Lam Pok (Jimmy) v. Lee Hin Long (Timothy Lee)and Another
Read the full judgment text of HCAL 247/2020 on BabelCite. This High Court CFI judgment was delivered on 25 March 2021.
1. These proceedings arose from the 2019 District Council Ordinary Election for the Kowloon City District Council To Kwa Wan South Constituency (the “ Constituency ”) held on 24 November 2019 (the “ Election ”). Lee Hin Long (“ R1 ”) was the elected candidate. Lam Pok (the “ Petitioner ”) was one of the unsuccessful candidates.
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HCAL 247/2020 [2021] HKCFI 779 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 247 OF 2020 ______________
_____________ BETWEEN
______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 1183 OF 2020 ______________
_____________ BETWEEN
______________ (Heard together) Before: Hon K Yeung J in Court Date of Hearing: 18 March 2021 Date of Judgment: 25 March 2021 ______________ JUDGMENT ______________ A. Introduction 1.These proceedings arose from the 2019 District Council Ordinary Election for the Kowloon City District Council To Kwa Wan South Constituency (the “Constituency”) held on 24 November 2019 (the “Election”). Lee Hin Long (“R1”) was the elected candidate. Lam Pok (the “Petitioner”) was one of the unsuccessful candidates. 2.By an election petition dated 22 January 2020 (“the Election Petition”) taken out under HCAL 247/2020 and pursuant to section 49(1)(a)(ii) of the District Councils Ordinance (Cap 547)(“DCO”), the Petitioner challenges the election of R1. His case is that 5 election advertisements (the “5 EAs”) published by R1 in the course of the Election included false claim of support, so that R1 had engaged in illegal conduct contrary to section 27(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) (“ECICO”). 3.Separately, by Originating Summons dated 10 August 2020 taken out under HCMP 1183/2020 (the “Originating Summons”), R1 seeks relief from this Court in relation to his publication of the 5 EAs. 4.This Court has subsequently granted the Petitioner leave to intervene in HCMP 1183/2020, and has directed that the two actions be heard together. 5.The Returning Officer, named as the 2nd Respondent in the Election Petition (“R2”), adopts a neutral stance. 6.Mr Randy Shek appeared for R1. Ms Sabrina Ho and Mr Jack Chan appeared for the Petitioner. Ms Vivian Kao of the Department of Justice appeared for the Secretary for Justice in HCMP 1183/2020. The attendance of R2 has been excused. B. The Election 7.The Election was held on 24 November 2019. There were 3 candidates. The Petitioner, R1 and Ms Wong Yi Ting were respectively Candidates No. 1, 2 and 3. Of the 3,809 valid votes, the Petitioner received 1,766 votes, R1 received 1,936, and Ms Wong Yi Ting 107. The Petitioner lost to R1 by 170 votes, representing 4.46% of the total valid votes. C. The 5 Election Advertisements 8.The 5 EAs are:
9.It is claimed that the 5 EAs included variably the names of some of 7 supporters (the “7 Supporters”). The EAs implied or likely to cause electors to believe that R1 had their support. It is the Petitioner’s case that R1 had before their publication, failed to obtain from any of the 7 Supporters written consent to the inclusion of their names in the same, in contravention of section 27(1) of the ECICO. 10.The 7 Supporters are:
11.Images of the 5 EAs have been produced. There can be no dispute that each of them contained the names of one or more of the 7 Supporters. Their support of R1 can readily be inferred, if not actually explicit. Some relevant particulars may be tabulated as follows:
12.Tse Yik Ching, the Assistant Returning Officer of the Election, has confirmed that there are no records of submission of any “Consent of Support” form in respect of the 7 Supporters. R2 has received three complaints against R1 for false claim of support, and has referred two to the law enforcement agency for investigation. D. The relief sought 13.By the Election Petition, the Petitioner requests the Court to determine whether R1 was duly elected, and if not, declare that R1 ceases to be an elected member of the District Council and that his office is vacant. 14.By the Originating Summons, R1 seeks:
15.R1’s case for the relief, as summarized by Mr Shek, is that:
E. The Issues 16.For HCAL 247/2020, parties have filed an Agreed Statement of Issues in Dispute. They are, in gist:
17.R1 is seeking relief under both section 31 of the ECICO and section 107 of the EACR. If relief under section 31 of the ECICO is granted, the allegation of illegal conduct under section 27 of the ECICO will cease to be a live issue in the Election Petition — Leung Wai Kuen Edward v Secretary for Justice, unrep, HCMP 1321/2012, 17 January 2013[2], per Lam JA at §14. 18.Breach of section 106(1) of the EACR is not an illegal conduct in contravention of the ECICO. Nor has it been pleaded or relied upon by the Petitioner as a “material irregularity”[3]. It therefore falls outside the grounds specified in section 49 of the DCO[4] that enable the Election to be challenged. Ms Ho submits that whether relief is granted to R1 for his breach of section 106(1) of the EACR will however impact on whether relief may be granted to him for breach of section 27(1) of the ECICO. F. Whether R1 engaged in illegal conduct contrary to section 27(1) of the ECICO F.1. Two live sub-issues 19.R1’s publication of the 5 EAs is not, and cannot be, disputed. 20.I have considered the contents of the 5 EAs. Each of them contained the name of at least one of the 7 Supporters (as tabulated above). Their support of R1 can readily be inferred, if not actually explicit. 21.Dates of the first publication or distribution of the 5 EAs are also not in dispute, also as tabulated above. 22.Two live sub-issues remain:
F.2. Onus and standard of proof 23.The onus of proof is on the Petitioner. Although in an election petition, the standard of proof is the civil standard of balance of probabilities, given the allegation of what can be prosecuted as a criminal offence, the Court would have to determine whether it is proved to a standard equivalent to the criminal standard — Re Ho Chun Yan, Albert (2012) 15 HKCFAR 686, at §§25 and 41, Cheng Keung Fung v Hung Chun Hin [2021] HKCFI 253, per Chow J at §15. 24.In my view, the proof of the element that R1 did not have the requisite written consent prior to the publication of the relevant EAs has to be proved to a standard equivalent to the criminal standard. F.3. What constitutes “consented in writing” 25.Mr Shek’s submission is that for the purpose of section 27(1A) of the ECICO, a written consent does not need to take on any particular form, but can be inferred from for example a chain of WhatsApp, Telegram or Facebook Messenger messages. 26.The gist of Ms Ho’s submission is that to qualify, the written consent must be a standalone written document. 27.The relevant part of section 27 of the ECICO stipulates that:
28.Section 106 of the EACR stipulates that:
29.It should be noted that the Chinese term for the word “consent” in sections 106(1)(c), 106(2)(a), 106(2)(b), 106(3)(b) and 106(7) of the EACR is “同意書”. 30.A written consent that satisfies the condition stipulated at section 27(1A) of the ECICO does not need to be in any particular format. As observed by Lam JA in Leung Wai Kuen (HCMP) at §19, which I respectfully agree:
31.There was however no discussion in Leung Wai Kuen (HCMP) as to whether it has to be a standalone document signed by the supporter. 32.The Chinese term “同意書”, though not entirely unequivocal, tends to support the interpretation that the required written consent is intended to mean one standalone document. 33.Mr Shek submitted in the course of the hearing that the EACR makes provisions to a more detailed level when compared with the ECICO. He tried to disengage section 106 of the EACR when interpreting section 27 of the ECICO. I do not accept that submission, for the simple fact that section 106 of the EACR makes specific reference to the consent referred to in inter alia section 27(1A) of the ECICO. The term “同意書” is clearly intended to refer to that. 34.When approaching this issue of interpretation, the purpose and context of sections 27(1) and 27(1A) of the ECICO are more important. 35.At §17.6 of Chapter 17 of the Guidelines on Election-related Activities (6th September 2019 Ed), it is explained that:
36.Also relevant is the Hong Kong Legislative Council Hansard 2 December 1987, wherein the Secretary for District Administration when moving the Second Reading of the Corrupt and Illegal Practices (Amendment) Bill 1987 said that:
37.From the above, one may gather that the purposes of section 27(1A) of the ECICO requiring prior written consent of a supporter include:
38.A composite written consent can be clear. For example, if a candidate writes to a supporter and asks in clear terms whether the supporter consents to the candidate including his (the supporter’s) name, logo or pictorial representation in his (the candidate’s) election advertisement, and if the supporter writes back in a signed note and say (albeit simply) “I consent”, the effects of the two documents when read together are perfectly clear. 39.However, the combined effects of a composite consent may not always be so clear. In fact, most of the times, they will not be. They can even be obscure, and open up different versions of interpretation. The correspondence between R1 and some of the 7 Supporters, which I will discuss below, in fact demonstrate how unsatisfactory it would be if written consents were to be permitted to be inferred from such exchanges. 40.Further, allowing two documents to be read together opens up the possibility of even more documents to be read together. No line can be drawn as to how composite a composite written consent can be permitted to be. 41.Allowing composite written consent will give rise to unnecessary complaints and disputes, may lead to electors being misinformed, and will lead to court proceedings the resolution which will take time. 42.In the course of his oral submission, Mr Shek accepted that his interpretation may not be the best way to embody the consent concerned, and will introduce uncertainty. 43.In my view, allowing composite written consent, and in particular allowing written consent to be construed from a chain of exchanges, will defeat all three of the identified purposes for requiring written consent. 44.The preparation of a clear and standalone written consent takes no effort at all. A specimen form has been devised by the Electoral Affairs Commission. Even if a particular candidate for whatever reasons decides not to use the specimen form, it will still take no effort at all for that candidate and the supporter to come up with “a written consent to include one’s name, logo or pictorial representation in the advertisement” — see Leung Wai Kuen (HCMP) at §19, 45.There exist therefore no practical considerations which require composite written consents to be allowed. 46.For the above reasons, I am of the view that to qualify as a written consent mentioned in section 27(1A) of the ECICO, the consent has to be a single document expressing consent to include one’s name, logo or pictorial representation in the advertisement. It cannot be a composite document with more than one document read together. It cannot be permitted to be inferred from a chain of correspondence or messages. I accept Ms Ho’s submission in this regard. 47.In the rest of the judgment, I use the term “Written Consent” to denote a written consent in the sense as I have described above. F.4. Whether prior Written Consents obtained 48.R1’s cases are not the same in respect of all the 7 Supporters. I have endeavored to summarize them above. S6, S7 and S1 will have to be considered separately. The other four may be discussed as a single group. F.4.a. S6 49.It is not R1’s case that S6 has given any Written Consent. She clearly has not. 50.I have ruled that a chain of correspondence do not qualify. Even if I were wrong there, the contents of the relevant WhatsApp messages between S6 and R1 would in my view still fail to qualify:
51.In the case of S6, there can be no doubt that sections 27(1) and 27(1A) of the ECICO have been contravened, and that R1 engaged in illegal conduct contrary to section 27(1) of the ECICO. F.4.b. S7 52.To recapitulate, it is R1’s case in respect of S7 that:
53.In so far as the messages exchanged between them:
54.As to whether S7 had signed a prior Written Consent, one needs to examine the evidence. Mr Shek submits that from R1’s affirmation (“R1’s HCMP Aff”), S7’s Statutory Declaration prepared for the purpose of these proceedings, and the Written Consent produced, “[S7] signed the [Written Consent] on 23 November 2019, which is one day before the actual distribution of the relevant election publication”[6] (emphasis added). Ms Ho submits that the evidence does not support that, but supports the inference that S7 only signed the Written Consent after the publication of the Posters. 55.Whether S7 signed it on 23 November 2019 is the crux. 56.The evidence is as follows:
57.I note that what S7 says at §8 of his Statutory Declaration (as underlined above) is in fact not supported by the Telegram messages produced. The messages do not show that R1 “asked me for the signed Consent Form via Telegram” (emphasis added). What R1 asked was “但係可否簽張支同畀我先” and “你臨走簽支同畀我先”. 58.I have considered the evidence set out above carefully. On 7 December 2019, R1 asked S7 to “簽張支同畀我先”. At that stage, and as submitted by Mr Shek, all R1 might know might be that he had not received the Written Consent. He might not know whether S7 had not signed it, or that S7 had signed it but had not sent the signed form over. But S7, with reference to the request to him to “簽張支同畀我先”, answered that “差d唔記得”. That answer in context must mean that he had nearly forgotten about signing the form. Then he was asked a second time to “你臨走簽支同畀我先”. To that, he answered he would send R1 soft copy. Notably, he did not say that he had already signed it on 23 November 2019 and would send soft copy of the signed form over to R1. 59.I have also considered the other evidence adduced. The two dates on S7’s Written Consent do not tally. Keung does not deal with the matter. Both R1 and S7 have not addressed the core issues as to when the document was signed, when it was sent over, when it was received, and when it was located. None of what they have said gives cause to understand those messages as I have analyzed above any differently. 60.In my view, those messages, which R1 produced and which have been confirmed by both R1 and S7 to be the Telegram messages they exchanged, show beyond doubt that S7 had not by 7 December 2019 when they exchanged those Telegram messages signed any Written Consent. 61.For the above reason, I conclude in the case of S7 that the evidence establishes to a standard equivalent to the criminal standard that section 27(1) of the ECICO has been contravened, and that R1 engaged in illegal conduct contrary to section 27(1) of the ECICO. F.4.c. S1 62.Ms Ho points to certain evidence which shows that S1 only flew back to Hong Kong on 24 November 2019. The Posters however started to be distributed in the morning of 24 November 2019. Ms Ho therefore submits[9] that even if S1 had signed the Written Consent on 24 November 2019, it is likely that his signing took place after R1 had started to publish the Posters in the morning of 24 November 2019. 63.The evidence before me leaves open the possibility that S1 signed the Written Consent in the small hours of 24 November 2019 before the distribution and publication of the Posters on that morning. 64.I conclude in the case of S1 that:
F.4.d. S2, S3, S4 and S5 65.It is R1’s case that he on four occasions between 19 October 2019 and 24 October 2019 obtained separately the Written Consent of S2, S3, S4 and S5. Each of them had signed on the same specimen consent form (referred to as the “Consent Form 1”, which term I adopt). R1 put and carried it in his backpack. It has subsequently been misplaced. It can no longer be located. 66.Each of S2, S3, S4 and S5 has filed a Statutory Declaration confirming R1’s case. 67.Ms Ho has not sought to challenge their evidence. 68.On the evidence, I conclude that in so far as S2, S3, S4 and S5 are concerned:
G. Whether relief be granted to R1 for the breaches G.1. The law 69.The law is not in dispute. The gist may be stated as follows. 70.Section 31 of the ECICO empowers this Court to make orders relieving candidates from consequences of illegal conduct contrary to section 27(1). Section 31(2) stipulates that such orders may however be granted:
71.Relevant to section 31 of the ECICO I have been cited a number of authorities, which include Leung Wai Kuen (HCMP). From it Ms Ho has distilled a number of propositions. Mr Shek does not seek to dispute them. I accept them. They may be summarized as follows. 72.When considering whether relief should be granted for breach of section 27(1) of the ECICO, the crucial issue is not whether a candidate actually had the support of the supporters concerned, but whether he had their written consent for the inclusion of their names as his supporters in the election advertisements prior to their dispatch: Leung Wai Kuen (HCMP) §30. 73.Inadvertence means “negligence or careless where the circumstances show an absence of bad faith”: Leung Wai Kuen (HCMP) §39. One must however not equate the lack of bad faith with inadvertence. The two are separate elements which must both be satisfied: Leung Wai Kuen (HCMP) §40. 74.There is a distinction between a case where a candidate simply turned a blind eye or acted recklessly as to the legal requirement and a case where the candidate has tried to understand what the legal requirement is but failed to get it correctly: Leung Wai Kuen (HCMP) §37. 75.The following observations reiterated by Lam JA in Leung Wai Kuen (HCMP) at §38 are worth highlighting, that:
76.At §[31.05] of the Annotated Ordinance: Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554), the law is summarized as follows:
77.Section 107 of the EACR empowers this Court to grant relief for election advertisements. Similar to section 31(2) of the ECICO, section 107(2) of the EACR stipulates that those orders however may be granted:
78.Relevant to section 107 of the EACR I have been cited胡子良 及 選舉事務處unrep, HCMP 770/2016, 23 December 2016. The considerations are similar to those relevant to section 31 of the ECICO. G.2. Discussion 79.I have concluded that there have been breaches of section 27(1) of the ECICO in respect of S6 and S7. 80.R1 was aware of his obligations under section 27(1) of the ECICO and section 106 of the EACR[10]. He was also aware of the existence of the specimen consent form. He is not claiming, and cannot claim, ignorance. 81.The evidence suggests that all of the 7 Supporters actually supported R1. It is not a case of he trying to claim support falsely or to conceal absence of support. In my view, the evidence supports the absence of bad faith. 82.However, the absence of bad faith is not to be equated with inadvertence. Both will have to be established. 83.I remind myself that when deciding whether relief may be granted, the crucial issue is not whether R1 actually had the support of the 7 Supporters, but whether he had their written consent prior to the distribution of the relevant EAs. That ought clearly to be so given what I have found to be the purposes for requiring prior written consent. 84.In the case of S6:
85.In the case of S7:
86.I have thus far considered the cases in relation to S6 and S7 individually. A fortiori, relief ought to be refused if they are to be considered together. 87.In reaching the above conclusions, I have considered Mr Shek’s submissions that in a good number of other cases, R1 had appropriately obtained and filed the prior Written Consent. I accept Ms Ho’s submission that such quantitative consideration is not helpful. A large number and high percentage of failure show a bad case and they are relevant. A smaller number and lower percentage of failure does not on the other hand show that relief should be granted. The facts should be looked at. 88.In the case of S1, S2, S3, S4 and S5:
H. Whether duly elected 89.Mr Shek accepts that if this Court refuses R1 relief under section 31 of the ECICO, it should be declared that R1 was not duly elected. That must be right — see “Leung Wai Kuen (HCMP)”, §§32-34, 39-40. 90.In the circumstances, I declare that R1 was not duly elected in the Election. I cannot determine whether some other person was duly elected instead. That is also not being sought in the Election Petition. I declare instead that R1 ceases to be an elected member of the District Council, and that his office as the District Councillor of the Constituency is vacant. I. Further actions and costs 91.A copy of this judgment will be sent to the Secretary for Constitutional and Mainland Affairs pursuant to section 55(5) and the Director of Public Prosecutions pursuant to section 55(7) of the DCO. 92.I make a costs order nisi that R1 shall bear the costs of both HCAL 247/2020 and HCMP 1183/2020. R2 has sought summary assessment and submitted a statement of costs. Ms Kao has also submitted a statement of costs. Any party who seeks variation of the costs order nisi, and any other parties who seeks summary assessment may write in within 14 days, in which case I will give directions on the further conduct of all the applications (including that of R2 and Ms Kao’s) together.
Ms Sabrina Ho and Mr Jack Chan, instructed by Matthew Ng & Co, for the Petitioner in HCAL 247/2020 and the Intervener in HCMP 1183/2020 Mr Randy Shek, instructed by JCC Cheung & Co, for the 1st Respondent in HCAL 247/2020 and the Applicant in HCMP 1183/2020 Ms Vivian Kao, Government Counsel of the Department of Justice, for the Respondent in HCMP 1183/2020 The attendance of the 2nd Respondent in HCAL 247/2020 was excused [1] §30 of his written submissions. [2] Referred to below as “Leung Wai Kuen (HCMP)” to distinguish it from the related proceedings under HCAL 1/2012 (which will be referred to as “Leung Wai Kuen (HCAL)”). [3] Under section 49(1)(a)(iv) of the DCO. [4] Section 49(1)(a)(i) clearly has no application. [5] The “permission” relates to the permission obtained for the purposes of section 104A(1) of the Public Health and Municipal Services Ordinance (Cap 132), which we are not concerned with. [6] §24 of his written submissions. [7] [C/721-723]. [8] [C/724-727]. [9] §33(5) of her written submissions. [10] §§13 and 14 of R1’s HCMP Aff. [11] §19 of R1’s HCMP Aff. [12] §22 of R1’s HCMP Aff. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCAL 247/2020