Mok Charles Peter v. Tam Wai Ho and Another

HCAL 141/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 141 OF 2008

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BETWEEN

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AND

HCMP 202/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 202 OF 2009

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(Heard together)

Before:  Hon Reyes J in Court

Dates of Hearing:  7 and 9 April 2009

Date of Judgment:  9 April 2009

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J U D G M E N T

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I.       INTRODUCTION

1.In the 2008 LegCo Election Mr. Mok and Dr. Tam were the only 2 candidates for the Information Technology (IT) Functional Constituency.  The Election Period ran from 19 July (nominations day) to 7 September 2008 (polling day).

2.The results of the Election were declared on 8 September.  Dr. Tam received 2,017 votes, while Mr. Mok received 1,982.  Dr. Tam was therefore the winner with a slim majority of 35 votes.

3.Mr. Mok now makes a number of complaints about the conduct of Dr. Tam’s campaign.

4.First, Mr. Mok complains that immediately before the Election Period Dr. Tam commissioned a series of 8 videos (each between 60 to 90 seconds length) entitled “IT      Talk” (known in English as “IT Guru Talk”).  The series featured Dr. Tam as host.

5.The videos were broadcast on Cable TV between 30 May and 30 June 2008.

6.The videos (Mr. Mok says) highlighted Dr. Tam’s profile, image, reputation and popularity in the IT sector.  They were in effect (Mr. Mok contends) political advertisements for Dr. Tam.

7.By causing the videos to be broadcast on Cable TV before the Election Period, Dr. Tam (Mr. Mok claims) gained an unfair advantage.  This (Mr. Mok argues) was contrary to Guidelines on LegCo Elections (Guidelines) published by the Electoral Affairs Commission.

8.Second, Mr. Mok complains that, in breach of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulations (Cap. 541D sub leg) (Regulations), Dr. Tam failed to furnish 2 copies of the videos to the Election Returning Officer.

9.Before and during the Election Period the videos were accessible by the public through websites associated with Dr. Tam (such as Dr. Tam’s YouTube account and Dr. Tam’s blog).  Since the videos must have been intended to enhance Dr. Tam’s profile as an IT constituency candidate, Dr. Tam (Mr Mok argues) should have provided copies of the videos to the Returning Officer.

10.Dr. Tam has since provided copies of the videos to the Returning Officer.  But that was only after complaint was made.

11.Third, Mr. Mok says that, contrary to the Elections (Corrupt and Illegal Conduct) Ordinance (Cap.554) (EO), Dr. Tam exceeded the maximum amount ($336,000) which an IT candidate may spend to secure election to LegCo.

12.Following the Election, Dr. Tam declared in his Return of Expenses and Donations that he had incurred expense of $187,129.13 for the purposes of the Election.  But the Return did not include the cost of producing or broadcasting the videos (at least $220,000).

13.Mr. Mok contends that the full cost of producing and broadcasting the videos should have been included in Dr. Tam’s Return as the videos were used to promote Dr. Tam during the Election Period.  Had that full cost been taken into account, Dr. Tam (Mr. Mok argues) would have surpassed the permissible maximum by at least some $70,000.

14.Fourth, Mr. Mok contends that Dr. Tam failed to disclose miscellaneous items in his Return.  Those items relate to the salaries of campaign staff, the expenses of promotional gatherings and materials, and sundry travelling expenses.  Mr. Mok says that, in so failing to declare those items of expense, Dr. Tam acted illegally and corruptly.

15.On the basis of his complaints, Mr. Mok petitions the Court to annul Dr. Tam’s election and declare Mr. Mok the winner instead.

16.Dr. Tam accepts that his Return contained omissions.  Those admitted omissions are $1,950 for drinks; $1,010.20 for petrol; $5 for a T-shirt; and $27 for a donation.  Even if these items are added to the $187,129.13 declared in his Return, the resultant figure (Dr. Tam points out) would still be well below the $336,000 maximum. 

17.Dr. Tam applies to the Court to exercise its power under the EO to allow him to correct his Return to reflect the omissions accepted by him.  He says that those items were left out inadvertently.  He says that he had no intention deliberately to mislead or make false statements in his Return.

18.Apart from those identified items, Dr. Tam does not accept that his Return was defective. 

19.He denies that he acted corruptly or that he surpassed the limit of election expenses.  He disagrees that the videos were political in nature.  He says that the videos were made to generate interest in IT among the general public. 

20.Dr. Tam further observes that, insofar as the videos were shown before the Election Period, that was a time when Dr. Tam was only contemplating running for the IT constituency.  Before the Election Period, he was not yet certain that he would run and had not declared himself to be a candidate.

21.In any event, Dr. Tam points out that he accounted in his Return for the cost ($20,000) of making the videos accessible through his websites during the Election Period.  That $20,000 cost was the amount which Dr. Tam paid to Cable TV for a licence to show the videos on his websites.

II.      DISCUSSION

A.      Complaint 1: Were the videos political advertisements before the Election Period?

22.The videos concern a variety of IT-related topics.  Typically, in each video, a passerby asks some question about the IT industry.  Dr. Tam comes on the scene and attempts to answer the question.  Shortly after Dr. Tam appears, a resume of his credentials as an “IT Guru” is flashed onscreen.

23.The videos covered the following questions:-

(1)     What sort of clothing does a trendy IT professional wear?

(2)     Is it true that IT professionals are more likely to have daughters than sons?

(3)     Do “High Tech” computers “mess up” by frequently breaking down?

(4)     Do IT professionals often “slack off” their job, especially by coming to work late?

(5)     Are IT jobs being increasingly outsourced to “IT guerillas” (that is, persons who accept outsourced jobs)?

(6)     What relation is there between IT and environmental protection?

(7)     What trendy slang expressions are used by IT people?

(8)     Are mobile phones evolving from “big tortoises” to “small tortoises” (that is, becoming smaller and smaller)?

24.It will immediately be seen that the video topics are frivolous.  They do not explore the nature of IT with any degree of profundity.

25.The profile of Mr. Tam which is screened in each video runs as follows (in translation):-

“Samson Tam’s Most Extraordinary File

--      Chinese male with the title of ‘Dr.’

--      Suspected to be in his forties

--      Identity not confirmed -- because he is too lazy to look up in the dictionary so he invented the first Chinese/English electronic dictionary

--      After some thinking, he also invented the first Cantonese reading machine for the blind

--      Fond of making a fuss, he has opened a listed technology company

--      So fond of playing football then he has set up a football team

--      Like karaoke singing in his spare time and has become the shareholder of a karaoke

--      Being enthusiastic about public affairs, he has established the first technology think tank

--      In order to explore business in innovative technology, he has also become an angel investor

--      Contributes money, efforts and even scientific research technology to promote technology development of Generation Next

--      Hence too many identities make him difficult to define

--      But is sure that he is extremely enthusiastic about technology development.  He is a real super IT Guru.”

26.Mr. Martin Lee SC (appearing for Mr. Mok) submits that the broadcasting of the videos before the Election Period violated Broadcasting Ordinance (Cap.562) (BO).  That provides in Sched. 4 §12:-

“A licensee shall not include in its service any advertisement of a religious or political nature or concerned with any industrial dispute.”

27.A licensee is defined in BO s.2 as the holder of a licence to provide television programme services.  Cable TV is a licensee.

28.Mr. Lee further points to Guidelines §11.4 which states:-

“No unfair advantage should be offered to or obtained by any candidate/GC list over others regarding election campaigning.”

29.Mr. Lee contends that, before the Election Period, Dr. Tam by the videos promoted his prospective candidacy.  The videos were broadcast on TV contrary to BO Sched.4 §12 and in effect obtained for Dr. Tam an unfair advantage over Mr. Mok.

30.I am not persuaded by Mr. Lee’s submission.

31.In fact Mr. Sin Chung Kai (the previous incumbent of the LegCo IT constituency) complained about the broadcast of the videos to the Broadcasting Authority (BA).

32.In response, the BA stated on 27 October 2008:-

“The BA noted that (i) the series of eight advertisements with the same host were about the lifestyle of IT personnel.  A flipcard showed the profile of the host [Dr. Tam] was found and credits giving acknowledgment to various organizations and companies were displayed at the end of each version.  There was no reference to any political party or election matter; (ii) the advertisements concerned were not considered as election advertisements; and (iii) the advertisements adopted a programme style which was certainly not clearly identifiable as advertisements.

The BA considered that an advertisement would constitute ‘an advertisement of a political nature’ if it sought to further the interests of a particular political party or person.

The BA considered that although it was obvious that the advertisements were intended to enhance the popularity of the host in question and build up his strong connection with the IT field, they were not ‘advertisements of a political nature’ as (1) they did not contain materials which promoted the interests of any political grouping or person; and (2) they were not election related.  The advertisements were not in breach of section 12 of Schedule 4 to the BO which prohibited the inclusion of advertisements of a political nature in domestic pay television programme services.

Nevertheless, the BA considered that the advertisements adopted a programme style which was not clearly identifiable as advertisement and had not been flagged as such.  The advertisements were in breach of paragraphs 4 and 5 of Chapter 3 of the Generic Code of Practice on Television Advertising Standards (‘TV Advertising Code’) which stipulated that advertising material should be clearly identifiable and that advertisement adopting a programme style had to be flagged in a clearly legible manner.

Hong Kong Cable Television Limited was given an advice to observe closely the relevant provision in the TV Advertising Code.”

33.I agree with the BA’s reasoning. 

34.The videos are undoubtedly advertisement. But of what?

35.Dr. Tam says that the videos were designed to spotlight the IT industry.  That may be the case.  However, one has only to read the profile of Dr. Tam broadcast in each programme to appreciate that the videos would also have (and must have been intended to have) the effect of advertising Dr. Tam to the IT community.

36.Nonetheless, such element of self-promotion would not to my mind be enough to turn the videos into “political” advertisements.

37.It is true that at the time of the videos’ broadcast the LegCo Election was known by the public to be imminent.  It is also true that Dr. Tam was seriously contemplating running for LegCo.  He said as much in a number of interviews. 

38.But Dr. Tam had not yet officially declared himself.  It was conceivable that at the last minute before the Election Period he could have decided not to run.  Thus, at least as a matter of first impression, Dr. Tam could not have been promoting himself as a political candidate in the videos.

39.I say as a matter of first impression.  That is because a person may for tactical or other reasons delay declaring himself a LegCo runner, but nevertheless behave to all intents and purposes as a candidate on the campaign trail.  A person’s activities may constitute political advertisement even before an Election Period has officially started or the person has formally declared himself a candidate. 

40.Therefore one needs to scrutinise the videos themselves.  One does this to see whether, apart from the fact that Dr. Tam was known at the time to be thinking of running for LegCo, there is anything in the videos which overtly furthers a “political” agenda.

41.What do I mean by a “political” agenda?  The word “political” is not defined in the BO or any other relevant statute.  I do not think that it would be helpful to attempt an exhaustive definition.  This is because what is or is not “political” must be a question of fact depending on a given context.

42.A working (but by no means comprehensive) test of what constitutes a “political” advertisement might be “something that expressly or impliedly encourages the public to vote a person or group into public office on the strength of their credentials; or what they promise to do once in office; or the unsuitability of some other person or group aspiring to or already in public office”. 

43.I do not find such overt elements in the videos. 

44.The videos do not mention a group or party as suitable for any particular public office. 

45.The videos do focus on the personality of Dr. Tam.  But they do not say anything about what he proposes to do if elected or why it would be a good idea for him to represent the IT industry in public office.  Nor do they criticise the LegCo incumbent or potential rivals of Dr. Tam.

46.The videos undeniably promote a favourable image of Dr. Tam.  But, like the BA, I do not think that such, without more, is enough to make the videos “political”. 

47.Dr. Tam previously ran for LegCo.  He was unsuccessful. In my view, it would be applying too extreme a definition of “political” to say that, due to his previous abortive or possible future candidature, anything that Dr. Tam does before an Election Period to promote himself as an IT person should be regarded as “political” in nature.

48.I have stated that the working definition of “political” which I have used is not comprehensive.  This is because, for example, the definition has not taken account of advertisements by groups (such as NGOs) which attempt to change society’s attitudes or the law on some particular matter.

49.Mr. Lee faintly suggests that the videos were an attempt by TechMatrix (an organisation associated with Dr. Tam which funded the videos) to try to influence the public’s attitude towards the IT sector.  In that sense, the videos (Mr. Lee submits) were “political”.

50.Frankly, the videos seem far too frivolous and simplistic to have had such a purpose.  At best the videos raise the profile and eccentricities of IT people in the public mind.  I doubt that the videos’ content can be classified as political propaganda as opposed to mere entertainment.

51.It follows that I do not think that the broadcasting of the videos before the Election Period were political broadcasts which gave Dr. Tam an unfair advantage over Mr. Mok.

B.      Complaint 2: Should the videos have been provided to the Returning Officer?

52.The EO provides as follows:-

“2.     (1)       In this Ordinance, unless the context otherwise requires:-

‘candidate’

(a)     means a person who stands nominated as a candidate at an election;

(b)     also means 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,....

....

‘election expenses’ in an relation to a candidate or group of candidates at an election, means expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purposes:-

(a)     promoting the election of the candidate or group; or

(b)     prejudicing the election of another candidate or group,

and includes the value of election donations consisting of goods and services for that purpose.

‘election period’, in relation to an election, means the period beginning with the nomination day for the election and ending with the polling day for the election...

....

24.    (1)       A candidate engages in illegal conduct at an election if the aggregate amount of election expenses incurred at or in connection with the election by or on behalf of the candidate exceeds the maximum amount of election expenses prescribed for a candidate by regulations in force under section 45.

....”

53.Regulations, s.102 provides:-

“(6)     Subject to subsection (7), a candidate must, before he or she displays, distributes or otherwise uses an election advertisement, furnish 2 copies of it to the Returning Officer.

(7)       If it is not practicable to make a copy of an election advertisement, the candidate must furnish to the Returning Officer 2 colour photographs n postcard size of that election advertisement.

...

(9)       If an election advertisement is recorded on a videotape or an audio tape or disc, the candidate must, for the purpose of subsection (6), furnish to the Returning Officer 2 copies of the tape or disc.

...

(12)     A candidate who fails to comply with any requirement in this section commits an offence.”

54.On 29 August 2008 the EAC wrote to Mr. Sin in response to the latter’s complaint about the videos as follows:-

“... [I]t is considered that the videos which had been shown in Cable TV before Mr. Tam publicly declared his intention to run for the 2008 LegCo Election at a press conference on 13 July 2008 were not EAs [Election Advertisements] as Mr. Tam was not a ‘candidate’ according to the definition set out in section 2 of the [EO]. As such, there was no violation of the electoral law or guidelines on the part of Mr. Tam and Cable TV in this regard.  Nevertheless, the proximity of the broadcasting time of the aforesaid video programmes to the date of Mr. Tam’s declaration of his intention to run for the 2008 LegCo Election may easily arouse public suspicion about his intention to produce the video programmes.  In this connection, we have issued an advisory letter to Mr. Tam.

The videos which are being shown in YouTube and Mr. Tam’s blog after 13 July 2008 are likely to be regarded as EAs as it is considered that they have been shown for the purpose of promoting Mr. Tam’s election.  As Mr. Tam has not deposited with the Returning Officer (‘RO’) of the relevant constituency the declaration and copies of the videos that were shown in YouTube and his blog after 13 July 2008 as required under section 102 of the [Regulations], Mr. Tam has breached the aforesaid electoral regulation.  The case has therefore been referred to the Police, being the enforcement authority of the said Regulation, for further investigation.”

55.Mr. Daniel Fung SC (appearing for Dr. Tam) submits that, for the same reason that the videos were not political advertisements prior to the Election Period, they should not be treated as election-related material during the Election Period.

56.The videos not having been produced to promote Dr. Tam as a candidate, it cannot be (Mr. Fung suggests) that the videos afterwards became material promoting the election of Dr. Tam as a candidate.  The mere fact that during the Election Period there was a link to the videos via Dr. Tam’s websites would not alter the character of the videos.

57.I am not persuaded.  Indeed, to be fair to Mr. Fung, he himself did not press his submission on this point.

58.The videos should be assessed by reference to the context in which they are deployed. 

59.Before the Election Period, in particular before Dr. Tam declared himself to be a candidate, the videos may properly be regarded as apolitical.

60.But the context changed with the start of the Election Period. 

61.The videos promoted Dr. Tam as an IT professional.  Consequently, their being available online in the context of the Election Period has to be treated as an attempt to promote Dr. Tam as a suitable candidate for the IT sector. 

62.With the change of context, the videos became an election advertisement.  There was then an irregularity in that, contrary to Regulations s.102, Dr. Tam failed to provide 2 copies of the videos to the Returning Officer before deploying them during the Election Period.

C.      Complaint 3: Should the videos have been declared as an election expense?

63.It follows from my conclusion on Complaint 2 that the cost of uploading and maintaining the videos on Dr. Tam’s websites must be regarded as an election expense. 

64.The question is what is the cost that must be accounted.

65.Mr. Lee contends that the correct cost is at least the cost of the videos to TechMatrix ($220,000). 

66.Mr. Fung submits that the cost to be accounted for is the amount ($20,000) paid by Dr. Tam to Cable TV for the right to show the videos on Dr. Tam’s websites.  Dr. Tam in fact declared the licence fee of $20,000 in his Return. 

67.Copyright in the videos resided (and continues to reside) with Cable TV.  Cable TV produced the videos at its own cost and charged Dr. Tam $220,000 for their broadcast.  There is no evidence that any other cost was incurred in relation to the videos.

68.As a preliminary matter, Mr. Lee notes that the cost of $220,000 reflects an 88% discount on Cable TV’s published tariffs.  He argues that the cost to be accounted should therefore be higher than $220,000.

69.But it seems to me on the evidence that $220,000 was the result of protracted arm’s length bargaining between TechMatrix and Cable TV.  There is no evidence that the 88% discount was some sort of special deal not available to any member of the general public after bargaining.

70.Thus, I do not accept this preliminary submission of Mr. Lee.

71.In determining the substantive question of the cost to be accounted, I have been assisted by the judgment of the English Court of Appeal in Fiona Jones [1999] 2 Cr App R 253. 

72.In Fiona Jones the issue was whether the rental of an office and the compilation of an electoral database by X were “election expenses” under s.76 of the People Act 1983.  The latter statute contains a similar definition of “election expenses” as that found in EO s.2.  X won a parliamentary general election in May 1997.  The office rental and the expenses of the database were incurred before the election was called in March 1997.

73.At 256C-E, Lord Bingham CJ said:-

“....  Election expenses are not incurred where a constituency party carries on its ordinary political activity otherwise than with reference to a specific election which is reasonably imminent, even though such activity has the ultimate aim of winning public support and gaining or retaining power in the constituency; nor are they incurred by a candidate who nurses a constituency.  An election expense means expenses incurred, by or on behalf of a particular candidate, closely related to the machinery of the election, for the prime or principal purpose of promoting the interests of that candidate.  The trial judge directed the jury succinctly and accurately in this case when he said (at page 9A of his summing-up):-

‘An “election expense” is “spending during the election campaign or when it is reasonably imminent on something closely related to the machinery of the election, its processes, principally or primarily with the purpose and intention of promoting the candidate’s election prospects.”’

....  In [McCrory v. Hendron and Another [1991] NI 177 DC], at page 195, Kelly LJ held that section 76 required proof of two elements that the expenditure should be closely related to the machinery of an election; and that the expenses should be primarily or principally incurred for the promotion of the interests of the candidate.”

74.It is clear from the definition in EO s.2 that “election expenses” may be incurred before an Election Period. 

75.Whether a payment incurred before an Election Period is an election expense is a question of fact.  Fiona Jones suggests (I think correctly) that, to qualify as an election expense, it must be established that a payment is “so closely related to the machinery of an election”.  It is not enough that the payment goes towards promoting a particular person.

76.How then should one characterise the $220,000 paid by TechMatrix for the videos? 

77.Given my conclusion in relation to Complaint 1, it logically follows that the $220,000 expenditure before the Election Period cannot be regarded as “so closely related to the machinery of an election” as opposed to mere promotion of the personality of Dr. Tam.  This is on the assumption (favourable to Mr. Mok) that the $220,000 contained some element for producing and airing the videos.

78.But Mr. Fung stresses that in actuality Cable TV only charged TechMatrix for airing the videos over Cable TV before the Election Period.  Nothing was charged by Cable TV for production, with the result that ownership and copyright in the videos remained with Cable TV. 

79.The $20,000 licence fee covered the use of the videos in Dr. Tam’s websites before and during the Election Period.  On that basis, Mr. Fung argues (and I agree) that the correct amount to be accounted in relation to the Election Period must at most be $20,000.  That is the effective cost of carrying the videos as an election advertisement on Dr. Tam’s websites during the Election Period.

D.      Complaint 4: What about the miscellaneous expenses?

80.The miscellaneous expenses of which Mr. Mok complains can be dealt with briefly.

81.Campaign staff expenses.  Various individuals took time off from their jobs at Group Sense Limited to help out with Dr. Tam’s campaign as volunteers.  Group Sense is a listed company of which Dr. Tam is chairman. 

82.The individuals used part of their annual leave entitlement for this purpose.  Group Sense granted them leave for periods varying from an hour or two to several days.

83.Dr. Tam’s case is that, such campaign work having been done on a voluntary basis, its money equivalent did not have to be declared under the EO.

84.Mr. Lee has suggested that it is odd for a company to have been prepared to grant staff leave in units of 1 or 2 hours per day.  This (Mr. Lee hints) is suspicious. 

85.Dr. Tam’s evidence is that Group Sense had a policy of allowing staff to take 1 or 2 hours’ leave from time to time for personal matters, even without formal application.

86.There is no cogent evidence before me indicating irregularity in the accounting of leave for the purposes of the volunteer work.  I am unable to find any corrupt or illegal conduct in respect of this item.

87.Miscellaneous items.  These are $1,950 for drinks; $1,010.20 for petrol; $5 for a T-shirt; and $27 for a donation. 

88.I am satisfied that the omission to declare these amounts was inadvertent.  I do not find bad faith in the failure to declare them.  There will be leave to rectify Dr. Tam’s Return accordingly.

E.      Summary and outcome

89.The broadcast of the videos did not constitute political advertising before the Election Period. 

90.But the making available of the videos to the public on Dr. Tam’s various sites during the Election Period turned the videos into election advertisements.

91.Consequently, the expense associated with the making available of the videos online during the Election Period should have been accounted for in Dr. Tam’s Return.  That expense of $20,000 was accounted for in the Return.

92.Dr. Tam excluded certain miscellaneous expenses from his Return.  That was regrettable, but inadvertent. There is no evidence that the miscellaneous items were omitted for corrupt motives.

93.Dr. Tam wrongly failed to provide copies of the videos to the Returning Officer before using them during the Election Period.  But he later provided the requisite copies and is now being investigated by the police for possible criminal conduct in breach of the Regulations.

94.In the scale of things, I do not think that the initial failure to provide copies of the videos was a material irregularity.  I do not believe that it is a sufficient basis for me to annul the Election results.  Dr. Tam may or may not have omitted to provide copies for some innocent reason.  That will be for the police to investigate and, if charges are subsequently brought, for the criminal courts to determine.

IV.     CONCLUSION

95.Mr. Mok has failed to establish that there was any material irregularity or illegal or corrupt conduct in connection with Dr. Tam’s election.  The Petition is dismissed.  In my view (and I so declare) Dr. Tam was validly elected to represent the IT constituency. 

96.As for Dr. Tam’s application to rectify his Return, leave is granted to Dr. Tam to correct his Return to reflect the items wrongly excluded.

97.I shall hear the parties on costs and consequential orders.

Mr Martin Lee, SC, Mr Hectar Pun and Mr Randy Shek, instructed by Messrs Ho, Tse, Wai & Partners, for the Petitioner in HCAL 141/2008

Mr Daniel Fung, SC, Mr Johnny Mok, SC and Ms Teresa Wu, instructed by Messrs Mallesons Stephen Jaques, for the 1^st Respondent in HCAL 141/2008 and the Applicant in HCMP 202/2009

Mr Kwok Sui Hay, instructed by the Department of Justice, for the 2^nd Respondent in HCAL 141/2008