Re Legislative Council Election for The Hong Kong Island (East) Electoral College Constituency

HCMP002226/1988

1988 No. MP2226

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon. Liu, Mayo and Jones, J.J. in Court

Dates of hearing: 27th February - 1st March 1989

Date of delivery of the judgment: 8th March 1989

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J U D G M E N T

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1. In 1985, a further step was taken towards the development of representative government in Hong Kong. Election was introduced to a limited number of seats in the Legislative Council.

2. In 1988, 26 were elected to the Legislative Council of whom 12 came from the electoral college constituencies and 14 came from the funtional constituencies.

3. In these proceedings, the Court is called upon to adjudicate on a Legislative Council Election held on the 22nd September 1988 in the Hong Kong Island (East) Electoral College Constituency. I shall call it "the said election". Some 44 days later, on the 5th November 1988, the said election was questioned by an election petition presented under section 29(1)(c) & (d) of the Legislative Council (Electoral Provisions Ordinance.

4. By an order dated the 12th January 1989, the Chief Justice directed that the election petition be entertained by three judges.

5. This is the first election petition presented. Two other election petitions of a similar nature are waiting in the wings.

6. At the said election, Mr Chan Ying-lun was declared by the returning officer Mr Fong Chi Wai, as duly elected by a majority of 21 to 20. It was a contested election with two candidates. The other candidate nominated at the said election was Mr Desmond, Lee Yue Tai, who had the support of the minority vote of 20. In this election petition, Mr Lee is the petitioner, Mr Chan the 1st respondent and Mr Fong the 2nd respondent.

7. At the time of the said election, Mr Lee and Mr Chan were both elected members of the Eastern District Board. One Mr Chow Fung Cheung was then an appointed member of the Eastern District Board. Also at the same time, Mrs Peggy Lam was an elected member of the Wanchai District Board.

8. Mr Lee, Mr Chan, Mr Chow and Mrs Lam were all registered as electors in the Hong Kong Island (Eastern) Electoral College Constituency for the said election at which they all voted.

9. At the time of the said election, Mr Chanand Mrs Lam were on the panel of assessors under the Magistrates Ordinance.

10. After the coming into force of the Money Lenders Ordinance in 1980, an application for a money lender's licence is heard by the licensing court. Prior to the 1st October 1988, the licensing court comprised a magistrate as the presiding member with two assessors. After the 1st October 1988, unless there is no objection to an application by either the Registrar of Money Lenders or the Commissioner of Police, it shall be determined by the same three members, a magistrate "sitting with 2 assessors" as the licensing court. The assessors are drawn from the panel appointed under the Magistrates Ordinance.

11. In November 1980, the Registrar of the Supreme Court consulted persons on the panel of assessors under the Magistrates Ordinance as to whether they would be willing to sit as members of the licensing court. In November 1980, Mr Chan and Mrs Lam were among 137 who accepted the invitation. They have both since sat on the licensing court.

12. At the time of the said election, Mrs Lam was also an adjudicator appointed under section 53F(2) of the Immigration Ordinance. Her last term was to expire on the 28th February 1989, but she resigned on the 6th October 1988.

13. As for Mr Chow, he was an accountant in the employ of the New Zealand Commission at the time of he said election.

14. In this election petition, Mr Lee seeks to unseat Mr Chan by reason of (1) Mr Chan's appointment as an assessor under the Magistrates Ordinance, serving from time to time as an assessor on the licensing court and (2) Mrs Lam's appointments as such an assessor and adjudicator as well as Mr Chow's employment with the New Zealand Commission.

15. Put on a legal basis, Mr Chan is said to have been disqualified from being nominated as a candidate at the said election by he allegedly holding a "Public office" under section 21(1)(b) of the Legislative Council (Electoral Provisions) Ordinance.

16. Section 21(1)(b) of the Legislative Council (Electoral Provisions) Ordinance reads:

''A person shall he disqualified from being nominated as a candidate in an election or holding office as an elected Member if he holds any public office ...... or having held such office has been dismissed therefrom.

17. Mrs Lam is said to have been disqualified from holding the office of an elected member of the Wanchai District Boar and not entitled to vote at the said election by she allegedly holding "public offices" by virtue of section 15(1)(a) and 12(1) of the Legislative Council (Electoral Provisions) Ordinance.

18. Mr Chow is said to have been disqualified from holding the office of an appointed member of the Eastern District Board and not entitled to vote at the said election by he allegedly being "a salaried functionary" of the Government of New Zealand by virtue also of sections 15(1)(a) and 12(1) of the Legislation Council (Electoral Provisions) Ordinance.

Section 15(1)(a) of the Legislative Council (Electoral Provisions) Ordinance is set out below:

"A person registered as an elector shall be disqualified from voting at an election, if that person in the case of an electoral college constituency, has ceased to be an eligible person by reason of that person having ceased to he [an elected or appointed member of Wanchai District Board]".

Section 12(l) of the same Ordinance provides that:

".... a person shall be entitled to vote at an election [of a Member to the Legislative Council) in an electoral college constituency if, and shall not be so, entitled unless, that person is registered as an elector in that constituency."

19. Mrs Lam and Mr Chan are thus said to have been so disenfranchised at the said election by reason of their said alleged District Board disqualification stemming from section 19(1)(a) of the Electoral Provisions Ordinance and section 9(4)(d) of the District Board Ordinance respectively. Mrs Lam has been an elected District Board member, and Mr Chow has been an appointed member. That accounts for the application of different sections.

20. Section 19(1)(a) of the Electoral Provisions Ordinance reads:

"A person shall he disqualified for being elected or being nominated as a candidate or holding office as a [District Board] member if he holds any public office (other than as a member of an auxillary force) ..... or having held such office has been dismissed therefrom."

21. Section 9(4)(d) of the District Boards Ordinance reads:

"A person shall be disqualified form being appointed from being appointed or holding office at an appointed [District Board] member if he is ..... a salaried functionary of a government of [any] place [outside Hong Kong]."

22. Simply stated : Mrs Lam and Mr Chow are said to be disqualified on their respective District Boards and accordingly could not vote at the said Legislative Council Election on the 22nd September 1988.

23. What then is an office and what is a public office? The word "office" has, so said Buckley L.J. in the English Court of Appeal, a wide variety of meanings. See Edwards v. Clinch [1981] Ch.1 at p.5. In McMillan v. Guest [1942] A.C. 561, at p. 566 Lord Wright observed:

"The word 'office' is of indefinite content. Its various meanings cover four columns of the New English Dictionary, ...."

24. It does not follow from these judicial observations that the ordinary meaning of the work "office" is obscure. "office" is not statutorily defined, but its definition as given in the Oxford English Dictionary has been widely accepted. See Edwards"v. Clinch [1982] A.C. 845 at 870 Letters A/B. I gladly allowed myself to be guided by it in the David, Yeung Fuk-kwong case, MP No. 1662 of 1988. Insofar as it is relevant, that dictionary meaning is:

"A position or place to which certain duties are attached, esp. one of a more or less public character; a position of trust, authority, or service under constituted authority; a place in administration of Government, the public service, the direction of a corporation, company, society, etc."

The Shorter Oxford English Dictionary includes:

"In absolute sense : Official position or employment; spec. that of a minister of state."

25. Lord Bridge summed up the three essential characteristics in the Oxford English Dictionary definition as:

(1) "a position to which duties of a public character are attached";

(2) "a position of authority"; and

(3) "a place in administration of Government" [or I may add, in the public service. (Edwards v. Clinch, supra. p.882 Letter A)].

26. Lord Lowry expressed the view that "when we describe (a man) as the holder of an office, we are using the word 'office' not in its ordinary meaning but with a special meaning which the ordinary user of English would not recognise". Nevertheless, the Law Lord regarded this special meaning as being one of its ordinary meanings [not, be it noted, "meaning"]. Edwards v. Clinch, supra 870 Letters E/F - F/G.

27. If "holder of an office" is a limited version of the ordinary meaning of the word "office", "holder of a public office" must have even a narrower scope. For the term "public officer", one should be wary of Lord Goddard's warning sounded in Beeston Stapleford U. D. C. v. Smith [1949] 1 K.B. 656 at p.663:

"To the words 'public officer', different meanings can be given according to the statute in which they occur."

28. Returning to Edwards v. Clinch supra. in their Lordships' House, decided by a majority of 3 to 2, in their dissenting speeches both Lord Bridge and Lord Edmund-Davies would not accept the everyday understanding of the word "office" as would involve a degree of continuance or independent existence. See P.868 Letter H-p.869 Letter A; p.887 Letter H - p.888 Letter A. The word ''office" is, so analysed Lord Edmund-Davies, a proper term for transient posts " 'tailor-made' for people possessing particular talents to discharge tasks of a non-recurring type."

29. Lord Salmon's attack at the proposed adaptation of the dictionary meaning of "office" in the context of revenue legislation reflected the significance he accorded to the nature of duties attached to a position.

Mr Clinch, no doubt, occupied a position to which duties of a public character are attached. So does a dustman. Mr Clinch was in a position of authority. So is a foreman. But neither the dustman nor the foreman can be the holders of an 'office'."

30. It would be all the more important not to lose sight of the duties and functions performed in a "public office", particularly in legislation providing advisers or assistants to an authority.

31. For the present purpose, I can assume, without deciding, that the ordinary meaning of "office" would Involve no continuance or separate existence. But should "Public office" or holder of "public office" be understood in the same sense?

32. In the affairs of government, a new office of emolument is not expected to be created when the matter could be conveniently disposed of without much ado. An office of emolument must be justified by need and in budgetary appropriation. In my view, an office of emolument, a public office, once created, must involve a degree of continuance or independent existence. That would seem to be one of the attributes of a public office in government. Some support for a stricter meaning when a word is further qualified may be derived from Re Chappel, 82 W.N. (Pt.1)(N.S.W) 53 at p.55 where the ordinary meaning of "emoluments" was rejected for the term "emolument of office", though in an employer/employee relationship. In this case, it needs to be constantly remembered that the term under consideration is "public office" in the sense of an "office of emolument under the Crown" and not simply "office".

33. Both the members on the panel of assessors appointed under the Magistrates Ordinance and on the licensing court hold, in my view, not only offices but offices of a continued, not transient existence. Transient or permanent, what is sought to be examined is, whether they hold public offices as defined by law.

34. It can readily be appreciated, therefore, that the ordinary meaning of this everyday word "office" is of peripheral importance. This court is called upon to construe the term of "public office" which is statutorily linked to another term "public officer". The link-up arises in this way:

"Public office", as defined in s.3 of Interpretation and General Clauses Ordinance, "means any office or employment the holding or discharging of which by a person would constitute that person a public officer."

"Public officer" is defined in the same section as "meaning any person bolding an office of emolument under the Crown in he right of the Government of Hong Kong, whether such office be permanent or temporary."

35. What falls to be decided is not just any ordinary office but an office of a public officer, an office of emolument under the Crown, an office in the Hong Kong Government. The question more appropriate to ask is : would that public office paid by the Hong Kong Government involve a degree of continuance or independent existence? I have answered it in the affirmative. What then could constitute public office within such a concept of permanence?

36. As long ago as 1941, in his Third Memorandum to the Select Committee of the House of Commons on Offices or Places of Profit under the Crown, the Bright Honourable Sir Donald Somervell, Attorney Ceneral, reported as follows:

"In considering whether an office is under the Crown, one has to consider who appoints, who controls, who dismisses and the nature of the duties. If the Crown itself has the power of appointment and dismissal, this wold raise a presumption that the Crown controls, and that the office is one under the Crown. If although the Crown appoints, the duties are not duties connected with the public service, the office would not, I think, be an office under the Crown within the Act [The Succession to the Crown Act 1707]. Regius Professors and the Provost of Eton are examples of offices in these categories. If the duties are duties under and controlled by the Government then the office is, prima, facie, at any rate, an office under the Crown ..... "[HC 120 p.136 Third Memorandum in Appendix 1 (1940-41)].

37. Sir Donald's advice to the Select Committee summed up succinctly the meaning of our term of "public office", "an office of emolument under the Crown". He isolated for consideration appointment, control, dismissal and nature of duties, not merely duties. Earlier in time in 1828, Best C.J. spoke of a public officer in these terms : "What constitutes a public officer? In my opinion, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer". Henly v. The Mayor of Lyme, 5 Bing 91 at 107; 130 ER 995, p. 1001. Then in 1914, the Court of Criminal Appeal dismissed counsel's arguments on "public officer r" curtly : "A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public." R. v. Whitaker, [1914] K.B. 1283 at p.1296. From the Commonwealth, in 1960 we have a more recent affirmation of R. v. Whitaker by the Jamaica Court of Appeal, where an unpaid liaison officer corruptly accepted money for showing favour was held to be a holder of a public office and acting as such. Cyril Steward v. R, (1960) 2 W.I.R. 450.

38. Even for the everyday word "office" as opposed to the term "public office" in his dissenting speech in Edwards v. Clinch supra. at p.869 Letter E/F, Lord Edmund-Davies proposed as the proper test the nature of the function performed".

39. Control including dismissal and nature of the duties attached are two of the attributes of the term "public office" derived as well form its ordinary meaning as from features of the statutory context.

40. Persons appointed to the panel of assessors under the Magistrates Ordinance are not being requested to discharge duties or functions on the footing of regular judges or regular officials, like in the case of David Yeung Fuk-kwong (M.P. No. 1662 of 1988) or Lim Ho Kwan (M.P. No.1540 of 1988). Assessors stand on their own appointments. Their attendance is voluntary. An assessor is first to be selected to sit by the Registrar of the Supreme Court. When his selection finally comes, he is quite free to decline to accept the arrangement. However, as Lord Bridge commented in Edwards v. Clinch supra. p.887 H - p.888A, there can be "no sensible reason which would make it appropriate" to draw a distinction for persons performing duties on an occasional basis "according to whether they hold a continuing nominal appoinment in which they act form time to time, or whether their names are on a panel from which they are chosen from time to time and appointed ad hoc to act on each occasion". When an assessor attends and sits with the magistrate, he may not be called upon to give any advice. When asked to assist, he is not obliged to make any contribution. His, refusal or indifference would be without sanction. He had not even been tested on the scope and extent of his supposedly liberal local knowledge. The magistrate would not be inhibited by the assessor's insufficient or lack of expertise. This demand made of him as an assessor cannot be said to be in accord with the true nature of public duties. No control may be exercised over his attendance, his performance or even his assiduity. He cannot be restrained from absenting himself in the course of the hearing. He cannot be sent away or dismissed. He cannot even he disciplined. Any unbecoming behaviour will no doubt be noted. He may not be henceforth selected for sitting by the Registrar and when his term expires, he may not be reappointed. He has a right to give advice to the magistrate. It is not a right that he must exercise. Without him or in his absence, the magistrate may proceed or continue with the proceedings. The magistrate shall not be bound by any of his advice. It cannot be denied that the fees payable to assessors come out of the general revenue. They receive emoluments under the Crown in the right of the Hong Kong Government. Assessors occupy a position to which some duties of a public character are attached. But it is in the nature of such duties and the control of their exercise that the answer is to be found. Further, all the relevant provisions lay emphasis on the likelihood of a dismissal. In the areas of duties, control and dismissal an assessor is decidedly not a public officer. He is not in a position of authority and he is not holding a public office.

41. The assessors appointed to the panel under the Magistrates Ordinance do not serve on any panel under the Money Lenders Ordinance. None has been established under the Money Lenders Ordinance. But once the concept of continuance is accepted for the courts at the magistracies and the licensing court, it really matters not. Mrs Lam and Mr Chan have signified their agreement to sit as assessors in the licensing court. The invitation to sit in a licensing court has not been accepted by the panel of assessors en bloc.

42. I turn next to consider the duties of assessors in the licensing court. The magistrate is the presiding member when he is sitting with two assessors. Each has an equal vote. Evidently, the assessors cannot be expected to deliberate on questions of law or procedure or complex questions of regulations and forms. For matters of this nature, it would be difficult to visualize any situation where the assessors would feel confident or be prepared to override the views expressed by the presiding member, the magistrate. By a later amendment in 1988, the magistrate's ruling on matters of law shall bind the licensing, court. See proviso to section 10(4) Money Lenders Ordinance as it now stands. The assessors have been give equal vote and could technically stultify the efforts of the magistrate as the presiding member. Privileges and immunities have now been explicitly extended to them as members of the licensing court. But in reality, the judicial function they discharge is more of a consultative nature virtually confined to barely controverted facts. Whatever judicial role they pay, it is reasonably clear that their functions are advisory. Similarly, there are no provisions for disciplinary measures or dismissal. As could be seen, adjudicators who exercise far reaching powers in the Immigration Tribunal are inferentially excluded from the "public officer". It would be difficult to accept as the legislative intent any scheme to clothe these assessors with the mantle of public office.

43. After all, in this territory assessors are known to be advisers sitting with a court or an authority. To the man on the Wanchai tram, they are assistants to authorities but are not the authorities themselves. Assessors may be appointed to sit in the High Court. See section 53 of the Supreme Court Ordinance and 0.33 r.2 of the Rules of Supreme Court, whereby a trial may be held "by a judge with the assistance of assessors". Previously it was also possible to have a hearing "by a special referee with or without the assistance of assessors". The District Courts follow the same pattern. See section 58(l) District Court Ordinance which expressly provides that "the decision of the judge shall be the decision of the Court." In Admiralty proceedings, a trial may also be had with an assessor or assessors. See 0.75 r.26, Rules of the Supreme Court. A marine court is "assisted by not less than 2 assessors who shall be" masters or persons of nautical, engineering or other special skill or knowledge." In cases involving cancelling or suspension of a master's, mate's or engineer's certificate, assistance shall be given by no less than 2 assessors "with experience in the British mercantile marine". See Merchant Shipping Ordinance section 52(1) and (2) & Proviso. Persons also serve on the board of review for aircraft accidents as assessors "with aeronautical or aeronautical engineering qualifications or some other special skill or knowledge". See Regulation 13(1)(b) of the Hong Kong Civil Aviation (Investigation of Accidents) Regulations.

44. There are some 309 persons on the panel of assessors. I venture to think no one would be more surprised than our law makers, if it had been suggested to them, many years hence, these provisions of the Magistrates Court Ordinance and Money Lenders Ordinance would be construed as creating some 309 more public offices in our government.

45. In conclusion, Mr Chan Ying Lun was not holding a public office by virtue of his appointment to the panel of assessors under the Magistrates Ordinance, sitting on occasions on the licensing court under the Money Lenders Ordinance. The same applies to Mrs Lam. It has to be borne in mind that in Mrs Lam's case, her status as an elected member of the Wan Chai District Board is being challenged under sect ion 19 (1)(a) of the Electoral Provisions Ordinance. That paragraph ( a) disqualifies a person for being elected or being nominated as a candidate or holding office as such an elected member if he holds any public office or having held such office has been dismisses therefrom.

46. Insofar as Mr Chan's status as an elected member of the Eastern District Board can be call in question, no more need he said. The same principles would apply although Mr Chan's District Board membership is not a live issue.

47. Since November 1980 Mrs Lam has also been an adjudicator of the Immigration Tribunal appointed under section 53F(2) of the Immigration Ordinance. Her term was to expire on the 28th February 1989, but she resigned on the 6th October 1988. Adjudicators are appointed to exercise the jurisdication of the Immigration Tribunal. They may consult a member of panel of advisers to the Immigration Tribunal appointed by the Attorney General in the discharge of their statutory functions. The decision of the Immigration Tribunal on appeal against a removal order shall be final. By section 51(l) of the Immigration Ordinance, the Governor may give directions to any public officer with respect to his exercise or performance of any powers, functions or duties under that Ordinance. These directions must be complied with by the public officer to whom they are issued. By section 53(5), the Governor in Council may vary or revise any decision, act or omission of any public office taken, done or made under the Immigration Ordinance or substitute therefor his own decision or order. But the decision of the Immigration Tribunal on apeal against a removal order shall be final, and the necessary implication is that adjudication may not be so directed. Their deliberations or conclusions cannot be interfered with by the Governor or the Governor in Council; hence they are not public officer. Mrs Lam cannot be, therefore, in any way affected in her capacity of an elected District Board member by she being an adjudicator under the Immigration Ordinance.

48. Mr Chow is a accountant in the employ of the New Zealand Commission. Is he a salaried functionary within the meaning of that term in section 9(4)(d) of the District Boards Ordinance? Is he disqualified as such from being appointed or holding office as an appointed member of the Eastern District Board? "Functionary" is defined in Black's Law Dictionary 5th Edn. as "a public officer or employee. An officer of a private, corporation is also sometimes so called." It is an American law dictionary for "Definitions of Terms and Phrases of American and English Jurisprudence, Ancient and Modern". The 5th edition was published in 1979. Black's definition is concise but without reference to any source. Oxford English Dictionary gives, in my view, a more authoritative treatment to "functionary" which is described as "one invested with a function; one who has certain functions or duties to perform; an official." Mr Chow is not an official of the New Zealand Government. He is an employee. If the Legislature had intended to include an employee, it could have easily said so. It would he absurd to suggest that section 9(4)(d) has the effect of barring a gardener a chauffeur who may be an influential member of one of our labour unions or an in-house lawyer. I take a functionary as an official. Mr Chow does not fall within that category.

49. The petitioner's arguments on alleged disqualifications of Mrs Lam and Mr Chow, have been overtaken by the provisions for time-bar and validation of their acts done under the Electoral Provisions Ordinance and the District Boards Ordinance.

50. By section 26 of the Electoral Provisions Ordinance, an election shall be deemed to be good and valid unless it is questioned by an election petition within two month's after the publication of the list of elected persons. The time bar of two months is final and admits of no extension.

51. After an election, any acts done by an elected member may themselves be challenged under section 26 of the District Boards Ordinance. Again, there is a limitation of six moths from any particular act under complaint.

52. Under section 13 (1) of the Legislative Council (Electoral Provisions) Ordinance, elected members of the District Boards are entitled to be registered as voters at an election to the Legislative Council in their respective constituencies. Section 15(1) of the Legislative Council (Electoral Provisions) Ordinance disqualifies any registered elector from voting when he ceases to be a member of his District Board. In section 20 of the Electoral Provisions Ordinance a distinction is drawn between ceasing to be a member after an election and disqualification as a member at an election. Section 26(2)(a) of the District Boards Ordinance enables the Court to declare that a member's seat is vacant on a complaint that he has acted as a member while disqualified for so acting. Thereupon, pursant to section 14(1)(e) of that Ordinance, the Chairman may publish in the Gazette a notification declaring the office of such a member as vacant. Reference is made to these provisions for the purpose of illustrating that insofar as Mr Lee complains of the disqualification of any registered elector to vote at the said election under section 15(1)(a) of the Legislative Council (Electoral Provisions) Ordinance, there is no evidence that Mr Chan, Mrs Lam or Mr Chow, has ever ceased to be a District Board member.

53. None of the other provisions above has been invoked to call in question, as against these personalities, any alleged disqualifications (section 26 cap. 367) or impropriety in having acted as a member of the District Board while disqualified for so acting (section 26(1) Cap.366).

54. Insofar as it is founded on the alleged invalidity of the election of Mr Chan, Mrs Lam and Mr Chow to the respective District Boards, Mr Lee's petition cannot succeed. These elections are now deemed to be good and valid. In these proceedings, the same could not be reopened; nor could they be legitimately made capital of.

55. Further, section 10 of the District Boards Ordinance renders valid and effectual the acts of these members of the District Boards as if they had been qualified notwithstanding their want of qualification or disqualification PROVIDED that they had acted as such members of the District Boards. Voting or purported voting at the said election, properly or improperly, was obviously an act done in the capacity of a District Board member qua a registered voter. I need not travel far for an example. One is found in Cyril Stewart v. R, supra at p.452 Letters D/E and I. In that case, an unpaid liasion officer to a District Committee corruptly received £7 for showing, favour. It was debated as to whether he was a public officer. The Jamaica Court of Appeal regarded the culprit as having acted in his capacity of a liaison officer. It was observed that "to bribe that officer to act contrary to his duty (was) a criminal act". Section 10 has, in my judgment, put a seal of validity on the votes cast by these personalities.

56. In conclusion, Mr Chan was not in any way disqualified by reason of his appointment to the panel of assessors under the Magistrates Ordinance, serving ad hoc in the licensing court constituted under the Money Lenders Ordinance. The validity of the elections of Mr Chan, Mrs Lam and Mr Chow to the respective District Boards s cannot now be impugned elsewhere, and the matter should not be ventilated in this Court. Moreover, voting, at the said Legislative Council election by Mr Chan, Mrs Lam and Mr Chow is valid and effectual under s.10 of the District Boards Ordinance.

57. The assertions of Mr Lee therefore wholly fail. Pursuant to section 35 of the Legislative Council (Electoral Provisions) Ordinance, subject to what counsel have to say this Court would certify its determinations as follow:

(1)    that the decision of Mr Fong Chi-wai, the returning officer, as to the validity of the nomination of the said Chan Ying-lun as a candidate in the said election is correct; and

(2)     that the said Chan Ying-lun whose election at the said election is questioned was duly elected a Member of the Legislative Council on the 22nd September 1988 in the Hong Kong Island (East) Electoral College Constituency.

58. We make an order nisi for costs in favour of the 1st respondent. Mr Li for the 2nd respondent has very kindly informed us that the Attorney would not be seeking any order of coats for his effort to assist the Court on the interpretation of legislation in matters of paramount constitutional importance.

Mayo, J:

59. This is and Election Petition. The Petitioner and the 1st Respondent were nominated as candidates in the Legislative Council Election held on the 22nd of September 1988.

60. They were both elected members of the Eastern District Board on the 10th of March 1988. It was in this capacity that they became candidates for nomination.

61. Hong Kong Island (East) Electoral College Constituency consists of members of the Eastern and Wanchai District Boards who are not members of the Urban and Regional Councils.

62. At the said election the 1st Respondent was elected to the Legislative Council. He received 21 votes and the Petitioner received 20 votes. The 2nd Respondent was the Returning Officer.

63. The Petitioner filed the Petition on the 5th of November 1988 and amended it on the 1st of December 1988.

64. In the Petition the Petitioner is seeking a determination 1st Respondent was disqualified under Section 21 of the Legislative Council (Election Provisions) Ordinance Chapter 381 and that he was duly elected at the Election.

Section 21 (1) of Chapter 381 reads:

"21. (1) A person shall be disqualified from being nominated as a candidate in an election or holding office as an elected Member if-

(a) in the case of a functional constituency, he has ceased to have a substantial connexion with that constituency;

(b) he holds any public office or any office of emolument in the gift or disposal of a public body or any committee thereof or having held such office has been dismissed therefrom;

(c)    he has in Hong Kong or any other place been sentenced to death or imprisonment (by whatever name called) for a term exceeding 3 months and has not either suffered the punishment to which he was sentenced or such other punishment as may by competent authority have been substituted therefor or received a free pardon;

(d) he has been convicted of treason:

(e) he is a member of any parliament, assembly or council, whether central or local, of any place outsider Hong Kong or a salaried functionary of a government of such place;

(f)    he is an undischarged bankrupt or, within the previous 5 years, he has either obtained his discharge in bankruptcy or had entered into a composition with his creditors, in either case without paying his creditors in full;

(g)    without prejudice to paragraph (c), where the election is to be held or is held within 10 years from the date of his conviction he has been convicted -

(i) of any offence in Hong Kong or any other place in respect of which he has been sentenced to imprisonment, whether suspended or not, for a term exceeding 3 months without the option of a fine;

(ii)    of a corrupt practice or illegal practice within the meaning of the Corrupt and Illegal Practices Ordinance, other than the illegal practice consisting of a contravention of any of the provisions of section 19(2) of that Ordinance, or of a corrupt or illegal practice within the meaning of any other enactment providing for the punishment of corrupt or illegal practices;

(iii)    of any offence under the Prevention of Bribery Ordinance; or

(h) on the date of his nomination or of the election he is serving a sentence of imprisonment."

65. The complaint which is made by the Petitioner is two fold.

66. The first complaint is that the 1st Respondent held a public office in contravention of Section 21(1)(c above. He claimed that the 1st Respondent held a public office by virtue of his appointment as a Lay Assessor pursuant to Section 7A(2) of the Magistrates Chapter 227.

67. The second complaint was that 2 of the members of the Electoral College Mrs. Peggy Lam and Mr. Stephen Chow who had cast votes at the said election were disqualified from doing so. Mrs Peggy Lam who was an elected member of the Wanchai District Board was both a Lay Assessor and an Adjudicator of the Immigration Tribunal. This was contrary to the provisions contained in Section 19 (1) (a) of the Electoral Provisions Ordinance Chapter 367 which state:

"19(1) A person shall be disqualified for being elected r being nominated as a candidate or holding office as a member if he -

(a)    holds any public office (other than as a member of an auxiliary force) or any office of emolument in the gift or disposal of the Urban Council, or of the Regional Council, or any committee thereof or having held such office has been dismissed therefrom."

68. The complaint against Mr. Chow is that he is a salaried functionary of the New Zealand Commission. This, it is claimed, is contrary to Section 19(1)(e) which excludes any person who is:

"19. (1)(e) a member of any parliament, assembly or council, whether, central or local, of any place outside Hong Kong or a salaried functionary of a government of such place."

69. I will deal with the 1st complaint first.

70. The question which has to be considered is whether a Lay Assessor is the holder of a public office such as to come within the disqualification contained in Section 21(1) of Chapter 381.

71. Lay Assessors discharge two different types of duty. The first is that they sit with Magistrates and are entitled to give them advice.

S.7A, B & C of the Magistrates Ordinance, Chapter 227 provides:

"7A. (1 A magistrate may hear and determine any proceedings, either wholly or in part, with the advice of one assessor selected by the Registrar of the Supreme Court from the panel of assessors referred to in subsection (2).

(2) For the purposes of subsection (1), the Chief Justice shall, after consultation with the Secretary for Home Affairs, appoint a panel of assessors and shall fix the fees which shall be paid to an assessor for his services.

(3) Notice of appointment of any person to the panel of assessors shall be published in the Gazette.

(4) The Chief Justice may give directions concerning the hearing and determining of any proceedings heard with an assessor.

7B. If at any time before the determination of any proceedings heard with an assessor, the assessor is prevented from attending the proceedings or absents himself, the magistrate may continue to hear the proceedings in his absence.

7C. (1) Were magistrate hears and determines any proceedings with an assessor, the assessor shall have the right to give advice to the magistrate.

(2) In determining any proceedings a magistrate shall not be bound by any advice given by an assessor."

72. It will be noted from this that there is a panel of Lay Assessors As and when their services are needed, they are invited by the First Clerk of the Magistrates Court to attend. The First Clerk extends the invitation by virtue of power delegated to him by the Registrar, Supreme Court. The Lay Assessor's function is a limited function. It is to advise Magistrates on local circumstances and conditions. The Magistrate is under no compulsion to accept any advice which is tendered and no statutory duties are imposed on Lay Assessors. I have no doubt that at the very least there would be some moral obligation or duty for them to draw the Magistrates' attention to various aspects of proceedings before them, if they felt that this was necessary or desirable. Equally I have no doubt that most if not all Lay Assessors would conscientiously perform their functions when they sit as Assessors and that their advice would be of great assistance to Magistrates.

73. According to the affidavit evidence of Mr. Betts, the Registrar of the Supreme Court, Assessors would only sit a few times every year. There are at the present time 309 persons on the panel, of Lay Assessors.

74. The second function exercised by Lays Assessors is to sit on a Licencing Court when applications are made by persons applying for a Money Lenders Licence. The position concerning these functions s described by Mr. Betts in paragraphs 8 and 9 of his affidavit:

"8. With the introduction of the Money Lenders Ordinance (Cap. 163) that came into force in January 1981 any person who wishes to carry on a money-lending business has to apply for a licence. Prior to the amendment of the Ordinance that cane into operation on the 1st October 1988, the Licensing Court consisted of a magistrate and 2 assessors drawn from the Panel of Assessors appointed under the Magistrates Ordinance. Since the amendment, where there is no objection by either the Registrar of Money Lenders or the Commissioner of Police to an application, the Licensing Court consists of a magistrate sitting alone to determine the application. Otherwise, the Licensing Court shall consist of a magistrate and 2 assessors as aforesaid. Assessors are given an equal vote with the Magistrate and where there is a difference of opinion, the majority decision will prevail. Thus, assessors have been given an extended role in this area in that they will take part in the decision-making process. There is now produced and shown to me marked 'JB-4' copy of a letter to all lay assessors enquiring whether they would wish to sit as an Assessor in a Licensing Court as well. From my records, Michael CHENG did not accept this invitation while both CHAN Ying-lun and Peggy LAM accepted in November 1980 and have since sat on the Licensing Court.

9. About 137 assessors have agreed to sit on the Licensing Court the administrative arrangements for assessors to sit on the Licensing Court are also dealt with by the First Clerk of North Kowloon Magistracy. What is set out in para 6 above applies similarly to sitting on the Licensing Court. The number of sittings undertaken by assessors for 1986-88 ranged from 0-4 sittings per annum, averaging approximately 1.1 sittings per assessor per annum. The usual length of a sitting is less than half a day."

75. From this it will be seen that the Lay Assessors do assume an active role in the proceedings when hearing such applications.

76. I think that it could fairly be said that in each case the functions which are exercised by Lay Assessors are of a transient nature. Probably the duties which are performed in relation to the applications for Money Lending Licences are the most substantial and it is right to consider these in determining whether the functions exercised by Lay Assessors sufficient to constitute a public office such as is contemplated by Section 21.

77. I do not think that much difficulty arises concerning the construction of the section. Certainly I do not think it is necessary in the context of this litigation to consider the background of the circumstances leading to the introduction of the legislation. All that we are required to do is to decide whether the duties and functions of Lay Assessors, as I have described them, are such as to amount to a public office.

78. The best Way of considering this is to have regard to how the courts have dealt with this question.

79. Best C.J. had this to say at p.1001 of Henly v. The Mayor of Lyme, 5 Bing 105-995:

" Then, what constitutes a public officer? In my opinion, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer.

Bishops, certainly, are paid by the crown, not in money, but by estates which have been granted to them; and in consequence of the grant of such estates certain duties have been imposed on the bishops; such, for instance, as holding ecclesiastical courts. Does any man doubt, if a bishop, by neglect to hold an ecciesiastical court, prevents an individual from obtaining probate of a will, by which he sustains an injury, an action might be maintained against such bishop for the consequence of that neglect? Clergymen are public servants to a certain extent, although undoubtedly they are not paid by the public. The emoluments which they receive have not been derived from the public; they have been derived from the owners of particular lands, who have [108] endowed them with the glebe or tithes which they possess; yet they have duties cast on them as the consequence of the tenure of those of those lands and tithes, such as, for instance, to administer the sacrament; and it has been decided, that if a clergyman refuse to administer the sacrament to a man who is thereby prejudiced in his civil rights, an action is maintainable against the clergyman. So if a clergyman were to neglect to register a person brought to be baptized, and in consequence of that, such person should lose an estate, does any man doubt an action could be maintained against him? If the Rank of England, refuse to transfer stock, an action may be maintained against them.

Lords of manors hold courts, which courts they are obliged to hold, as one of the considerations on which the lands have peen granted to them. If a lord of the manor were to refuse or neglect to hold a court, by which a copyholder should be prevented from having admission to his copyhold, does any man doubt an action, could be maintained against such lord?

It seems to me that all these cases establish the principle, that if a man takes a reward, -  whatever be the nature of that reward, whether it be in money from the crown, whether it be in land from the crown, whether it be in lands or money from any individual, - for the discharge of a public duty, that instant he becomes a public officer; and if by any act of negligence or any act of abuse in his office, any individual sustains an injury, that individual is entitled to redress in a civil action. If that be so, then it is quite clear that the Plaintiff in this case is entitled to maintain this action. The Plaintiff may say to the corporation, "you have a compensation from the crown for discharge the duty which you have neglected to discharge; and in consequence of that neglect I have sustained an injury; I am, therefore, entitled to have a compensation form you."

80. In considering this passage it is necessary to bear in mind that Lay Assessors receive no financial reward for having their names included in the panel of Assessors. The payment they receive whatever it is described as being, relates to the occasions when they actually sit as Assessors.

81. In this connection some assistance can be derived from the judgment of Asprey J. at page 54 of Re Chapple 1964 82 WN Part I NSW 53:

"Section 3(1) of the Superannuation Act provides that, in that Act, unless inconsistent with the context or subject matter, "salary" means salary or wages and includes value of allowances such as rent, house allowed rent free, light, fuel, rations, and fees allowed regularly as emoluments of office, but does not include bonuses, overtime payments and allowances for forage, equipment climatic disadvantages or travelling expenses". In the argument before me the question was whether the fees received by the appellant as Treasury representative on the Grain Elevators Board of New South Wiles were fees "allowed regularly as emoluments ofoffice" an this argument was divided into two sub-questions: firstly, whether such fees were allowed "regularly" and, secondly, whether such fees were "emoluments of office".

This reference raises problems of construction of some difficulty and I must confess that my mind has wave red this way and that as to what should be the correct answer to the matters which I have been asked to consider, but I have now come to a firm conclusion which I will now state. So far as the first question is concerned, namely, whether the amounts received by the appellant were fees "allowed regularly", I have come to the conclusion that this question should be answered in the affirmative. The word "regularly" when used in relation to the payment of a sum of money may, in particular contexts, bear different meaning as, for instance, it may partake of the quality of validity or of punctuality or of some orderly sequence of payment. In its context in the definition of salary in s.3(1) of the Superannuation Act it appears to me that the word "regularly" connotes not the legal justification or validity or punctuality of the payment of the sums in question but the periodicity of their payment. I have looked at the definition of the word "regular" in the third revised edition of the Shorter Oxford English Dictionary, but the definitions therein contained do not, in the circumstances under review, appear to me to offer much assistance in the solution of this question, for those definitions merely serve to illustrate the different shades of meaning which can attach to the word even in relation to the quality of periodicity. Where the language of a "regularly" enactment is susceptible of more than one construction, regard must be had to the general object and purpose of the statute in which such language is contained for a guide to its true construction. In view of the conclustion to which I have come in relation to the second question and which will determine this matter I do not think any good purpose would be served in discussing in detail the various provisions of the Superannuation Act which, in my view, beat upon the true construction of the word "regularly" and I will content myself by merely observing that by the definition of "salary" it will be noticed that salary includes not only salary and wages in the usual form but, also the value of allowances, specific instances of which are stated in the definition; but, as those specifically named allowances are preceded, by the words "such as", it is clear that the items named as allowances do not constitute a comprehensive list of allowances and are merely examples and I would think that items other than those a named may be fairly included under the heading of allowances if they were fairly analogous to those which are specifically named. I have drawn attention to this aspect of the definition for the reason that it would appear to me that these items of allowances are such as are capable of being granted fort temporary occasions and indeterminate periods and accordingly I take the view that this consideration sheds light, upon the meaning of the word "regularly" in the definition. I think that in the context of the definition of "salary" in s.3(1), where a payment is made to a person for the performance of duties attached to an office, provided always that there is at any rate some constancy or continuity in the performance of that office, it can be said correctly that the fees paid to him for the performance of those duties are fees regularly paid or allowed despite the fact that the performance of the duties in respect of which the fees are paid or allowed are not performed on a precise, periodic day, week, month or other interval and that the quality of regularity is satisfied if, whenever the duties of the office are performed, the payment of the fees is made. An analysis which I have made of the meetings held and of the fees paid appears to me to meet that situation. Hence I would be of the opinion that the fees are "allowed regularly" within the meaning of the definition."

82. One of the factors weighed by Asprey J. was the regularity of the payment. It is evident that the service of Lay Assessors is largely dependent upon the dictates of convenience and there is nothing in the evidence before us to suggest that there is any regularity in the attendances.

83. I have not doubt that when Lay Assessors do perform their duties they are discharging a public duty. The problem which arises is the lack of frequency of their attendances.

84. This type of difficulty was considered in Edwards v. Clinch 1982 AC 845. In his speech at page 883 Lord Bridge said:

"In Great Western Railway Co. v. Bater [1920] 3 K.B. 266 (Rowlatt J.); [1921] 2 K.B.128 (Court of Appeal); [1922] 2 A.C. 1 (House of Lords) the railway company had been assessed to tax in respect of the salary, of a clerk in the company's employ. The Income Tax Act 1860. section 6, made the employing company liable for" ... duties payable under Schedule (E.) in respect of all offices and employments of profit, held in or under any railway company, ... " As your Lordships' House eventually held, Lord Buckmaster dissenting, this provision, on its true construction only applied to offices and employments having the necessary public character to bring them within Schedule (E.) of the Act of 1842 and the ratio of the decision was that the employment of the clerk in quest on lacked that attribute. But the importance of the case for present purposes is in the observations of Rowlatt J. at first instance and of Lord Atkinson in this House. To appreciate their true significance it is necessary to cite the relevant passages at some length. Rowlatt J. said, at pp. 1273-274:

"But it is contended, and this is the real point in the case that this man Hall is not the holder of an office or employment of profit at all. It is said that he is just one of a number of clerks. I gather that is the point, although it is not specifically so stated in the case before me. It is said that the position which he holds is not the sort of office that is referred to in this Schedule, and it is pointed out that under rule 1 of Schedule (E.) in the Act of 1842 the assessment is to be made for a year in respect of the office, and that it shall be inforce for a whole year and levied without any new assessment, notwithstanding a change has taken place in the office or employment, on the person having or exercising the same. In this case that would not have effect, because the assessment would be on the railway company. Then it is pointed out that in the case of a man dying or leaving the office he is responsible for the proportion of arrears of the proportionate part of the current year. It is argued, and to my mind argued most forcibly, that that shows that what those who used the language of the Act of 1842 meant when they spoke of an office or an employment of profit was an office or employment which was a subsisting, permanent substantive position, which had an existence independent of the person who filled it, and which went on and was filled in succession by successive holder, and that if a man was engaged to do any duties which might be assigned to him, whatever the terms on which he was engaged his employment to do those duties did not create an office to which those duties were attached; he was merely employed to do certain things and the so called office or employment was merely employed to do certain things and the so called office or employment was merely the aggregate of the activities of the particular man for the time being. I myself think that that contention is sound, but having regard to the state of the authorities I do not think I ought to give effect to that contention. My own view is that Parliament in using this language in 1842 meant by an office a substantive thing that existed apart from the holder of the office."

Lord Atkinson, quoting the important provisions of the first rule under Schedule in the Act of 1842, comments on them as follows [1922] 2 A C. 1, 14-15:

"That is, the tax for the year shall be assessed upon the person holding the office or exercising the employment at the time the assessment is made. A proviso is then introduced adjusting, when the change contemplated has taken place, the burden of the tax between the persons who together have filled the office or exercised the employment during the entire year of assessment ... Thus the entire year of assessment seems to be treated as a unit of service, and the salary as a unit of recompense, not an aggregate of a number of smaller sums payable at, different times, and each recompensing the service rendered during an independent fraction of the year. Again, the word 'successor' is very significant. It seems to indicate continuity of the office or employment, and also to indicate the existence of something external to the person who may hold the one or exercise the other. Employment of profit, if it be not identical with office, is thus treated as something closely akin to it. I fully concur in the opinion happily expressed by Rowlatt J. in the following passage of his judgment: ...

And he quotes from the passage I have already cited, beginning at the words "It is argued, ..." [1920] 3K.B. 266, 274.

It is especially to be noted that the opinion of Rowlatt J., endorsed by Lord Atkinson, that what was required under Schedule (E.) of the Act of 1842 was "... a subsisting, permanent, substantive position, which had an existence independent of the person who filled it, ..." applied alike to an office or employment. It is also clear, to my mind, that they were constrained to this opinion solely by the language of the rule on which they expressly relied."

85. While I realize Lord Bridge was commenting on a rather artificial taxation point I am satisfied that the observations made do indeed have application to the present case.

86. Assistance can also be derived from a consideration of other legislative provisions.

87. "Public Office" is defined in the Interpretation and General Clauses Ordinance Chapter 1. There it is said to mean ... "any office or employment the holding or discharging of which by a person would constitute that person a public officer".

88. A "Pubic Officer" is treated synonymously with a Public Servant. The definition state " 'a Public Officer' and 'a Public Servant' mean any person holding an office of employment under the crown in right of the Government of Hong Kong, whether such office be permanent or temporary".

89. There is nothing there which is at variance with any of the judgments I have referred to.

90. I think it is illuminating also to consider other situations where members of the Public perform statutory duties.

91. It is clear to me on considering Part IX of the Immigration Ordinance Chapter 115 as a whole that Adjudicators who sit on Immigration Tribunals are not regarded as being "Public officers". His Excellency the Governor is only empowered to give directions to Public Officers and is unable to give directions to Adjudicators. I am satisfied that this is a correct way of interpreting the legislation because any other interpretation would render the function of Adjudicators to be almost meaningless.

92. Also I can see no satisfactory reason in this context for differentiating the services of Lay Assessors from those of Jurors.

93. Both Lay Assessors and Jurors are drawn from Panels. They only perform their duties when they are selected to do so. The fact that Lay Assessors have been appointed to their Panel does not seem to me to materially affect the position.

94. I don't think anyone has seriously suggested that all Jurors are "Public Officers".

95. I will next consider the position of District Board members. Some of them are appointed. They perform a variety of duties and like Lay Assessors receive remuneration for their services. I am not aware of anyone contending that all appointed District Board members are "Public Officers".

96. Indeed in this connection Mr Denis Chang for the 1st Respondent very helpfully in a skeleton argument set out the relevant provisions in The Regional Council Ordinance, The District Boards Ordinance and The Urban Council Ordinance and it is abundantly clear that a distinction is made between "Public Officers" and members of the various Boards or Councils.

97. Whatever criteria is adopted I can see no justification for regarding Lay Assessors as being " Public Officers".

98. Mr. Rogers for the Petitioner gave us what he described as being a graphical illustration of the illogical situation which would pertain if Lay Assessors are not regarded as being "Public Officers" He said that when they were discharging their duties applications for Money Lending Licences they may be sitting with a Temporary Magistrate. They cast a vote in the same way as the Magistrate would. For all practical purposes they are assuming an identical role. It would accordingly be highly anomalous for the Magistrate to be regarded as a "Public Officer" and the Lay Assessors not to be so regarded.

99. I disagree with Mr. Rogers. When you consider they position of the Temporary Magistrate it is unrealistic to only have regard to the functions he exercises when sitting on Money Lending Licence applications. You have regard to the totality if his duties. When dong this I do not think that there is any anachronism.

100. However the position is regarded I am satisfied that Lay Assessors as such cannot be regarded as "Public Officers" so as to the provisions contained in Section 21 of Chapter 381.

101. What Lay Assessors do when they sit in court with Magistrates or exercise their functions relating to moneylenders is to perform a public service. The remuneration they receive is payment for this service. The Petition cannot succeed on the first ground.

102. I will now consider the second complaint.

103. Mr. Rogers places reliance upon the provision contained in Section 15(1) of Chapter 381. This reads:

"15. (1) A person registered as an elector shall be disqualified from voting at an election, if that person -

(a)    in the case an electoral college constituency, has ceased to be an eligible person by reason of that person having ceased to be a person specified in the second column of the First Schedule; or

104. It is common ground that Mrs. Lam arid Mr. Chow's names are in the second and third columns of the second Schedule referred to.

105. The question which has to be considered is whether they have ceased to be "eligible persons".

106. It is noteworthy to observe that neither Mrs. Lam nor Mr. Chow have been made parties to this Petition. We are being invited to make determinations which will undoubtedly affect them and they have been given no opportunity of placing before us any representations.

107. Mr. Rogers informed us that the reason why "Mrs. Lam and Mr. Chow had not been made parties was that there was no provision for this under the legislation.

108. It may well be the case that it is no accident that the legislature has not provided for this. The Petitioner can only succeed on the second ground if he is allowed to attack the title of Mrs. Lam and Mr. Chow to cast their votes.

109. It is perhaps not surprising that no provision is made for this under the legislation. I say this because there is a clearly defined alternative route for such an attack to be mounted. I refer to Part VI of the Electoral Provisions Ordinance Cap.367.

110. The Petitioner is precluded from proceeding under Part VI by virtue of the provisions contained in Section 35 of the Ordinance. This section provides a time bar of 2 months.

111. The Petitioner has no prospect of success in lodging a Petition to disqualify either Mrs. Lam or Mr. Chow as District Board members.

112. Before us Mr. Rogers submitted that he was not attempting to disqualify either Mrs. Lam or Mr. Chow. All that he was seeking to do was to establish that they had had no right to cast the votes they had cast at the election.

113. I am afraid that this will not do. Mrs. Lam and Mr. Chow are either disqualified or they are not disqualified. There is no provision made for a half way house. In the absence of an election Petition being successful under Part VI Mrs. Lam and Mr. Chow remain members of the Board and are fully entitled to cast votes as is provided for in the legislature.

114. The position of Mrs. Lam and Mr. Chow is further reinforced by the provisions contained in Section 26 of Chapter 367 which reads as follows:

115. Even if this were not the case I am satisfied that Section 10 of the District Board Ordinance Chapter 366 which reads:

would cover the position.

116. For the reasons I have given I am satisfied that the Petitioner cannot succeed on the second ground. This being the case this Petition must be dismissed.

Jones J

117. Since the Legislative Council (Electoral Provisions) Ordinance came into operation on the 6th April 1985, there has been a limited right of election to some of the seats in the Legislative Council from Electoral College Constituencies and Functional Constituencies. One of the Electoral College constituencies is the Hong Kong Island (East) Electoral College constituency which consists of all the appointed and elected members of the Eastern District Board and the Wanchai District Board with the exception of members of the Urban Council and Regional Council. The petitioner Mr Desmond Lee Yu- tai (Mr Lee) and the 1st respondent Mr Chan Ying-lun (Mr Chan) are elected members of the Eastern District Board. Mr Chow Fung-cheun (Mr Chow) is an appointed member of the Eastern District Board whilst Mrs Peggy Lam (Mrs Lam) is an elected member of the Wanchai District Board.

118. Mr Lee and Mr Chan were the only nominated candidates for the constituency of the Hong Kong Island (East) Electoral College constituency for the Legislative Council election that was held on the 22nd September 1988. In their capacity as District Board members, Mr. Chow and Mrs Lam were registered electors of the constituency at the election and voted. Mr Chan was declared to be the winner of the election by a majority of 21 votes to 20.

119. By an election petition presented on the 5th November 1988 as amended by an order of Nazareth J. made on the 29th November 1988, Mr Lee seeks al declaration that Mr Chan was, at the time of the election, by virtue of section 21(1)(b) of the Legislative Council (Electoral Provision) Ordinance, disqualified from being nominated as a candidate as he was the holder of a public office being an assessor appointed under the Magistrates Ordinance. It is also alleged that Mr Chow was ineligible to vote by virtue of section 9(4)(d) of the District Boards Ordinance for he was employed as a salaried functionary by the New Zealand Commission whilst Mrs Lam was disqualified under section 19(1)(a) of the Electoral Provisions Ordinance as she was the holder of a public office, viz an adjudicator of the Immigration Tribunal and an assessor appointed under the Magistrates Ordinance. Mr Lee therefore contends that he should have been elected as the member for the constituency instead of Mr Chan or, in the alternative, that the election should be declared void.

120. Section 21(1) (b) of the Legislative Council(Electoral Provisions) Ordinance provides:-

21. (1) A person shall be disqualified from being nominated as a candidate in an election or holding office as an elected Member if -

(b)    he holds any public office or any office of emolument in the lift or disposal of a public body or any committee thereof or having held such office has been therefrom;"

Section 9(4)(d) of the District Boards Ordinance provides :-

"9. (4) A person shall be disqualified from being appointed or holding office as an appointed member if he -

(d) is a member of any parliament, assembly or council, whether central or local, of any place outside Hong Kong or a salaried functionary of a government of such place;"

"Public office" is defined in section 3 of the Interpretation and General Clauses Ordinance as follows:-

"Public Office means any office or employment the holding or discharging of which by a person would constitute that person a public officer."

"Public Officer" and "Public Servant" are defined in the same section as follows:-

"Public Officer' and 'Public Servant' mean any person holding an office of emolument under the Crown in right of the Government of Hong Kong, whether such office be permanent or temporary."

Section 19(1)(a) of the Electoral Provisions Ordinance reads:-

"19. (1) A person shall be disqualified for being elected or being nominated as a candidate or holding office as a member if he -

(a) holds any public office (other than as a member of an auxiliary force) or any office of emolument in the gift or disposal of the Urban Council, or of the Regional Council, or any committee thereof or having held, such office has been dismissed therefrom;"

121. The system of assessors was introduced in 1978, the enabling provision being section 7A of the Magistrates ordinance which provides:

"7A. (1) A magistrate may hear and determine any proceedings, either wholly or in part, with the advice of one assessor selected by the Registrar of the Supreme Court from the panel of assessors referred to in subsection (2).

(2) For the purposes of subsection (1), the Chief Justice shall, after consultation with, the Secretary for Home Affairs, appoint a panel of assessors and shall fix the fees which shall be paid to an assessor for his services.

(3) Notice of appointment of any person to the panel of assessors shall be published in the Gazette.

(4) The Chief Justice may give directions concerning the hearing and determining of any proceedings heard with an assessor."

122. The object of the assessor system, which is purely voluntary and depends upon the availability and willingness of the persons selectedto sit, is to provide advice to a magistrate from a local member of the community who understands Cantonese and English. The role of the assessor is purely advisory and the magistrate is not obliged to accept any advice that may be given. An assessor has no power to participate in the proceedings so that he has no power in the decision making process. On the other hand, both an adjudicator under the Immigration Ordinance and a member of the Licensing Court have a vote. Under the Immigration Ordinance, two adjudicators sit to hear appeals under section 53A of the Ordinance against removal orders made by the Director or Deputy Director of Immigration. The Licensing Court consists of a magistrate and two assessors who are concerned with licensing applications under the Money Lenders Ordinance. In the Licensing Court, the assessors have a right to participate in the proceedings with the result that they can exercise a majority vote against the magistrate. Assessors are paid $50 per clay for each day be sits whilst a member of the Licensing Court will receive $450 per day. An adjudicator in the Immigration Tribunal receives $250 per day.

123. Mr Chan was selected to be placed upon the panel of assessors in 1980 and has since sat on 26 occasions whilst Mrs Lam, since she was appointed to the panel in 1979, has sat on 28 occasions, so that both she and Mr Chan have sat on an average of about three times a year. Mrs Lam has sat as an adjudicator of the Immigration Tribunal on average about ten times a year since 1985 and received $250 on each occasion. Both Mr Chan and Mrs Lam have also sat in the Licensing Court, Mr Chan having sat for 12 days since 1981 and Mrs Lam 9 days since the same year. It is therefore clear from the evidence that attendances are only occasional.

124. With regard to the definition of a "public officer" a number of authorities were cited by counsel. However, in my judgment, the meaning is perhaps best encapsulated in Edwards v. Clinch [1982] A. C. 845 where the House of Lords were concerned with a tax case. The headnote in that case reads as follows:-

" Section 181 of the Income and Corporation Taxes Act 1970 provides:

(1) The Schedule referred to as Schedule E is as follows:- Schedule E 1. Tax under this Schedule shall he charged in respect of any office or employment on emoluments therefrom which fall under one, or more than one, of the following cases....'

The taxpayer, a chartered civil engineer was one of a panel of persons whom the Department of the Environment invited from time to time to hold public local inquires into matters for which the Secretary of State for the Environment was responsible. When he accepted an invitation to undertake such an inquiry he would receive a daily fee together with a travelling and subsistence allowance. He had discretion whether to accept or refuse any invitation to hold an inquiry. Before 1973 he was assessed to income tax under Schedule D in respect of all such fees he received, but thereafter the revenue decided to change their practice and assessed him under Schedule E, thus bringing him within the provisions and regulation for P.A.Y.E. deductions. On the taxpayer's appeal against assessments made under Case 1 of Schedule E for 1973-74 of £6,678 and for 1974-75 of £11,579, the general commissioners upheld his argument that, when discharging the duties of an inspector holding an inquiry he was not the holder of an 'office' within the meaning of section 181 of the Act of 1970 and had thus been incorrectly assessed. Walton J. allowed an appeal by the Crown, but the Court of Appeal on appeal by the taxpayer reversed his decision.

On appeal by the Crown :-

Held, dismissing the appeal (Lord Edmund Dailies and Lord Bridge of Harwich dissenting) that an 'office' in the context of Case 1 of Schedule E, (per Lord Wilberforce) involved a degree of continuance (not necessarily continuity) and of independent existence, connoting a post to which a person could be appointed, but not necessarily being capable of permanence or prolonged or indefinite existence; (per Lord Salmon) meant a subsisting, permanent, substantive position which has an existence independent of the person who fills it'; (per Lord Lowry) involved a degree of permanence and continuity amounting, as to permanence, to no more than the independent existence of an office, as opposed to its incidental creation and automatic demise with the beginning and end respectively of the appointment of an individual to perform a task an it as to continuity to no more than the existence of the post (subject always to its abolition ab extra) after the holder had left it, with the possibility of a successor's being appointed; and that in the case of the taxpayer each appointment had been personal to him; it had been temporary and ad hoc; and, although the taxpayer's duties were statutory, no office of inspector was created by the relevant legislation; and accordingly, the taxpayer was not the holder of an 'office' within Case 1 of Schedule E."

125. A public officer is not disqualified unless he is in receipt of emoluments under the Crown in right of the Government of Hong Kong. The word "emolument" was considered in Re Chapple (1964) 82 W.N. 53 where it as held that "emoluments of office" in the definition of "salary" in s.3(1) of the Superannuation Act 1916-1963 meant emoluments of office received by a person who is an employee from his employer and as a payment arising out of or in connection with duties performed in the course of that employment.

126. The test to be adopted to determine whether a person holds a public office depends, in my judgment primarily upon the duties that he is required by law to perform in respect of which conditions are attached including that of dismissal. The position of an assessor or a member of a Licensing Count, or an adjudicator of the Immigration Tribunal entails no duties in the sense that there is a legal obligation to carry out those duties at all, for the person's decision to sit is purely voluntary. The position held is not a public office, but amounts to a public service for the benefit of the community. The effect of the appointment is to place the name of the person selected upon a panel from whom an assessor or an adjudicator is selected, but that until that person actually sits, he does not hold the position of an assessor or adjudicator. An analogy can be drawn with a juror who is on the list of jurors. He sits as a juror when be has been selected, but after he has completed his period of jury service, he does not remain a juror, but reverts to the position that he holds in everyday life. The functions of an assessor or adjudicator are wholly inconsistent with the duties of a public office. The payments received are not emoluments of office, but honoraria or payments in the nature of an allowance for travelling expenses in recognition of the service performed. Accordingly I am quite satisfied that the positions held by Mr Chan and Mrs Lam are not public off ices.

127. When the candidacy of a person to a District Board is challenged, proceedings on the ground of disqualification may be instituted in the High Court under section 26 of the District Boards Ordinance provided that such proceedings are instituted within six months from the date that he acted. No such proceedings within the time limit were taken against either Mr Chow or Mrs Lam. Further, by section 26 of the Electoral Provisions Ordinance, an election to a District Board is presumed to be valid unless an election petition is presented under section 35, within two months in the case of an election which is not contested after the publication by the returning officer of the list of persons elected, or, if the election was contested, after the declaration by the returning officer of the result. As no election petition was presented within the time limited, Mr Chow and Mrs Lam were deemed to have been validly elected. No objection can now be raised to their entitlement to vote at the Legislative Council election. In the circumstances it is unnecessary to consider whether Mr Chow was salaried functionary under section 9(4)(d) of the District Boards Ordinance.

128. The petition will therefore he dismissed.

Representation:

Mr Anthony Rogers, Q.C. & Mr Poon Siu-chor, instructed by Lo, Wong & Tsui, for the Petitioner.

Mr Denis Chang, Q.C. and Mr Benjamin Yu, instructed by Kao, Lee & Yip, for the 1st Respondent.

Mr Andrew Li, Q.C. & Mr Bernard Whaley, instruct by crown Solicitor, for the 2nd Respondent.