Liu Sing Lee v. Richard Luk Fong Chun and Another
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HCMP002479/1994 1994 No. MP2479 IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS ___________
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____________ Coram : Hon Jerome Chan, J. in Court Date of hearing : 22 December 1994 Date of delivery of judgment : 22 December 1994 Date of handing down reasons : 30 December 1994 ________________________ REASONS FOR JUDGMENT ________________________ 1. The petitioner, Liu Sing Lee, a social worker and a legal practitioner, was a candidate at the election for members of the District Board for the constituency of Wong Tai Sin District that was held on 18th September 1994. He was an elected member of the District Board for the said district since 1985. The petitioner is also a founder member of the Hong Kong Association for Democracy and People's Livelihood. 2. The petitioner's term of office in the District Board would have expired if he did not stand for re-election in the 1994 election. However, instead of standing for re-election, the petitioner decided to nominate one Yeung Man Wai, an assistant in his office to stand for election in the said constituency. He therefore signed as the 11th subscriber to the nomination paper of Yeung that was submitted on 1st August 1994, the first day of the nomination period. However, by a notice dated 12th August 1994, Yeung was notified that his nomination paper had been declared invalid by the then returning officer, one Chu Man Ling on the ground that Yeung had been absent from Hong Kong during the past 10 years immediately preceding the date of his nomination. It was said that not being habitually and normally resident here during the said period he could not be considered as having ordinarily resident in Hong Kong. Yeung did not, and has never, challenged the declaration of invalidity made by the returning officer. Instead, the petitioner decided to stand in his place in the election. In the premises, the petitioner submitted his nomination paper at about 10:55 am on 15th August 1994, a day before the close of nomination on 16th August 1994. 3. However, the nomination paper of the petitioner was also declared invalid by the replacement returning officer, one Luk Fong Chun, by a notice dated 22nd August 1994. He was told that as 8 of the subscribers in his nomination paper were also the subscribers to Yeung's nomination paper, their signatures were inoperative by virtue of s.8 of the Electoral Provisions (Procedure) (Geographical Constituencies) Regulations (L.N. 284 of 1994) ("the Electoral Regulations"). Consequently, the petitioner's nomination paper was only subscribed by 7 subscribers notwithstanding the 15 signatures therein. In the premises, his nomination paper failed to be subscribed by the required number of subscribers, which is 10. The returning officer was adamant in his refusal to withdraw his decision despite pleas from the petitioner. 4. As a result of the declaration of invalidity of the nominations of Yeung and the petitioner, the 2nd respondent being the only other candidate standing for election in the same constituency, was declared elected for the said constituency in a Notice of Nominations published in Gazette Notice G.N.(E.) 1771 of 1994 pursuant to the Boundary and Election Commission (Electoral Procedure) (Geographical Constituencies) Regulations (L.N. 295 of 1994) ("the Boundary Regulations"). 5. By s.30(1)(b) of the Electoral Provisions Ordinance, Cap.367 ("the Ordinance"), an election may be questioned by an election petition on any ground provided by any enactment whereupon an election can be questioned. section 9(7) of the Boundary Regulation provides that the decision of the returning officer that a nomination paper is valid or invalid is final and shall not be questioned in any proceedings whatsoever except by an election petition. In the premises, the petitioner sought, by these proceedings, a determination on :
THE NOMINATION PROCESS 6. The Boundary Regulations came into effect on 30th June 1994. A candidate can only be nominated by the delivery of a nomination paper signed by him and subscribed in accordance with regulations made under the Ordinance. The nomination paper must be submitted to the returning officer, within the nomination period, at the specified address and by the candidate in person or in such other manner as authorized by the Chief Electoral Officer. Section 6 provides the requirements for formal validity of the nomination paper. The nomination paper must state the identity card number, name and residential address of the candidate and each of the subscribers. It must also contain a declaration by the candidate to the effect that he is qualified for nomination as a candidate, that he is not disqualified from being so nominated and that he consents to his nomination as such. It must also contain such other particulars or information (if any) required to be furnished in the specified form. Lastly, it must naturally be signed by each subscriber. 7. The returning officer is entitled to require the candidate to furnish such other information as he considers appropriate to satisfy himself whether the candidate concerned is qualified to be nominated or as to the validity of the nomination. 8. A nomination paper that does not comply with any requirement specified in or made under s.6 shall be invalid (s. 6 (8)). 9. The qualifications for a candidate are to be found in Part IV of the Ordinance. The basic qualification for a candidate is that he is entitled to be registered as an elector (s.18(1)). He must have ordinarily resided in Hong Kong for the 10 years immediately preceding the date of his nomination. A deposit must be lodged in accordance with the Boundary and Election Commission Ordinance, Cap.432 ("the Boundary Ordinance"). The grounds for disqualification do not concern this hearing and are not necessary to be set out here (s.19). 10. The qualification for a subscriber is simple : he must be a registered elector in the constituency in question (s.8 of the Electoral Regulations). THE LEGISLATIVE SCHEME 11. It is clear beyond peradventure that a candidate can only stand for election in one constituency and no more. Section 21(2) of the Ordinance provides :
And s.11 of the Boundary Regulations further provides :
12. Likewise, it is provided in s.8 of the Electoral Regulations that :
13. I am left in no doubt at all that the legislative scheme is that an elector can only stand as candidate in one constituency and subscribe once as a subscriber to a nomination paper in the same election. To cater for those electors who contravene such a restriction, whether intentionally or through inadvertence or ignorance, specific provisions have been made to come to the rescue in a particular manner in one specified situation. That is not to say that the legislature has, by the enactment of such specific saving provisions, permitted more than one nomination or subscription. There does not appear to be any controversy between the parties as to the said legislative scheme. THE APPROACHES 14. Mr Lee for the petitioner urged that the court should adopt a "user friendly" approach in the interpretation of the relevant legislations in that it must be the intention of the legislature to facilitate nominations rather than to strike down nominations. He submitted that it cannot be the legislative intent that nominations that can be saved by a more generous and purposive interpretation should not be so interpreted by the courts. The legislative intent is to cure a mischief and not to create a mischief. In the premises, he submitted that if the legislation can be interpreted to save the validity of a nomination paper such an interpretation should be preferred by the court to one that would render it invalid. I will call this the "user approach". 15. Mr Andrews submitted on behalf of the Attorney General that the proper approach would be to interpret the plain meanings of the legislation. It is only if there is room for ambiguity that the courts should consider the various cannons of construction of statutes to assist in ascertaining the true legislative intent. The court should be astute to any attempt to dictate what should have been legislated rather than to interpret what was legislated. It is not for the courts to legislate but to interpret and enforce the mandate of the legislature. It was submitted that certainty of the validity of a nomination is the corner-stone to an election. The candidates standing for election as well as the voters must be certain as to the validity of a nomination at the close of nomination. There can be no room for any uncertainty in that respect otherwise the consequences would be disastrous. In the premises, it must be the legislative intent that a simple and efficient scheme conducive to certainty in nominations should be devised. This legislative intent must be the guiding force in the interpretation of the relevant legislations. I will call this the "certainty approach". PLAIN MEANING "The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument. The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. This intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not represent the real intention of the Parliament." (Halsbury Laws of England, 4th Ed., vol. 44, at para. 856) 16. The first cardinal rule in the interpretation of statutes has been succinctly summarised in the above statement of the law. It is trite law that the courts are to give the plain and unambiguous meanings of the legislations as they stand rather than to usurp the legislature by attempting to legislate. The exercise is to find out what is the law rather than what ought to be the law. Lord Halsbury L.C. commenced his judgment in the well-known case of Salomon v A. Salomon & Co Ltd [1897] AC 22 at 29 by holding :
17. Lord Watson further held at p.38 that :
18. The House of Lords decision was cited with approval in the subsequent decision of the Privy Council in Commonwealth of Australia v Bank of New South Wales [1950] AC 235. After citing the above passage of Lord Watson, the Judicial Committee further observed at p.307 :
19. The legislative intent as expressed by the plain and unambiguous words in s.8(2) is that an elector can only subscribe one nomination paper in a particular election. Rather than conferring a "right" to subscribe, as submitted by Mr Lee, it is abundantly clear that it is a requirement for the validity of a nomination paper. The requirement is that each nomination paper must be subscribed by different subscribers. I am not convinced that it would be appropriate to describe such a statutory requirement as a "right". It is illusory to speak of a right when an elector cannot force his signature, by any legal process, on a nomination paper against the wish of a candidate. If it be a right at all, it is a right that is dependent on the approval of others. However, even if it can be called a "right", it is clearly the intention that such a "right" can only be exercised once and no more in one election. The only exception created, and thus intended, by the legislation is to be found in s.8(3). That is the only section in the legislations that deals with the situation of multiple subscription by an elector. It provides that "his signature shall be inoperative" on any nomination paper other than the one first delivered. THE REAL INTENT 20. It is Mr Lee's submission that applying the user approach, if a nomination paper on which a subscriber has subscribed becomes invalid for whatever reason, the subscriptions on it will also become invalid. And, it is contended, the "right" to subscribe means to validly subscribe once. If a subscription has become invalid for whatever reason, the elector can subscribe another nomination paper. Such a submission has many fallacies and inappropriate assumptions. It is, as observed above, not a "right" to subscribe that has been created by the legislation; but a requirement for subscription. Even if such a "right" can be established, there is no legitimate reason to insert the qualification of "validly" before the word "subscribe" in s.8(2); so that it becomes "an elector shall not validly subscribe more than one nomination paper as regards a particular election". Mr Lee denies that he was seeking to incorporate such a word into the statute. However, it is abundantly clear that the effect of his submission is to do precisely the same thing. 21. The legislature when intending to insert the word "validly" would do so expressly, as one would expect. The best example is to be found in no other than the election regulations themselves. Section 11 of the Boundary Regulations, when dealing with a similar situation (of multiple candidature by a candidate), expressly stipulated that if he does not withdraw all candidature except one "he shall be deemed to have withdrawn his candidature in all constituencies except the one in respect of which he was validly nominated first in time". What can be more clear than that in ascertaining what the legislative intent is? 22. However, I am in agreement with Lord Diplock in Jones v Wrotham Park Settled Estates [1979]1 All ER 286 when he held at p.289 that :
23. In view of the express provision for "validly" in s.11 of a similar piece of legislation (though found in different regulations), it is clear that the legislature had not committed any inadvertent blunder in respect of s.8. What is the mischief s.8 aimed to cure? 24. I am convinced that the legislative intent in s.8 is to establish a simple, precise, fair and honest system for subscription. In such a system, there is no room for an elector to lend his name more than once to the candidates. Mr Lee said a well-known political or social figure might be approached by more than one candidate and he might be a good fellow who does not know how to say no. He said why than should the candidates be prejudiced. In my view, this is precisely one type of persons that the legislature wished to deal with in the section. There is no reason or logic for such an obliging person to be given multiple chances of subscription. He ought to make up his mind and subscribe once only for the one he genuinely supports. 25. I do not believe it could be the intention of the legislature that a person should be allowed to freely lend his name to anyone that comes his way, or simply to please all potential winners whether for self interest or otherwise. I believe it is the legislative intent that an elector should take his one-only opportunity to subscribe seriously, as election is a most serious affair, and to apply his signature once only. Likewise, all candidates should really know their subscribers well before seeking their signatures on his nomination paper. If a candidate is prepared to obtain a signature of a unfamiliar subscriber for motives such as popularity of the subscriber or similar ulterior motives, and run the risk of a lack of loyalty and good faith from that subscriber (in previously subscribing to another candidate), then he has only himself to blame. An election, though a political creature inevitably infested with all kinds of extra-legal considerations, should still be fair and honest in all respects. A candidate ought to put considerations of trust and faith in a subscriber above considerations of political gain and tactics. If he fails to do so, he can hardly blame anyone. If he cannot even find 10 electors whom he knows he can trust to sign his nomination paper, should he not really reconsider his candidacy? Furthermore, in the latest form of nomination paper, there is room for 15 signatures to cater for a few invalid subscriptions. 26. Mr Lee looked from the point of view of the candidate. But should one not be looking from the position of the subscriber if one is to speak of his "right". Assuming for the sake of argument that such a "right" exists, it stands to reason to assume that when an elector puts his signature as a subscriber to a nomination paper, he intends to subscribe to a valid nomination paper in a valid manner. I do not believe he could be taken to have intended otherwise if he is bona fide. In the premises, I fail to see any possibility for the legislature to have intended that despite that obvious assumed bona fide intent of the subscriber and the known express intent of the legislation that an elector can only subscribed once, a subscriber should be allowed to put his signature on more than one nomination paper intending all his subscriptions to be valid, or only intending one of them to be valid. 27. I am far from saying that the subscribers in question are guilty of any of the "sins" described above. I accept that the subscribers knew of the invalidity of the Yeung nomination paper before they further subscribed on the petitioner's nomination paper. However, giving the statute the interpretation submitted by the petitioner will facilitate the aforementioned undesirable situations. It is not possible to restrict Mr Lee's interpretation to the particular innocent facts of this case unless one further insert words like "bona fide" or "innocently not knowing of any circumstances rendering the first signature still valid and subsisting at the time of subscribing the other nomination paper". That will be legislating and not interpreting the statute. 28. Mr Lee's interpretation included the contention that when a nomination paper has been declared invalid by the returning officer, it is wholly null and void for any purpose. Thus, he submitted, the subscriptions on Yeung's nomination paper (which had been declared invalid) became null and void. He said, in the premises, the subscribers were free to subscribe again for the petitioner's nomination paper as they were to be treated as if they had never subscribed before. I am unable to find merits in such a submission. The nomination paper is divided into 3 different and distinctive sections, each serving a different and unique purpose. Part I provides for the subscription to the nomination paper by the subscribers. The candidate gives his consent and makes his necessary declarations for qualification in Part II. Part III provides for the attestation of the candidate's signature. Would a returning officer's declaration on the express ground of the essential invalidity personal to the candidate necessarily render the other 2 parts of the nomination paper wholly null and void for all purposes. I am not convinced it should have such a necessary effect. Mr Lee said if a document is invalid in law, it is void of any legal effect. I believe that is too general and swiping a statement to make. The law is blessed with all kinds of precedents where this general statement had been rejected. A written agreement that is void as a contract is not necessarily void for all purposes. Representations and declarations made therein can still have full legal effect to found estoppels and claims for misrepresentation. A will that is void as a will may still operate as a wholly valid and effective revocation of a previous will unless it amounts to a conditional revocation. I do not believe it is necessary to go on with the list. I cannot discern such intent as Mr Lee suggested from the statute itself. 29. Section 8 of the Electoral Regulations draws a distinction between a subscriber's signature being inoperative and the invalidity of the nomination paper itself (s.8(3)). The Ordinance speaks of validity of nominations not of nomination paper, the document. Section 9 of the Boundary Regulations, when providing for the power of a returning officer to declare a nomination paper invalid started of by stipulating that the returning officer shall "examine the nomination paper to decide whether the candidate concerned has been validly nominated" (s.9(1)). 30. A nomination paper can be invalid for defects in form or in substance. The essential validity for subscribers and candidates are personal to the individuals concerned and would not depend on the validity or otherwise of others. There is no reason or logic to hold that a nomination paper that is invalidated by the essential invalidity of a signatory should automatically nullify also the validity of other signatories. Particularly, it should be borne in mind that they may only consist of defects that can be rectified under s.9(4) of the Electoral Regulations. I am satisfied that the legislative intent that a subscriber should only subscribe once demands that a subscription on a nomination paper that had been declared invalid on the ground of a lack of essential validity on the part of the candidate should be counted as a valid subscription for the purpose of s.8(2) of the Electoral Regulations. He should be taken to have used up his one and only subscription, whether the nomination of the candidate ceases by reason of death, withdrawal or essential invalidity. 31. Mr Lee also submitted that if a nomination paper is subscribed by more than the required number of persons, the signature or signatures (up to the required number) appearing first on the paper are to be taken into account to the exclusion of any others. In fact, Mr Lee is borrowing the provisions in rule 7(2) of the English election rules to advance this submission. What he contended to be the law is provided expressly in the English rules. However, the draftsman obviously had decided that that should not be incorporated into our own regulations, as it did not find its way into our legislative scheme. Mr Lee attempted to draw support by comparing the old nomination form with the latest version. He said the old forms only provided room for 10 subscribers to sign whereas the new forms provide for 15. He also relies on the demarcation line drawn between the first 10 subscribers and the remaining "spare" 5. I do not accept that such design in the form can achieve what the draftsman and the legislature had deliberately excluded. I am unable to give such significance or legislative effect to the design of the forms as Mr Lee contended. The suggested effect is clearly not intended by the legislators. It will bring complete chaos and havoc to the subscription scheme if the reserved 5 subscribers can be allowed to subscribe more than once on the pretext that he is only the eleventh subscriber on a second nomination paper and if the first 10 subscribers on his first nomination paper are to be accepted as valid subscriptions then he should not be held to have used up his subscription "right". It would mean uncertainty if the validity of a subscription in a nomination paper is to be dependent on the validity of a previous nomination paper or the subscription thereon. One can readily understand the situation of a withdrawn nomination paper or the death of the candidate prior to the second subscription, as these events are unlike to give rise to any contention or dispute over the validity of the first nomination paper. It will be otherwise, if one is considering the validity of the first nomination paper on any possible grounds over its essential and formal validity. The kind of uncertainty such a scheme can bring is too horrific even to imagine. 32. If the validity of a second nomination paper can be dependent on the validity of the first nomination paper, the system can be opened to abuse and unfair practice. It will be dependent on when a returning officer will declare the first nomination paper invalid. A subscriber will never know if he can subscribe again, nor will a candidate know if such a subscription would be valid until it is too late to rectify. A subscriber who was the twelfth on the list in the first nomination paper might suddenly found that his second subscription on a second nomination paper invalid on the eve of close of nomination if the returning officer suddenly declared two of the first 10 subscribers in the first nomination paper invalid thereby advancing his subscription in the first nomination paper to the effective 10. The subscriber might only really wish to support the second candidate and therefore only agreed to put his signature forth as a reserve on the first nomination paper as number 12, thinking that signature would never become effective. A "one signature only" scheme effectively eliminates any kind of suspense of this nature. 33. In the premises, I am sure the uncertainty that will be brought about by Mr Lee's interpretation could not have been the intention of the legislature. The unfairness and injustice which Mr Lee contended would be created by adopting the Crown's interpretation will likewise be brought into being by his interpretation, and probably on a larger scale. The construction that an elector can only subscribe once, irrespective of the validity of that subscription has its beauty in simplicity and certainty, virtues essential to any election system. There is no reason or logic to reuse subscribers in any election, as there can never be any want of subscribers amongst the thousands eligible. Inappropriate and unfair political considerations of using the popularity of subscribers more than once has no place in a fair and honest election. I am convinced that a scheme of "one signature only" cannot be described as unfair in any election. I am left in no doubt that is the scheme our legislators had intended for us. 34. Though accepting that the mischief s.8(3) aims to cure is to save an otherwise invalid subscription, such a purpose should not be allowed to take precedent over the more important and clear mischief aimed to be cure by the general scheme of the legislation i.e. to rid the election of any unwarranted procedural difficulties and uncertainties and to provide for a simple, unambiguous and efficient scheme for an honest election. To adopt Mr Lee's construction would be to cure a comparatively insignificant mischief (if it can be called a mischief at all as there is no need nor justification for any candidate to reuse any subscriber) at the expense of a far larger and more devastating mischief. I note with interest that in the submissions advanced by Mr Lee much emphasis was placed on the "rights" of subscribers and candidates, without any reference made to a far more important aspect of an election - that of honesty and public interest. We must never allow our self-interest to escalate above the public good - a warning politician in particular should bear in mind whether in an election or otherwise. I am wholly satisfied that the Crown's interpretation would eradicate mischieves rather than to create one as the petitioner contended. 35. The Crown's construction can also find support in the English legislations upon which our legislations are modelled. Express provisions can be found in the English election rules that if an elector has signed the nomination paper of a candidate who has died or withdrawn, that elector may then sign a nomination paper of another candidate; the death or withdrawal must, however, have taken place before the delivery of the second paper (rule 7(5)). If "validly" can be implied into similar legislations in England, one fails to see the necessity of making such express provisions. The omission in our regulations of such express provisions cannot be taken as an oversight. Nor can it be regarded as an indication that such express provisions are superfluous. Furthermore, I am not convinced that the learned author's bare assertion in Parker's "Conduct of Parliamentary Elections", 1994 Ed., that "if an elector's signature on one nomination paper is disregarded under rule 7(5)..... he may in that case also validly sign another nomination paper"(para.8.17) is supported by any reason. I am satisfied that the omission is deliberate to limit the situation for statutory rescue to one only; i.e. the nomination paper first in time is to be the one salvaged from the contravention of the express restriction. 36. Mr Lee had abandoned the remaining grounds set out in the petition and the affidavit in support, and I need not deal with them save to make one observation. I find it somewhat regrettable that reliance on a failure to notify the petitioner in time to enable him to take advantage of the correction process possible under s.9(4) of the Boundary Regulations had not been pursued. It appears to me that there being only 3 nomination papers involved in the particular constituency (including Yeung's), it would be relatively easy for the returning officer to notice the defect in question before nomination was closed; though the petitioner's nomination paper was only submitted in the morning of the penultimate day. Whether such an alleged breach of duty to examine the petitioner's nomination paper "as soon as practicable after each nomination paper is received" (s.9(1)), is a material irregularity relating to the election in question covered by s.30(1)(a)(iii) is a matter that could have been decided in these proceedings. As that was not a matter before the court, it did not fall for me to decide. 37. For reasons given above, the first question for determination in this petition must be, and was, answered in the affirmative. The decision of the returning officer in declaring that the nomination paper of the petitioner invalid for want of sufficient subscribers was correct. In the premises, the second question became a hypothetical situation that required no answer. The petition was accordingly dismissed. No costs were sought by the Crown, and the 2nd respondent not having taken any step in these proceedings, no order as to costs was made.
Representation: Mr Martin Lee, Q.C. leading Mr Laurence Ng, inst'd. by M/s Yip & Tse, for Petitioner Mr Robert Andrews, inst'd by A.G.'s Chambers and Miss Jenny Fung, Crown Counsel, for 1st Respondent Wong Yuk Fan, 2nd Respondent, in person (absent) |