Re Chan Tak Wai

HCMP1915/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1915 OF 2009

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Before:  Hon Chu J in Court

Date of Hearing:  20 October 2009

Date of Judgment:  20 October 2009

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J U D G M E N T

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1.This is an application by the Applicant for relief under section 31(2) of the Election (Corrupt and Illegal Conduct) Ordinance, Cap.554 (“the Ordinance”).  In order that the court may grant relief under the section, the Applicant has to show that the omission, which but for section 31, would be illegal conduct at an election, was due to inadvertence, accidental miscalculation or any reasonable cause and was not due to bad faith.  Additionally, under section 31(2)(b), the court has to be satisfied that it is just that the Applicant should not be subjected to one or more of the penalties or disqualification under the law.

2.I shall first set out the salient facts leading to this application.  The Applicant had been a District Board Councillor for 16 years up to October 2007.  He stood for the 2007 District Board Election, which was held on 18 November 2007.  He was unsuccessful in the election and was not returned. 

3.Subsequently, the ICAC received a complaint regarding some of his election activities.   This led to an investigation and eventually a prosecution for three criminal offences under the Ordinance, two of which are for offering advantages to another person as an inducement to vote, contrary to section 11(1)(a) of the Ordinance, and the third charge is for failing to report election expenses in the election return.  The election expenses in question relate to: (1) wages paid to student nurses for undertaking health check-up services on two occasions; and (2) the costs of ball pens given out to participants during the two occasions.  The subject matter of the third charge is also the subject matter of this application.

4.Briefly what happened was this.  On two occasions on 20 October and 10 November 2007, the Applicant held what was described as a healthcare service in the area where he ran his election campaign.  Some form of body or health check-up services was provided to the participants free of charge.  On the same occasions, ball pens were also given out to the participants.  The Applicant had engaged student nurses to carry out the body check-up services and each of them was paid $35 for each hour of his service.  The evidence shows that on each occasion approximately four hours of services were provided and three student nurses were involved.  Hence, on each occasion, each student nurse was paid $140, giving a total sum of $420.  The total amount involved on the two occasions is therefore $840.

5.With regard to the ball pens, the cost of their acquisition was RMB 980 dollars.  The total amount of election expenses as reported or declared in the election campaign was in the sum of $38,925.30.  It is not in dispute that the inclusion of these two items of expense would not have caused the total amount to exceed the permitted limit of election expenses. 

6.At the heart of this application is: Whether the omission of these expenses from the election return was not due to bad faith.  There is also a second question of whether it would be just to grant the relief sought by the Applicant. 

7.The Applicant's case is set out quite succinctly in paragraphs 25 to 29 of his 1st affirmation filed in support of the application.  Primarily, he said that when he prepared the election return, it never came across his mind to declare the wages paid to the student nurses and also the costs of purchasing the ball pens.  He explained it was because throughout his term as a District Board Councillor, he had provided such healthcare services as part of his regular community service. He had not intended the activities to be solely for promoting his election campaign.  Throughout the years, he had not claimed reimbursement of or included in his office expenses, the wages paid to the student nurses for providing such services.  As to the ball pens, the Applicant said they were not purchased as a promotion item for his election campaign.  They were purchased in October 2006, which was about a year before the election campaign began.  He also said that he had not set out or intended to offer the healthcare services as an inducement to people to vote in his favour. 

8.The major problem facing the Applicant in this application is his subsequent convictions for the offence of offering inducement to vote.  In convicting him, the magistrate found that the provision of the healthcare services did amount to inducement or advantage to people to vote.   

9.On behalf of the applicant, Mr Lee submitted that there was no ill motive for the omission of the student nurses’ wages and the costs of the ball pens from the election return.  It was stressed that since the inclusion of theses expenses would not have led the total expenses to exceed the limit for election expenses, there could be no motive or reason for the applicant to deliberately conceal the expenses.  That, however, is not quite the point.  The important point is: Whether the Court should infer that the Applicant was deliberately concealing the expenses for the purpose of concealing the activities in question because he knew or ought to have known that they were illegal conduct.  In other words, the material issue is whether the omission of the expenses from the election return was for the motive of concealing his criminal activities.

10.As noted above, what stand against the Applicant are his two convictions.  I accept as a matter of law, this court is not bound by the findings of the lower court. However, this court cannot disregard the fact that he had been convicted, which was on the basis that the provision of the health care services, the expenses for which had not been declared in the election return, constituted the offences of offering inducements to people to vote.

11.The Applicant's case in response to this is:  Firstly, the activities were conducted in open.  In his applications to the Housing Society for the use of the venue for conducting these activities, the activities were described and stated to be election activities.  Pausing here, on these documents alone, it will not be open to the Applicant to say that he did not appreciate or that he had no reason to appreciate that he was conducting election activities.  I accept, however, that this does not necessarily lead to the conclusion that the omission of the expenses from the election return was actuated by bad faith because what these documents also show is that he was not hiding or in any way concealing the activities and he had described them as election campaign activities.

12.Secondly, the Applicant contends that the health care services as well as the giving out of ball pens, were not specifically designed for his election campaign.  He had been conducting these activities for some time before the election campaign started and the activities were held at regular intervals. 

13.Thirdly, the Applicant says that throughout there was no occasion or practice of claiming reimbursements for the expenses involved in holding the activities.  They were not included as part of his District Board office expenses because, apparently, he could not have a reimbursement since they were in the nature of community activities or services.  So, it was said on the applicant's behalf, there was no practice or system of filing declarations or making claims for these expenses. 

14.The fourth matter that the Applicant prays in aid is that at the time of the filing of the return, he did not know that the ICAC had received complaints against him in connection with these activities.   

15.The law is trite.  The burden is on the Applicant to demonstrate a lack of bad faith.  The Secretary of Justice has no duty to prove bad faith.  It is not their duty to convince the court that there is bad faith, but they are duty bound to draw to the court's attention matters that have come to their attention and which may cast doubt on the Applicant's case of lack of bad faith. And this is how I understand the stance of the Secretary of Justice in the present application. 

16.On the balance of the evidence and the various matters that I have referred to, I am inclined to accept that the Applicant has shown a prima facie case that the omissions of these expenses from the election return was not occasioned by bad faith on his part.  In considering the issue, I have taken into account the fact that he was convicted of offering inducements to vote.  While this is a relevant consideration, I am of the view that it is not an overwhelming factor that makes the Applicant’s case of lack of bad faith entirely unsustainable. 

17.I also have regard to the submissions of the Secretary of Justice that the Applicant had not explained what steps he had taken to ensure the accuracy of the election return and a full compliance with the election law in relation to the contents of the election return.  The Applicant had had 16 years' experience as a District Board Councillor.  He would have in the past conducted election activities and therefore would have experience of filing election returns.  It is correct that in his evidence he did not elaborate on what steps he had taken to ensure accuracy in the return that he had submitted or to properly discharge his duties under the election law in relation to the contents of the election return.  He merely stated he dealt with the election return on the basis of a draft given by his assistance.  That by itself is hardly sufficient to discharge the duties of a candidate in an election.

18.In the context of the present application, however, this is not a critical or very material fact.  This is because the Applicant's case is that at the time of his making of the election return, it did not occur to him that he had incurred the election expenses for the health care services.  That being the case, even if he had exercised greater care and not simply relied on his assistant, it is probable than not that he would have made the omission.  Hence, whether he had been vigilant in discharging his duties as a candidate in relation to the contents of the election return is not a highly significant consideration.

19.Additionally, Miss Parwani, who appears for the Secretary of Justice, points out that the Applicant did not apply for relief to this court until two days before the trial in the Magistrates' Court was due to commence.  This, in my view, is a matter relevant to whether it is just to grant the relief.

20.No doubt, in seeking relief from the court, the Applicant is under a duty to act promptly.  He cannot be said to have acted promptly because he knew there were complaints against him and he was subject to investigations long before this application was brought.  The fact that he made it just two days before the criminal trial was due to start does not stand to his credit at all for the purpose of this application.  But I am not prepared to go so far as to say that this was an abuse of the court process, or that it would not be just or right to grant him the relief sought, particularly in light of my conclusion on the point of whether the omissions were actuated by bad faith.  Further, although the third charge stems from the same set of facts as the other two charges, different criminal elements are involved.  Indeed, the magistrate had considered it appropriate to sever the charges and to proceed on the other two charges first.  In all the circumstances, I do not feel able to conclude that it would not be just to grant the Applicant the relief he sought although I am aware the result of this application may have a direct impact on the prosecution of the third charge.

21.In conclusion, I grant the relief sought by the Applicant.

Mr Lee Shu-wun instructed by Messrs K Y Lo & Co for the Applicant

Miss Audrey Parwani, Government Counsel of Department of Justice for the Chief Electoral Officer, Returning Officer of the Eastern District (Healthy Village Constituency), Director of Home Affairs, Director of Public Prosecutions and Commissioner of Independent Commission Against Corruption