Chu Hon Wah v. Herman Cho

HCAL127/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 127 OF 2003

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BETWEEN

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Before : Hon Chu J in Court

Date of Hearing : 3 June 2004

Date of Judgment : 2 December 2004

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J U D G M E N T

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1.This is an election petition brought under section 49(1)(a)(iv) of the District Councils Ordinance, cap. 547 (“the DCO”).

2.The petitioner and Mr Choi Sai Chuen (“Mr Choi”) were the only two candidates for the Fort Street Constituency in the District Council election held on 23 November 2003.  The respondent was the Returning Officer.  Mr Ho Wing Sing (“the PO”) was the Presiding Officer for the Fort Street Constituency.

3.After the close of the polling, the respondent declared thatMr Choi had received 944 votes and the petitioner had received 943 votes, and that Mr Choi was duly elected.  Notice carrying the result was published in the Gazette on 28 November 2003.

4.For the Fort Street Constituency, there were altogether 11 questionable ballot papers.  The present petition relates to only one of them, which was in favour of Mr Choi, and which the petitioner says should not have been counted.  If this ballot paper was not counted, the result of the election would have been a tie.  It is on this basis that the petitioner claims there was a material irregularity, and seeks a determination as to whether Mr Choi was duly elected, and if not, whether the petitioner was duly elected in his place.                                                

The petitioner’s objections

5.The ballot paper on which the present petition is basedis one on which the elector had in the circle opposite the name of Mr Choi, put a tick with a blue ball pen as well as affixing the chop provided at the polling station for marking the vote.

6.The petitioner says that the ballot paper should not have been counted because by reason of the ball pen marking on it, the ballot paper was one on which there was a mark by which the elector can be identified under section 78(1)(a) of the Electoral Affairs Commission (Electoral procedure) (District Councils) Regulations, cap. 541 (“the Regulations”).

7.The petitioner further says that the decision to admit the ballot paper is inconsistent with the PO’s decisions to reject two other ballot papers that were in favour of Mr Choi.  On the first of these ballot papers, there was a Chinese character “寧” on the top right side and some marking at the bottom right side of the circle opposite the name of Mr Choi, in addition to the affixing of the chop.  In the case of the second ballot paper, the chop was affixed both on the circle for marking the vote and also on the pre-printed tick appearing immediately above the names of the two candidates.      

The statutory framework

(1)     The DCO

8.The system of voting and counting of votes is provided by section 41 of the DCO.  The relevant part of it is as follows:

“41(1)	At every election which is contested-
	(a)	a poll shall be taken in each constituency or constituencies in which the election is held; and
	(b)	the voting at that poll shall be by secret ballot; and
	(c)	the election shall be conducted in accordance with the regulations and regulations in force under the Electoral Affairs Commission Ordinance (Cap 541).
(2)	The votes shall be given and counted in accordance with the simple or relative majority system of election (otherwise known as the "first past the post" voting system) whereby the elector shall vote for not more than one of the candidates and the candidate to whom the greatest number of votes have been given shall be declared by the Returning Officer as the only candidate to be elected.
(3)	If, after the counting of votes is finished, 2 or more of the most successful candidates have an equal number of votes, the Returning Officer must determine the result of the election by drawing lots. The person on whom the lot falls must be determined by the Returning Officer to be the elected member for the constituency concerned.
(4)	As soon as practicable after determining the result of the election, the Returning Officer must publicly declare as elected the candidate who was successful at the election.”

9.Section 49(1) of the DCO provides for the grounds on which an election may be questioned, of which ground (iv) is relevant. The relevant part of the section reads:

“49(1)	An election to return an elected member may be questioned only on the following grounds –
	(a)	the ground that the person declared by the Presiding Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541) to have been elected as an elected member at the election was not duly elected because –
		(i)  - (iii) …
		(iv) material irregularity occurred in relation to the election, orto the polling or counting of votes at the election; …”

  10.Section 55 of DCO deals with the determination of election petition by the court.  Sub-section (2),which is relevant, states:

“55(2)

At the end of the trial of an election petition that relates to an election that was contested, the Court must determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead.”

(2)     The Regulations

11.Section 58 of the Regulations prescribes the manner in which ballot papers are to be marked. It reads:

“58(1)	An elector is to mark his or her ballot paper with the chop.
(2)	The chop is to be affixed to give a single "P" in the circle opposite the name of the candidate of the elector's choice on the ballot paper.
(3)	In this section "chop" (印章) means a chop provided under section 40(7) for the purpose of marking the ballot paper.”

12.Under section 62(1) of the Regulations:

“62       If an elector inadvertently deals with the ballot paper issued to him or her in such a manner that it cannot be properly used as a ballot paper or makes an error in marking a ballot paper, he or she may apply to the Presiding Officer for another ballot paper.”

13.Sections 76, 78 and 79 of the Regulations deal with the counting and rejection of ballot papers.  The relevant parts provide as follows:

"76(1) – (3) …
(4)	The votes recorded on the ballot papers are to be counted according to the system of counting described in section 41 of the District Councils Ordinance (Cap 547).
(5)	In the course of counting in accordance with subsection (4) --
	(a)	any ballot paper-
		(i) which appears to have any writing or mark by which the elector can possibly be identified;
		(ii) which appears to be not marked in accordance with section 58(2);
		(iii) which appears to be substantially mutilated; or
		(iv) which appears to be void for uncertainty,
		is questionable and shall be separated and forwarded to the Presiding Officer to decide whether the vote should be counted in accordance with section 79; and
	(b)	any ballot paper described in section 78(1)(b), (c), (d), (f), (g) and (i) shall be separated and shall not be counted pursuant to section 78.
78(1)	When counting the votes, the following ballot papers are not to be counted-
	(a)	on which there is writing or a mark by which the Presiding Officer considers that the elector can possibly be identified;
	(b) - (i) …
79(1)	If a ballot paper is forwarded to the Presiding Officer under section 76(5)(a), a candidate, an election agent or a counting agent, if present at the counting zone, may inspect and make representations to the Presiding Officer concerning the ballot paper.
(2)	After considering the representations (if any) made under subsection (1), the Presiding Officer shall determine whether the ballot paper—
	(a)	is valid and the vote shall be counted; or
	(b)	shall not be counted pursuant to section 78 for—

		(i)	having on it any writing or mark by which, in that Officer's opinion, the elector can possibly be identified;
		(ii)	subject to subsection (3), being a ballot paper not marked in accordance with section 58(2);
		(iii)	being a ballot paper which is substantially mutilated; or
		(iv)	being void for uncertainty.

(3)	In the case of a ballot paper which is not marked in accordance with section 58(2), if the Presiding Officer is satisfied that the intention of the elector is clear notwithstanding the deviation from the requirement in section 58(2), the Presiding Officer may count that ballot paper.”

The Presiding Officer’s decision 

14.In paragraph 9 of his affirmation, the PO explained his decision to admit the ballot paper in issue in this petition as follows:

“In my opinion, the ball-pen marking was not a mark for identification. No uncommon feature was observed on the tick.  The tick could have been made before the elector realized that a chop was provided and should be used for marking vote.  The elector placed a tick with a ball pen and the chop in the same circle.  The intention to vote for Mr Choi was clear and I accepted this as a valid vote and counted it for Mr Choi.”                                             

15.In essence, the PO’s reasons are threefold. First, he considered that the mark was not a mark for identification. Second, he thought the tick could have been made inadvertently.  Third, the elector’s intention to vote for Mr Choi was clear.

The manner of marking the ballot paper

16.Before dealing with the substantive issues in this petition, it is important to note the nature of the statutory provisions on the manner in which ballot papers are to be marked.  Under section 58 of the Regulations, an elector can only mark his vote by affixing the chop in the way stipulated in section 58(2). Section 40(7) of the Regulations also provides that the Chief Electoral Officer must provide at each polling station the chop for marking the ballot papers.  As observed in Chiang Lai Wan v. Tang Siu Tong [1998] 3 HKC 613, provisions governing the manner in which ballot papers are to be marked are mandatory in nature.  Likewise, the use of a chop to mark an elector’s choice as provided in section 58 of the Regulations is mandatory in nature.  Handwriting or handwritten marking therefore has no place in the present voting system, and is an unauthorized manner of marking a ballot papers.

17.It is therefore necessary to bear in mind that manuscript writing or marking is not part of the present voting system, when considering the actual decision on ballot paper no. 3 in the case of Chiang Lai Wan v. Tang Siu Tong and the English authorities Mr Kwok refers to on additional markings: Woodward v. Sarsons (1875) LR 10 CP 733, Re South Newington (Kingston-Upon-Hull) Municipal Election Petition, Lewis v. Shepperdson [1948] 2 All ER 503.  Indeed given that the English cases relate to somewhat different statutory regimes and different social conditions, they are not of great assistance in deciding the present petition.

The clear intention of the elector

18.As submitted by Mr Dykes SC, the elector’s clear intention to vote for Mr Choi, being the third reason given by the PO, is an irrelevant consideration.  Section 79(3) of the Regulations only applies to a ballot paper, which is not marked in accordance with section 58(2) of the Regulations.  It is dealing with cases where the chops were affixed not in the particular way prescribed by section 58(2).  In the present case, there is no deviation from the required manner in which the chop is to be affixed.  The non-compliance lies in putting a handwritten mark on the ballot paper in addition to the affixing of the chop.  The reference to the clear intention of the elector to vote for Mr Choi is therefore misplaced.  It is also for this reason that the present case differs from ballot paper no. 3 in Chiang Lai Wan v. Tang Siu Tong.

Mark for identification?

19.The only issue in this petition is whether the handwritten “tick” is a mark by which the elector can possibly be identified.  It is as Mr Kwok puts it primarily a point of fact.  I also agree with Mr Dykes SC that the emphasis is on the potential of the elector being identified.

20.In Borough of Exeter Case, Duke v. St Maur  (1911) 6 O’M & H228 at 232 which deals with section 2 of the Ballot Act that is similar to section 79(2)(b)(i), Channell J said:

“But I think that the statute makes void all ballot papers which have on them marks other than those which indicate the intention to vote for a particular person, and which may be indications of the identity of the voter.  And it seems to me that when you find a ballot paper which has got something clearly going beyond the intention to indicate for whom he votes, then you must hold that to be bad.”

21.In Chiang Lai Wan v. Tang Siu Tong at 630, Barnett J having referred to Borough of Exeter Case, observed that:

“Upon looking at these and the other authorities to which I was referred, it seems to me that the writing or mark complained of must either itself, or taken in conjunction with another piece of evidence, lead to identification of the voter.  Thus, a full set of initials, the writing of a name or even some very distinctive handwriting would be sufficient.  In the absence of such distinctive writing or mark, the availability of some other piece of evidence to link that writing or mark to the elector would be sufficient.  As Channell J said, however, the availability of such evidence is something which you do not get.”

22.In the present case, although the handwritten “tick” may appear to be an ordinary “tick”, the fact that it came to be marked on the ballot paper is, in my view, something unusual.  As accepted by both sides, when an elector was issued with a ballot paper, he was also given a cardboard to which the chop for affixing the vote was attached: see also the Guidelines on Election-related Activities in respect of the District Councils Elections issued by the Electoral Affairs Commission in September 2003, p.38 para.4.18.  It is difficult to understand why the elector would mark the ballot paper with a ball-pen, which was not provided, in addition to marking with the chop provided to him.

23.This brings me to the suggestion that the handwritten “tick” could have been put inadvertently, which was the second reason given by the PO.  In my view, this is a matter that should carry no weight in considering the validity of the ballot paper in issue.  Firstly, for the reasons mentioned in the preceding paragraph, it is equally, if not more, likely that the handwritten “tick” was put not by mistake but was put deliberately.

24.Secondly, the situation is no different from the ballot paper on which the chop was affixed both on the circle for marking the vote and also on the pre-printed tick appearing immediately above the names of the two candidates.  The PO explained his decision to reject this ballot paper on the basis that the elector appeared to him to have carefully positioned the chop before affixing it on the pre-printed tick, hence was not doing this for testing purpose. But the same can be said of the manuscript tick on the ballot paper in question when one considers that the elector, although being given a cardboard with the chop attached to it, had taken the initiative to use a ball pen of his to write a tick.

25.In my view, the handwritten tick, when viewed together with the other circumstances, is a mark that goes beyond the intention of indicating the elector’s choice.  It is a mark by which the elector can possibly be identified.

The integrity of the election system

26.Mr Kwok has submitted that the choice of the voter is the most important element in the whole election process and a vote should not be taken away lightly.  It is therefore said that strict compliance is not justified and that the court ought to approach the issue with some flexibility.  In my view, requiring voters to comply with the system of voting in exercising his right is not incompatible with the right to vote.  That aside, maintaining the integrity of the election system is of the utmost importance and to this end due observance with procedural requirements is both necessary and justified.

Conclusions

27.For the reasons stated above, the questionable ballot paper in issue should not have been counted.  One vote should have been deducted from the total votes recorded for Mr Choi.  The result is that the petitioner and Mr Choi each have 943 votes.  The votes are therefore tied.  Pursuant to section 55(2) of DCO, I determine that Mr Choi was not duly elected. In view of the tie, I am unable to make any further determination.  It may be necessary for the tie to be resolved by the application of section 41(3) of DCO.

27. Counsel have requested that the question of costs of these proceedings be reserved for further arguments.  Accordingly, I direct that the parties do indicate within 14 days from the handing down of this judgment, by letter to the court whether an oral hearing on costs is required, and if not, the timetable for the lodging of written submissions.

Mr Philip Dykes SC avnd Mr Victor Dawes instructed by Messrs Peter Lau & Co. for the petitioner.

Mr. Kwok Sui Hay instructed by the Department of Justice for the respondent.