint about the part of the statement that “區議會每屆3,200萬元「社區參與計劃」與6,000萬元小型工程撥款”. |
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