Re Yeung Lai Yin Cecilia

HCMP 5022/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5022 OF 2003

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BETWEEN

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Before: Hon Chung J in Court

Date of Hearing: 23 March 2004

Date of Judgment: 23 March 2004

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JUDGMENT

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1.This is an application brought pursuant to section 35, Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) for relief.

2.The evidence (which is undisputed) shows that the publication in question was published in mid September 2003. It was a monthly newsletter intended for elderly people. The only reference therein to an election is the statement of reminder therein to the readers that the District Advisory Board election date was 23 November 2003 and that the registered voters should go and vote on that day. The Applicant's photograph appears next to the statement.

3.S. 2, Cap. 554 defines "election advertisement" to mean:

"(a) a publicly exhibited notice; or

(b) a notice delivered by hand or electronic transmission; or

(c) a public announcement made by radio or television or by video or cinematographic film; or

(d) any other form of publication,

published for the purpose of promoting or prejudicing the election of a candidate or candidates at the election" (emphasis supplied).

S. 2, Cap. 554 defines "candidate" to mean:-

"(a) ... a person who stands nominated as a candidate at an election; and

(b) also ... a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate at the election,

and in relation to an election to return Members for a Legislative Council geographical constituency, includes a person who is one of a group of candidates."

4.The Applicant only became a candidate on 2 October 2003. This is no evidence that she publicly declared an intention to stand as a candidate before that day. Accordingly, it is highly doubtful if the publication in question was "election advertisement" as defined by section 2, Cap. 554. In fact, had the issue been raised, I may well have decided that it was not. However, the Department of Justice has chosen not to raise the point and merely raises no objection to the application.

5.This application is now before the court for the third time. In view of the amount of time and costs which must have been spent up to now on what would appear to be a relatively simple application, I am prepared with reluctance to proceed on the assumption that the publication in question was "election advertisement" and therefore caught by the provisions of section 34, Cap. 554.

6.I am satisfied that the Applicant's non-compliance with section 34(1) & (4), Cap. 554 was due to inadvertence and was not due to bad faith. I also believe it to be just that the Applicant should not be subject to section 34.

7.For the above reasons, I exercise my discretion to except the publication in question from the relevant requirements under that section and relieve the Applicant from the penalties imposed thereunder.

Ms Yanky Lam, instructed by Messrs Chan, Wong & Lam, for the Applicant

Mr Clifford Tavares, of Department of Justice