Lai Kwong Ma and Others v. Tang Hop Wan and Another

HCMP000249/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELIANEOUS PROCEEDINGS

ACTION NO.249 OF 1975

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Coram: Trainor, J. (in Chambers)

Date of Judgment: 19th December, 1975.

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JUDGMENT

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1. The plaintiffs in these proceedings, commenced by way of originating summons, seek a declaration that the purported election of the 1st defendant as village representative of Ha Tsuen Market Town is invalid and void, an injunction to restrain the 1st defendant from acting as village representative of that market town; further declaration, that the election of the 1st defendant as the Chairman of the Ha Tsuen Rural Committee is invalid and void, and an injunction to restrain the 1st defendant from acting or purporting to act as such chairman.

2. The proceedings were commenced on the 19th June 1975, an appearance was duly entered by the defendant and in August of 1975, an affirmation was filed on behalf of the 4th plaintiff (hereafter referred to as the deponant) setting out on his own behalf and on behalf of the other plaintiffs, the grounds of their claim. Substantially the claim is that the election of the defendant as village representative is void by reason of irregular procedure according to a constitution setting up this representative body; the further objection is that the election of the defendant as chairman was invalid because he was elected at an election meeting which had been adjourned and reconvened but which should not have been reconvened as the reasons for the adjournment had not been resolved.

3. The irregularity alleged so far as the election of the village representative is concerned is that certain persons who, according to a document exhibited and alleged to be the constitution of the Ha Tsuen Rural Committee, were entitled to vote on the election had been improperly deprived of their vote by the District Officer (the second defendant as represented by the Attorney General). It is alleged that had those persons been allowed to vote they would have voted against the election of the first defendant and as a result he would not have been elected as such representative. In the circumstances the first defendant could not have been elected chairman.

4. The elected village representatives constitute the Ha Tsuen Rural Committee and they elect their own committee and chairman. The election of chairman is held under the suprevision of the District Office and a meeting was fixed for the 29th April, 1975 for that purpose at the Ha Tsuen Rural Committee Office.

5. The deponent says in his affirmation that on about the 30th March he, the other three plaintiffs and a number of village representatives met in a restaurant to discuss the election of the committee and its chairman. The deponent contemplated standing for the chairmanship. He said that two representatives told him outside the restaurant that the 1st defendant had offered them $25,000 each for their support but that if the defendant was prepared to pay them $20,000 each they would do him a favour and vote for him. This offer, he said, he rejected. What was said was repeated by one of the two to a Mr. Tang Ching Ping in the presence of another representative.

6. The deponent said that about the 2nd April this Mr. Tang called on him and told him that the other representative who had spoken to the deponent outside the restaurant had already received $25,000 from the defendant but that he, Mr. Tang, could promise his support and that of two others for a total of $60,000.

7. The deponent, on the 29th April through his solicitors, notified the Commissioner of the Independent Commission Against Corruption.

8. The 29th April was the date of the intended election by which time the villagers had come to know of the alleged bribery. A huge crowd assembled outside the Rural Committee Office and demanded that the election he postponed until the incidents had been fully investigaged. The deponent said the District Officer after consultation with the police postponed the election. The deponent said he presumed the District Officer postponed the election for two reasons:

9. The deponent said that it was with surprise that he and a number of village representatives received a letter dated the 2nd May from the District Officer fixing the 9th May as the new date for the elections which were to be held at the Yuen Long District Office. He said that at this time no reply had been received from the Independent Commission Against Corruption and, to the best of his knowledge information and belief, no investigation had been made by the District Officer into the allegations.

10. The parties appear before me in Chambers on Notice to hear the Originating Summons issued by the plaintiff.

11. At the hearing I was told that by agreement the proceedings would be continued as if the proceedings had been commenced by a writ of summons and I was asked to make certain directions as to Statement of Claim, Defence etc which had been agreed between the parties and to adjourn the matter.

12. The only issue between the parties was as to costs which the plaintiffs claimed against the first defendant only.

13. The question of costs are one which I would have preferred to have reserved to the trial judge, or to have ordered to be costs in the cause but Mr. Li, Counsel for the plaintiffs wished that I should make an order.

14. The crux of the position is, I think, precisely as Mr. Li stated it: should these proceedings have been commenced by originating summons or by way of writ.

15. Order 5(4) of the Rules of the Supreme Court provides that in the absence of a prescribed form proceedings may be commenced by writ or originating summons as the plaintiff considers appropriate.

16. Rule 4(2) of the Order provides:

17. Mr. Li contended that the plaintiff was justified in anticipating that there would be no substantial issue on the facts. He said there were really only two matters for consideration:

18. As to (1) he would argue that this merely involved the interpretation of a document; and as to (2) he maintained that for the purposes of the proceedings all the plaintiffs had to prove was the existence of the allegations of bribery. It was not necessary for the plaintiff to prove that there was bribery or the offer of bribes. If allegation of such existed then the District Officer was in duty bound to postpone the election of Chairman until they were explored. He said the plaintiffs were justified in assuming that it was unlikely that the existence of the allegations would be disputed. He said that substantial disputes as to facts, which justifiably were unforeseen by the plaintiffs, were put in issue by the defendant and it was because of this directions had to be sought. He complained that the plaintiffs were only made aware that the first defendant disputed the facts when his affirmation was received a week before the date fixed for hearing.

19. Mr. Wei for the defendants pointed out that although the plaintiffs were not seeking costs against the second defendant there was a considerable contest between them and referred to the deponents affirmation where he accused the District Offices of wrongful exercise of his discretion as conductor and supervisor of the election of chairman. He said the plaintiffs should and must have anticipated that the existence of allegations of bribery would be contested every inch of the way. He said the charge of the wrongful exercise of his discretion by the District Officer was something the plaintiffs must have known would be disputed.

20. Ought the plaintiffs have anticipated a substantial dispute on the facts?

21. In my opinion undoubtedly they should have done so. To begin with the validity of the so called constitution itself could be foreseen as a likely issue. Supposing for the sake of argument, however, it was valid the right of a person to be included in the list of voters depends on facts. The plaintiffs would claim that certain persons by reason of those facts were eligible to be included; but the second defendant or more precisely the District Officer had by his failure or refusal to include those persons on the electoral roll had indicated that he disputed their eligibility.

22. But even if it were possible to resolve the first issue on affidavit what of the second - the election of the chairman. This issue arises on allegations or rumours of bribery. In my opinion where an allegation of bribery exist it must perforce be essential to prove its existence; where the allegation is of the existence of rumours of bribery proof of such rumours must be clearly established. Moreover, for the plaintiff to have any chance of success he must establish that the rumours were credit worthy and that they existed to the knowledge of the District Officer. I think any plaintiff must have anticipated a violent conflict on the existence of credit worthy rumours of bribery.

23. In my opinion it might well have been anticipated, indeed ought to have been anticipated, that there would be a very considerable dispute on the facts and therefore these proceedings should have been instituted by way of writ rather than originating summons. Had they been so instituted there would have been no necessity for the proceeding. Being of that opinion I award costs to the defendant with certificate for Counsel.

24. I order the draft directions as submitted to me by consent of both parties be the directions in the case, with the number of days for the various steps in the procedure to be as inserted by me in ink.

Representation:,

Mr. A. Li (Johnson, Stokes & Master) for Plaintiffs.

Mr. R. Wei (Peter Mo & Co.) for 1st Defendant.

Mr. W. Lee (Attorney General) for 2nd Defendant.