Tung Kin Lei v. Ng Ting Lam and Others

[English Translation - 英譯本]

HCAL 245/2020

[2021] HKCFI 514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 245 OF 2020

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Before: Hon K Yeung J in Chambers

Date of Hearing: 9 July 2020

Dates of 2^nd Respondent’s Supplemental Submissions: 23 July 2020 and 25 August 2020

Date of Petitioner’s Supplemental Submission: 6 August 2020

Date of Judgment: 1 March 2021

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Judgment

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Introduction

1.The Petitioner was a candidate of the Election for the Shatin District Council Tai Wai Constituency (the “Constituency”) held on 24 November 2019 (the “Election”).  The 1^st Respondent was another candidate of the Constituency; the 2^nd Respondent the Chairperson of the Incorporated Owners of May Shing Court located in the Constituency, and the 3^rd Respondent the Returning Officer for the Constituency.  At the end of the election, the Petitioner received 4,114 votes, the 1^st Respondent 4,198 votes, and the other two candidates 748 and 54 votes respectively.  The 3^rd Respondent declared the 1^st Respondent the elected candidate.

2.The Petitioner lodged an election petition on 21 January 2020 (the present election petition), saying that the 1^st Respondent had not been duly elected.  The major ground of the Petition was that the 1^st Respondent and 2^nd Respondent, or someone else, had engaged in conduct that contravened the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) at the election.  The other grounds included general prevalence of corrupt and illegal conduct at the election and irregularity in relation to casting or counting of votes.

3.On 13 March 2020, the 2^nd Respondent lodged an application to the Court to strike out the part of the election petition against the 2^nd Respondent (“the present strike-out application”), saying that the relevant part failed to disclose any reasonable cause of action and it was an abuse of process.

4.After the hearing on 9 July 2020, to comply with the Court’s direction, both parties filed further written submissions on the enactment history of section 51 of the District Councils Ordinance, Cap. 547.

5.In the present strike-out application, the 2^nd Respondent was represented by Mr. Jeffrey C K Tam and Ms. Abigail Y Y Liu, and the Petitioner was represented by Ms. Katy H T Chung.

Legal Basis for Lodging an Election Petition

6.Pursuant to section 49 of the District Councils Ordinance, an election to return an elected member may be questioned only by an election petition lodged under section 50 of the Ordinance, and only on the grounds specified in section 49.

7.The grounds specified in section 49 include corrupt or illegal conduct[1] engaged in by the person declared to be elected or by someone else in respect of that person at or in connection with the election.

8.According to section 49(3) of the District Councils Ordinance, “corrupt or illegal conduct” means corrupt or illegal conduct in breach of the Elections (Corrupt and Illegal Conduct) Ordinance.

9.By virtue of section 50(b) of the District Councils Ordinance, the Petitioner may lodge the present election petition.

Accusation in the Election Petition against the 2^nd Respondent

10.The Petitioner alleged in her election petition and affidavit[2] that the 2^nd Respondent was in breach of the Elections (Corrupt and Illegal Conduct) Ordinance.  Her allegations were mainly that:

(a)    Without authorization from or agreement of the Incorporated Owners, the 2^nd Respondent (and some management committee members of the Incorporated Owners of May Shing Court) used the name of the Incorporated Owners and the title of its chairperson (and titles of other management committee members) at election street counters and on the publicity banners and handbills in support of the 1^st Respondent, contrary to section 27 of the Elections (Corrupt and Illegal Conduct) Ordinance (on false claim of support)[3];

(b)    The 2^nd Respondent attached photocopies of publicity banners and handbills in support of the 1^st Respondent to the letters that the Incorporated Owners issued to the occupants of May Shing Court, leading to a misunderstanding that the entire Incorporated Owners of May Shing Court was backing the 1^st Respondent, which is likewise contrary to section 27 of the Elections (Corrupt and Illegal Conduct) Ordinance[4].

(c)    In relation to the expenses incurred for the purpose of the aforesaid letters and the relevant return, the Petitioner also alleged that the 2^nd Respondent had contravened other provisions of the Elections (Corrupt and Illegal Conduct) Ordinance including sections 23, 24, 34 and 38[5].

2^nd Respondent’s Grounds of Application for Strike-out

11.The 2^nd Respondent rebutted the Petitioner’s allegation and stressed in his affidavit[6] that although the banners and handbills did mention May Shing Court’s Incorporated Owners, it’s chairperson and other titles, they also made it clear that the 2^nd Respondent (and other relevant members of the Management Committee) were supporting the 1^st Respondent in their individual capacity.  Besides, the letters and annexments of the Incorporated Owners were there to explain this point.

12.In terms of the present strike-out application, the 2^nd Respondent did not rely on the factual issues concerning the allegations[7].  He instead relied on the following two grounds (the first one being the main ground):

(a)    Pursuant to section 51 of the District Councils Ordinance, the 2^nd Respondent may not legally be made a respondent to an election petition (“Ground 1”); and

(b)    The 2^nd Respondent would not benefit from or have any stake in the result of this election petition and he does not wish to take part in the process (“Ground 2”).

13.Since Ground 1 and Ground 2 are substantially related, the Court is going to consider the two grounds together.

Central issue

14.The central issue of the present strike-out application is whether, on the correct interpretation of section 51 of the District Councils Ordinance, the 2^nd Respondent may legally be made a respondent to the election petition.

15.The full text of section 51 of the District Councils Ordinance in both Chinese and English is quoted as follows:

“ 51. 可列為選舉呈請答辯人的人

凡某人的當選遭人藉選舉呈請質疑，則該當選的人以及有關選舉的選舉主任，均可列為該呈請的答辯人。”

“ 51. Who may be made respondent to election petition

Any person whose election is questioned by an election petition and the Returning Officer in respect of the election may be made a respondent to the petition.”

The 2^nd Respondent’s Submission

16.Mr. Tam submitted that in the light of its context and purpose[8], section 51 of the District Councils Ordinance shall be interpreted as meaning that only the elected person and the returning officer may be made a respondent to an election petition.  If anyone can be made a respondent, section 51 would be rendered meaningless.  As the 2^nd Respondent is neither of the two, he may not legally be made a respondent to the present election petition.

17.Mr. Tam was of the view that the Elections (Corrupt and Illegal Conduct) Ordinance and the District Councils Ordinance each has its own function.  The Elections (Corrupt and Illegal Conduct) Ordinance prohibits all people from engaging in the corrupt or illegal conduct as specified in the Ordinance.   Offenders are to be held criminally liable.  It, nevertheless, has nothing to do with section 51 under which only two types of people may be made respondents to an election petition.  If the 2^nd Respondent has indeed contravened the Elections (Corrupt and Illegal Conduct) Ordinance, he shall be held criminally liable under that ordinance, but it does not follow that he can be made a respondent to an election petition.

18.Therefore, in respect of the 2^nd Respondent, the Petitioner is devoid of any cause of action or prospect of success, and the relevant part of the petition is an abuse of legal process which should be struck out according to Order 18, rule 19 of the Rules of the High Court.

19.In his supplemental written submission, Mr. Tam traced the provenance of section 51 of the District Councils Ordinance to section 113(2) of the Representation of the People Act 1949 (“RPA 1949”) which was subsequently replaced by the Representation of the People Act 1983 (“RPA 1983”).  Section 113(2) of the former has the same material wording as that of section 128(2) of the latter.  The original text of section 128(2) of RPA 1983 reads:

“ A person whose election is questioned by the petition, and any returning officer of whose conduct the petition complaints, may be made a respondent to the petition.”

20.Mr. Tam cited Absalom v Gillett[9], saying that section 128(2) of RPA 1983 defines who may be made a respondent to an election petition, and the word “may” qualifies one to be a party to an election petition:

“ In our judgment, section 128(2) defines the potential respondents to a petition… The subjunctive ‘may’ is a word of limitation, not permission.”[10]

21.Mr. Tam pointed out that the wording adopted in section 50 of the District Councils Ordinance (on who may lodge an election petition) was likewise “may” rather than “may…only”.  However, the discussions carried out by the relevant Bills Committee showed that an election petition shall be lodged by the specified persons[11]. Mr. Tam submitted that if under section 50, there is a restriction that an election petition may only be lodged by the specified persons, the same should also apply to section 51.

22.Mr. Tam also submitted that the 2^nd Respondent would not have any stake in the result of this election petition, and he did not wish to take part in the process, and therefore, he should not be made a respondent.  Mr. Tam cited Yu Chi Shing Paul v Tin Ping Estate Proprietor Concernment Association and Others[12], in which an organization, which was neither the elected candidate nor the returning officer, was accused of having contravened the legislation on election and had been made a respondent initially.  Upon the organization declaring that it would not have any stake in the result of the election petition and that it did not wish to take part in the process, Lam JA (as he then was) then followed the approach adopted by the court in Lovering v Dawson (No. 1)[13] by removing the organization as respondent to the petition.  It was held in Lovering that an unsuccessful candidate who is not the elected person and not prepared to take part in the election petition may not be made a respondent under the relevant provisions.

Submissions by the Petitioner

23.Ms. Chung replied that the word “may” was used in section 51 while words like “must” or “may only” were used in other provisions of the District Councils Ordinance, for example, section 49 (about the grounds on which an election petition can be made) and section 53 (about the period within which an election petition and appeal must be lodged). According to Ms. Chung, the correct interpretation of section 51 should be that no matter who has engaged in corrupt or illegal conduct, both the elected person and the returning officer can be made a respondent to an election petition.  She submitted that it would not render section 51 meaningless as the elected person or the returning officer may not necessarily be involved in the corrupt or illegal conduct.  Even if “may” is construed as “must” (i.e., the elected person or the returning officer must be made a respondent), it would not rule out the possibility that the 2^nd Respondent can also be made a respondent.

24.Ms. Chung submitted that section 58 of the District Councils Ordinance (about a respondent to be substituted by a specified person after his/her withdrawal) shows that people other than those belonging to the categories of elected persons and returning officers can also be made a respondent.  Ms. Chung also pointed out that according to section 55(7) of the District Councils Ordinance, the Court may come to its decision on the corrupt or illegal conduct and refer the case to the Director of Public Prosecutions.  As the Court may come to its own decision, it follows that the relevant person(s) should also be made a respondent, so that the case can be dealt with in a fair and thorough manner.

25.Ms. Chung further submitted that the 2^nd Respondent’s interpretation of section 51 was overly narrow.  By way of an election petition, the Court deals with matters that are unfair in respect of an election.  People other than the elected person(s) and the returning officer(s) may also engage in corrupt and illegal conduct.  If they cannot be made a respondent, the important function of an election petition would be lost.

26.Regarding section 50 of the District Councils Ordinance which provides that an election petition can only be lodged by the specified persons, Ms. Chung said that in section 50, as the word “or” is used to link up the two kinds of specified persons, the implication is that all other possibilities should be ruled out, but in section 51, there is a different structure in that the two kinds of persons, the elected persons and the returning officers, were not linked up with “or”.  Therefore, section 51 does not rule out the possibility of people other than the elected persons or the returning officers being made a respondent.

27.Ms. Chung objected to Mr. Tam’s citation of Absalom v Gillett, saying that the 2^nd Respondent should not have put forward a new argument in his further written submission.  Ms. Chung also pointed out that in Absalom v Gillett, it was only held that the petitioner had to make the elected person(s) a respondent, without denying the possibility that people other than the elected persons or the returning officers may also be made a respondent.  On the other hand, Mr. Tam submitted that by citing Absalom v Gillett, he was not elaborating on a new argument.  Rather, it was in the process of tracing the provenance of section 51 of the District Councils Ordinance that he found section 51 very similar to section 128(2) of RPA 1983 and that there is an interpretation of the relevant section in that case.  It was therefore deemed useful to the Court.

28.In her supplemental written submission, Ms. Chung cited English authorities Waghorn v Fry and anor [2015] EWHC 744 (QB), and Akhtar and others v Jahan and others, Igbal and others v Islam and others [2005] All ER (D) 15 (Apr), saying that the former had government officials and the latter had other unelected candidates made respondents, which showed that respondents to an election petition are not limited to the elected persons or the returning officers.  Mr. Tam responded by saying that those cases were unrelated to the enactment history of section 51 of the District Councils Ordinance, and therefore had strayed beyond the scope of the supplemental written submission. Moreover, in those cases, it was not considered whether people other than the elected persons or the returning officers can be made a respondent to an election petition.  As a result, they were of no use to the Petitioner.

29.As far as Yu Chi Shing Paul is concerned, Ms. Chung pointed out that the petitioner in that case did not object to the removal of the relevant organization, and the court did not make any ruling on section 51 either. Therefore, that case does not have any bearing on the instant case.

Discussions

30.So far as the central issue of this strike-out application is concerned, there is not a Hong Kong case that is of direct relevance.

31.By looking at the wording used in section 51 of the District Councils Ordinance alone, it is not altogether clear precisely what it means.

32.However, in construing legislation, the Court must take into account the context and purpose of the relevant provisions.

33.Section 51 of the District Councils Ordinance is one of the sections in Division 4, Part V of the District Councils Ordinance:

(a)    Part V contains provisions for various aspects of an “Election of Members to a District Council”.

(b)    Division 4 deals with the aspect of “Election Petitions”.

(c)    What is important is that the “Election Petitions” in Division 4 are not based on the usual causes of action.  Instead, those causes of action are of Division 4’s own devising.  Had there not been provisions made in that division for things like rights, powers or legal obligations in terms of “election petitions”, the relevant rights, powers or legal obligations in relation to “election petitions” simply would not have existed[14].

(d)    Therefore, in Division 4, it is necessary to set down statutory authority and legal obligations on various aspects of an election petition and make provisions on, for example,

(i)  the grounds on which an election may be questioned (section 49);

(ii)    who may lodge an election petition (section 50);

(iii)  who may be made respondent to an election petition (section 51);

(iv)  the Court’s jurisdiction on election petitions (section 52);

(v)     the period within which election petitions and appeals must be lodged (section 53).

(e)    In particular, in relation to section 50,

(i)  it is stipulated in section 50(a) that “An election petition may be lodged by 10 or more electors entitled to vote in the relevant constituency”;

(ii)    If, as alleged by Ms. Chung, the word “may” in section 50(a) refers to permissibility, it would imply that an election petition can also be lodged by less than 10 relevant electors, in which case section 50(a) would be rendered meaningless.

(f)    By the same token, if, as alleged by Ms. Chung, the word “may” in section 51 refers simply to permissibility, section 51 would likewise be made meaningless.

34.The purpose of setting down the procedures for election petitions in Division 4 is to allow people who may lodge an election petition to question the result of an election on the specified grounds.  In the process of considering an election petition, the Court may have to decide whether or not anyone has engaged in any corrupt or illegal conduct.  However, the ultimate objective of the exercise is not to punish those people who have engaged in corrupt or illegal conduct, but to decide whether an elected person has been duly elected.  To punish the above-mentioned people is something that falls within the ambit of the Elections (Corrupt and Illegal Conduct) Ordinance.  If the person who has engaged in corrupt or illegal conduct is a third person, that third person does not have to be a respondent to the election petition, and whether he is a respondent or not would not affect the jurisdiction of the Court to determine an election petition.

35.Ms. Chung pointed out that according to section 55(7) of the District Councils Ordinance, if, at the end of the trial of an election petition, it appears to the Court that a specified person may have engaged in corrupt or illegal conduct at or in connection with the election, the Court is required to provide the Director of Public Prosecutions with a report giving details of the conduct.  I am of the view that section 55(7) of the District Councils Ordinance highlights the fact that the objective of the procedures as set down in Division 4 of the District Councils Ordinance is not to punish those people who have engaged in corrupt or illegal conduct.  Punishment for the relevant conduct falls within the ambit of the Elections (Corrupt and Illegal Conduct) Ordinance, and it was for the Director of Public Prosecutions to make the relevant decision.

36.I have noticed, as Ms. Chung has pointed out, that there are other sections of the District Councils Ordinance in which words like “must” or “may only” are used.  Nevertheless, I do not think the use of those words is sufficient to countervail the preceding considerations and analysis.

37.Section 58 of the District Councils Ordinance is applicable only when a respondent withdraws from an election petition.  It therefore does not help in the interpretation of section 51.

38.In my view, considering the wording, context and legislative purpose of the District Councils Ordinance as a whole, section 51 should be interpreted as meaning that only the elected person(s) and the returning officer in respect of the election are permitted to be made respondents to an election petition.

39.The above interpretation is consistent with the background and history of the enactment of the District Councils Ordinance as well as the relevant English authorities set out as follows.

40.The legislative background and enactment history of the District Councils Ordinance:

(a)   The District Councils Bill was gazetted on 11 December 1998.

(b)   Sections 48 and 49 of the District Councils Bill subsequently became sections 50 and 51 of the District Councils Ordinance.

(c)   As far as counsel’s research on the District Councils Bill is concerned, no information directly related to section 49 of the District Councils Bill was found, but there were discussions on section 48 as set out below.

(d)   According to the minutes of the District Councils Bill Committee meeting dated 22 January 1999, there were discussions held by the Committee of the District Councils Bill on section 48 of the District Councils Bill as follows:

“Clauses 48 – 51

35. PGC(E) [Principal Government Counsel (Elections)] said that a similar provision was made in section 62 of the LegCo Ordinance, as set out also in Table B.

36. The Legal Adviser pointed out that although there was no substantial difference between clause 48 and section 62, members might wish to consider the policy aspect of whether it was appropriate to also require 10 or more electors to lodge an election petition in respect of a DC [District Council] election.

37. Mr CHEUNG Man-kwong said that the number of electors of a District Council constituency was far smaller than that of a LegCo constituency. He enquired about the rationale for setting the same requirement of 10 or more electors in clause 48(1). He expressed concern that an unsuccessful candidate might have difficult [sic.] in finding 10 electors who were willing to lodge a petition. Miss HO Sau-lan echoed Mr CHEUNG’s concern.

38. DS(CA)2 [Under Secretary for Constitutional Affairs (2)] responded that 10 or more electors was an appropriate figure as a smaller number of say, two or three, might result in frivolous petitions being lodged. He further pointed out that under clause 48(b), an unsuccessful candidate could lodge the petition himself.” (emphasis added)

(e)   I agree with Mr. Tam’s submission that according to Pepper v Hart [1993] AC 593, what was said in paragraph 38 of the above minutes of meeting by the Under Secretary for Constitutional Affairs as a facilitator of the Bill can be cited to help interpret sections 50 and 51 of the District Councils Ordinance.

(f)   The legislative intent as shown in the relevant speech of

the Under Secretary for Constitutional Affairs conforms to and supports the analysis set out in paragraphs 33(e) and (f) above.

41.The relevant English cases:

(a)   The research carried out by Mr. Tam shows that section 51 of the District Councils Ordinance can be traced to section 113(2) of the English RPA 1949, which was subsequently replaced by section 128(2) of the RPA 1983 (same wording).

(b)   Ms. Chung accepted the above-mentioned research and agreed that section 51 of the District Councils Ordinance and section 128(2) of RPA 1983 are in similar terms[15].

(c)   I have already cited section 128(2) of RPA 1983.

(d)   I granted leave for Mr. Tam to cite Absalom v Gillett in his supplemental skeleton submission as Ms. Chung would have sufficient opportunities to (and she did) reply in relation to Absalom v Gillett.

(e)   On the interpretation of section 128(2) of RPA 1983, the English court had the following observation:

“…we consider that [the] submission that the words ‘may be made a respondent’ in section 128(2) are directory only as regards service on a successful candidate cannot be sustained on the words of the statute. In our judgment, section 128(2) defines the potential respondents to a petition brought under section 128(1). The subjunctive ‘may’ is a word of limitation, not permission. It confers no choice or discretion upon the petitioner whether or not he will serve the successful candidate. If a petition is to be brought, it must be so served. The requirement is mandatory.”

(f)   In Absalom v Gillett, the English court was of the view that section 128(2) of RPA 1983 “defines” who can be made a respondent to a petition.  I do not agree with Ms. Chung’s submission[16] that the court did not conduct any analysis or draw any conclusion with regard to the relevant issue;

(g)   On the contrary, I agree with Mr. Tam’s submission that the English cases cited by Ms. Chung (i.e. Waghorn v Fry and anor, Akhtar and others v Jahan and others, and Igbal and others v Islam and others) do not contain any analysis of section 128(2) of RPA 1983, and therefore would not help the case of the petitioner.

42.Basing on the aforesaid analysis and reasons, I am of the view that pursuant to section 51 of the District Councils Ordinance, it is not legally possible for the 2^nd Respondent to be made a respondent to the present election petition.  I accept Ground 1 put forward by the 2^nd Respondent in terms of the present strike-out application.

43.In view of my interpretation of section 51 of the District Councils Ordinance, Ground 2 has become irrelevant.  Whether or not the 2^nd Respondent would benefit from the result of the election petition, or whether he is willing to take part in it would not affect the conclusion that it is not legally possible for him to be made a respondent to the present election petition.

Conclusion

44.Basing on the aforesaid analysis and reasons, I shall grant the present strike-out application by striking out the part of the election petition against the 2^nd Respondent and dismiss the action.

Costs

45.I shall make the following order nisi for costs: The costs of and incidental to the present strike-out application be to the 2^nd Respondent and be assessed summarily.  As the present strike-out application involves important legal issues without any precedent in Hong Kong, and it is necessary to trace the origin of section 51 of the District Councils Ordinance, I would tentatively allow certificate for two counsel.  The costs order nisi shall be made absolute 14 days after the date on which this decision is handed down unless in the meantime there is a written application by any party for variation.  Any party is entitled to write to my clerk for that purpose.  Upon receiving the request, I will give further written directions about the application.

Ms. Katy H T Chung, instructed by Jimmie K S Wong & Partners, for the Petitioner

Mr. Jeffrey C K Tam and Ms. Abigail Y Y Liu, instructed by Ho Tse Wai & Partners, for the 1^st and 2^nd Respondents

Attendance of the 3^rd Respondent excused

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.