Yu Hon Kwan v. Secretary for Justice

HCMP 684/2020

[2021] HKCFI 3022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 684 OF 2020

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Submissions:  6 and 20 August 2021

Date of Decision:  11 October 2021

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D E C I S I O N

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A.    Introduction

1.By an Amended Originating Summons dated 13 July 2021, the Applicant applies to correct his Return and Declaration of Election Expenses and Election Donations lodged on 20 December 2019 (“Return”).  The application is made under section 40(3) of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”).

2.The Secretary for Justice (“SJ”), as respondent to the application, takes a neutral stance.  But she also has a duty to assist the Court by drawing to its attention any matters which may cast doubt on the Applicant’s case.

3.Though originally fixed for a hearing on 15 September 2021, I directed the matter to be dealt with on paper, by reference to the succinct written submissions provided by Mr Patrick Chiu, Counsel for the Applicant, and by Ms Cassandra Fung, Government Counsel for the SJ.  Having considered those submissions, this is my Decision.

B.   Factual Background

4.The Applicant asserts the relevant factual background in his affirmation evidence.

5.In short, the Applicant was the successfully elected candidate of the Lantau Island Constituency in the 2019 District Council Election.  Following the publication in the Gazette of the election result on 29 November 2019, the Applicant was required to lodge the Return with the Registration and Electoral Office (“Office”) before the statutory deadline of 29 December 2019.  He lodged his Return within time, on 20 December 2019.

6.On 26 February 2020, the Office notified the Applicant that there might be errors and omissions in respect of the nature and the usage of two vehicles, with registration numbers CX 283 and UV 8075, used by the Applicant in his election campaign.  The Applicant says he had assigned an assistant (“Ms Wong”) to take care of most of the administrative works including the calculation of election expenses and donations, and filling in the Return.  Ms Wong was responsible, in particular, for the arrangement concerning the borrowing of the two vehicles.

7.Amongst the documents accompanying the Return, the Applicant had included the petrol expenses of using those two vehicles. However, he had not included the transportation expenses for use of the vehicles.  The Applicant says that was because he had held the honest belief that the vehicles were borrowed free of charge, but on later double-checking had realised that the transportation expenses ought to have been included at the cost of $2,800 (being the quoted market rate for the daily hiring fee of such vehicles).

8.On 17 March 2020, the Applicant wrote to the Office stating that he would apply to the High Court for an Order for relief against the relevant errors and omissions in the Return.  The Originating Summons was issued on 26 May 2020, but later amended on 13 July 2021 (deleting some of the relief originally sought).

C.   Applicable Principles

9.The application in this case is made under section 40 of the ECICO, for relief from failure to have complied with section 37 of the ECICO.  The principles applicable to an application were canvassed by Keith Yeung J in Man Fu Wan v Secretary for Justice [2020] 4 HKLRD 153 at §§8-17, with his reference to the authorities there collated and cited.

10.Attempting my own summary, without interspersed references to authority, the applicable principles can be stated as:

(1)  A candidate at an election must lodge with the appropriate authority an election return, and must ensure that the election return is lodged within the relevant statutory period.

(2)  A candidate who fails to lodge an election return as required can apply to the Court for an order allowing him to lodge an election return within such further period as the Court specifies.

(3)  On such an application, the Court may in its discretion 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.

(4)  A candidate may also apply to the Court to enable him to correct any error or false statement in an election return.

(5)  On such an application, the Court may in its discretion make the order sought, but only if it is satisfied that the error or false statement was due to: (a) misconduct of an agent or employee of the applicant; or (b) inadvertence or an accidental miscalculation by the applicant or any other person; or (c) any reasonable cause, and was not due to the applicant’s bad faith.

(6)  The word “inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith, identifying that inadvertence and lack of bad faith are two separate elements.

(7)  Hence, the burden is on the applicant to show one of the preconditions for the grant of relief, and the absence of bad faith.

(8)  Where a deliberate decision has been made to exclude an item from an election return, reliance cannot be laid on “inadvertence”.  But the applicant may rely on the “any reasonable cause” exception.

(9)  Ignorance of the law is no defence, and it is incumbent upon a candidate to familiarise himself with the election rules when meeting the requirement to lodge an election return setting out the expenses incurred and donations received.

(10)  Indeed, participants in elections should be aware that elections and the attendant legal obligations are serious matters, such that they should take reasonable steps to fulfil their legal obligations as candidates.

(11)  So, there is a distinction between (a) a case where an applicant simply turned a blind eye or acted recklessly as to the legal requirements, and (b) a case where an applicant has tried to understand what the legal requirement was, but failed to meet it correctly.

(12)  The Court’s power to grant relief is discretionary, and it is important that such discretion be exercised in a manner consistent with the integrity of the election legislation.

11.Further, whilst I accept that the facts and results of other cases may sometimes be considered by way of some comparison or analogy, each particular case requires the proper application of the principles to the particular circumstances of the particular case, and the exercise of discretion in and to those circumstances.

D.   Whether to Grant Relief

12.As Ms Fung submits, though the Applicant had assigned Ms Wong to assist him in filling in the Return, it was the Applicant who bore personal responsibility for the submission of the Return, and it was the Applicant who had the statutory duty to take reasonable steps to ensure that the Return had been correctly filled in and duly lodged.  Further, there is no specific evidence from the Applicant indicating that he had checked the Return carefully, or familiarised himself with the election rules concerning election donations before submitting the Return.

13.However, I note that the Return was filed well within the originally prescribed time limit, and that the use of the particular vehicles was clearly identified by including the petrol expenses.  I accept, therefore, that there was plainly no intention to conceal the use of those vehicles.  I see no reason not to accept the Applicant’s evidence that the omission of the transportation expenses for the use of those vehicles was because of an honest belief that they were borrowed free of charge.

14.I also accept Mr Chiu’s submission that the omission in this case was the result of negligence or inadvertence not so gross in nature, and that the omission did not involve substantial amounts of money or any egregious conduct, such as might otherwise have raised doubts concerning the good faith of the Applicant.  I accept that the omission was, in those circumstances, due to inadvertence and not due to the Applicant’s bad faith.

15.Therefore, there is no need for me to go on to deal with the alternate reliance by the Applicant on the “reasonable cause” limb.

E.   Order to be Made

16.Overall, it seems to me correct on the particular facts of this case to exercise the discretion to grant the relief sought by the Applicant, namely to allow him to correct the errors in the Return by filing a corrective election return within 14 days from the date of this Decision.

F.   Costs

17.Where the Applicant is in effect seeking the Court’s indulgence, and the SJ has properly adopted a neutral stance whilst drawing to the Court’s attention matters properly to be taken into the balance, the appropriate order is that the Applicant should bear the SJ’s costs.

18.Whilst Mr Chiu in his written submissions sought to reserve the Applicant’s right to file further submissions on costs if the parties could not agree costs for the application, I see no real benefit in receiving further submissions, nor the proportionality of the expense which further submissions would necessitate.  Indeed, I doubt Mr Chiu would argue against the starting point that the Applicant should bear some costs.

19.Ms Fung invites me summarily to assess the SJ’s costs in the total sum of $15,645 (as detailed in a Statement of Costs for Summary Assessment), which is not a very significant sum.  Having considered the Statement of Costs, and noting the change of case handler which seems to me likely to have duplicated some element of time, I summarily assess the costs in the sum of $12,000.

20.In conclusion, I order the Applicant to pay the SJ’s costs of the application in the summarily assessed sum of $12,000.

Mr Patrick Chiu, instructed by Leung, Tam & Wong, for the applicant

Ms Cassandra Fung, Government Counsel, of Department of Justice, for the respondent