Re Tso Hon Kwong

HCMP1751/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1751 OF 2010

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Before : Hon Chu J in Court

Date of Hearing : 6 October 2010 & 5 January 2011

Date of Judgment : 7 January 2011

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JUDGMENT

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1.This is an application by the Applicant under section 40(1) & (2) of the Election (Corrupt and Illegal Conduct) Ordinance, Cap.554 (“the Ordinance”) for an order allowing him to lodge his election return for the District Councillor Election held on 18 November 2007, notwithstanding that the period permitted for doing so under section 37(2)(a)(ii) has expired.

The Ordinance

2.Under section 37 of the Ordinance, every candidate of an election is required to lodge an election return setting out the expenses incurred and donations received in connection with the election. Section 37(2) sets out the time within which the return must be lodged.  In the case of District Councillor election, section 37(2)(a)(ii) provides that the return must be lodged no later than 30 days after the date of publication of the election result or within such extended period as the court may allow. 

3.The court’s power to extend the time for lodging an election return is set out in section 40 of the Ordinance.  Section 40(1) and (2) provide:

“(1) A candidate who is unable or has failed to lodge an election return as required by section 37 before the end of the permitted period can apply to the Court for an order allowing the candidate to lodge with the appropriate authority an election return within such further period as the Court specifies.

(2) On the hearing of an application made under subsection (1), the Court may make the order sought, but only if it is satisfied that the inability or failure to lodge an election return as required by section 37 was attributable to-

(a) the applicant's illness or absence from Hong Kong; or

(b) the death, illness, absence from Hong Kong or misconduct of an agent or employee of the applicant; or

(c) inadvertence or an accidental miscalculation by the applicant or any other person; or

(d) any reasonable cause,

and was not due to the applicant's bad faith.

The application

4.Before the District Councillor Election on 18 November 2007, the Applicant had served as a District Councillor for 16 years.  He was by then 60 years old.  He stood in the 2007 Election and was successfully returned in the Tai Koo Shing East Constituency of the Eastern District.  The election result was published on 24 November 2007.  Accordingly, the time for him to lodge the election return ended on 24 December 2007.  The applicant did not lodge his election return within the specified time.

5.By a Notice of Originating Motion filed on 14 September 2010, the applicant applied for an extension of time to lodge the election return.   Three grounds were specified in the Notice of Originating Motion, namely, the applicant’s illness, his absence from Hong Kong and also the death and illness of the applicant’s employee.  At the hearing, the principal ground relied on by the applicant is his illness. 

6.In gist, the applicant says that he has since April 2007 suffered from poor health, which deteriorated in 2008 and 2009.  He had entrusted the work of preparing the election return to his election assistant, Mr Tsui Tim.   Mr Tsui, however, had no experience in the work.  He had not kept proper record and receipts of the election expenses and also did not know how to compile the return.  On 18 December 2009, Mr Tsui passed away.  Afterwards, the applicant recruited a part-time assistant, but he later resigned as he was already 65 years old.  In the end, the applicant took up the task himself and completed the election return, which was exhibited to his affirmation in support of this application.  A copy of it together with the relevant documents was also provided to the Registration and Electoral office (REO).    

7.Under section 40(1) and (2) of the Ordinance, the Court may only extend the time for the lodging of the election return if it is satisfied that the inability or failure to lodge the return was attributable to one or more of the reasons stated in section 40(2) and that it was not due to bad faith.   In the present case, the Secretary for Justice is prepared to accept that the applicant’s failure to comply with section 37 of the Ordinance was not due to bad faith.  The only issues to be considered in this application are: (1) whether the applicant has made out a case that the failure was due to one or more of the grounds provided in section 40(2); and (2) whether the court should exercise its discretion to grant the time extension.  I shall deal with these issues in turn.

Section 40(2)

8.In considering whether the grounds under section 40(2) of the Ordinance is made out, the relevant time is the period leading up to the end of the 30-day period specified under section 37, which, in the present case, is 24 December 2007.  For this reason, it is not open to the applicant to rely on his absence from Hong Kong as a ground for seeking relief.  On the evidence, he had only made one visit to Fukien in April 2007 during this period.  Similarly, there is no evidence that Mr Tsui was suffering from any illness during this period and his death did not come about until December 2009.

9.In respect of the applicant’s illness, the evidence adduced by the applicant shows that in April 2007, he went to Fukien, China, for medical consultations and treatments for pain in his right foot.  He was diagnosed to have symptoms of tendonitis, osteophytes and degeneration in the right foot and knee joint.  According to the applicant, the problem in the right foot had restricted his mobility.  Further, as from August and September 2007, he had insomnia, loss of appetite and felt tired easily. After the election, he had to take home rest and had not been able to attend to the compilation of the election return.  He therefore asked, and left it to, Mr Tsui to deal with the election return.  In about mid-December 2007, he discovered that Mr Tsui was having problems in locating the receipts. He therefore helped with the search of the receipts, while at the same time reminded Mr Tsui to complete the task as soon as possible.  During Christmas in 2007, owing to deterioration in his health condition, the applicant went to the Mainland to seek medical treatments.  In the meantime, the time for lodging the return had lapsed.

10.I am prepared to accept that, in the period leading to the end of the 30-day period for lodging the election return, the applicant did not enjoy good health.  In this regard, I have taken into consideration the medical records of Hengyang Health Centre and Qi Dong Clinic, both in Hunan, and also the report of Huaxia Hospital of Tianjin.  Although these records and report were dated subsequent to 24 December 2007, they shed some light on the applicant’s health condition towards the end of 2007.  They indicated that the applicant had hypertension, hyperglycaemia and liver problems.  

11.The crucial point, however, is whether the state of the applicant’s health was the cause of his failure to lodge the election return within the specified time.  On one hand, the evidence shows that despite having problems in his foot and the complaints of insomnia, loss of appetite and feeling of fatigue, the applicant was able to travel to the Mainland, albeit for medical consultations, and was further able to undergo a contested and intense election.  There must be some doubts whether it could be said that his health condition was so poor as to render the applicant unable to attend to the compilation and lodging of the election return.  On the applicant’s evidence, it would appear that the failure to lodge the return within the specified term was more to do with Mr Tsui’s inability to handle the work than the applicant’s illness.

12.On the other hand, Miss Wong for the applicant pointed out that in his previous elections, the applicant was never late in lodging the election return.  It was submitted that, but for his ill health, the applicant would have dealt with the election return personally instead of entrusting the work to Mr Tsui.  Further, but for his health condition, the applicant would have seen to it that the return was completed and lodged within the specified period.  On this basis, it could be said that the failure to comply with section 37 was due to the applicant’s illness.  I am not prepared to say that this is an untenable submission.  In particular, I note that section 40(2) does not stipulate that the applicant’s illness has to be the sole reason for the failure to comply with section 37.  Hence, had it been that the only issue was whether the applicant had made out a case that the failure was due to his illness, I would be disposed to grant the time extension.                 

Delay and the exercise of the court’s discretion

13.The court’s power to grant relief under section 40(2) is discretionary.  In Re Yiu Chun Fat, unreported, HCMP1482/2007 (5 November 2007) at para.12, Lam J observed that it is important that the discretion should be exercised in a manner consistent with the integrity of the election legislation, and that those who participate in elections should be aware that elections and the attending legal obligations are serious matters such that they should take reasonable steps to fulfil their legal obligations as candidates. I respectfully agree.         

14.In the present case, as Mr Suen for the Secretary for Justice rightly points out, the applicant’s delay is a relevant and pertinent consideration in the exercise of the court’s discretion.  When the applicant made this application and provided his election return to the REO in September 2010, it was almost 2 years and 9 months after the statutory period.  It is a serious delay.  Back in December 2009 and February 2010, the applicant had already been interviewed by the ICAC regarding his failure to lodge the election return.  Considering this and the fact that the term of office of a District Councillor is four years, a delay of 2 years and 9 months must be an inordinate delay.  As such, it would be incumbent upon the applicant to give good and cogent explanations for the long delay.

15.The applicant’s reasons for the delay are his ill health, the inexperience and death of Mr Tsui, the resignation of the second assistant and the difficulties in locating the record and receipts.  Concerning the applicant’s health, it is accepted that since 2007 the applicant has not enjoyed good health.  In February 2009, there was suspicion that he had liver cancer. This was not confirmed.  In August 2009, he had two strokes and was hospitalised for some time until September.  In December 2009, he attended the hospital due to chest pain.  For the period from 2008 to early 2009, however, the medical evidence suggested that the applicant’s health had improved.  During this period, the applicant was able to attend all the meetings of the Eastern District Council (EDC) and up to 40% to 50% of the meetings of other committees.  It was only in 2009 that the applicant resigned from these committees and did not attend any of the EDC meetings.  For the first nine months in 2010, the applicant had attended all EDC meetings and on average about 70% of the meetings of the committees.  The evidence therefore suggests that in 2008 and 2010, the applicant’s health condition was not as critical as to prevent him from properly discharging his public duties.  In this regard, it is also relevant to note that the applicant had made a number of trips to the Mainland.

16.As to Mr Tsui and the second assistant, it must be remembered that, as with other candidates of elections, the applicant is under a duty to ensure that his election assistants were competent in and conversant with the delegated tasks.  The applicant suggested in his second affirmation that because Mr Tsui had been in government service for 30 years and had further worked for him since 2004, he thought Mr Tsui was able to deal with the election return.  He had also explained to Mr Tsui what to do.  Notwithstanding all these, it is the applicant’s evidence that as early as mid-December 2007, he had discovered that Mr Tsui was unable to locate the receipts and had difficulties compiling the return.  Yet, he had not stepped in or taken any measure to put an end to the problem.  It was after Mr Tsui’s death in December 2009 that the applicant recruited another assistant, who because of his advanced age, resigned not long afterwards.

17.It is the applicant’s case that both Mr Tsui and he himself experienced difficulties in locating the receipts as there was no proper record of the election expenses.  I have reservations on whether the problem was as severe as the applicant tried to suggest.  Looking at the election return that the applicant provided to the REO and the accompanying receipts, they do not strike me as a very cumbersome task. Quite a number of the receipts were issued contemporaneously.  They are also indicative of the existence of some form of a record of the election activities and expenses.  In any event, as Mr Suen observes, it is the duty of an election candidate to ensure that a proper record of his election expenses and donations was maintained during the course of the election.  Difficulties in collating the relevant receipts after the conclusion of the election therefore do not amount to a good reason.

18.In my view, the applicant’s long delay in making the application and providing the election return cannot be satisfactorily explained by his health condition, the inexperience, death and resignation of his assistants and/or their difficulties in finding the receipts and documents. The real cause for the inordinate delay lies in the applicant’s failure to attach the necessary degree of significance to his obligation to lodge an election return.  He did not afford the matter a high priority and consequently was contented to leave it at large.  In these circumstances, it would not be conducive to maintaining the integrity of our election legislation and would be a wrong exercise of the court’s discretion to grant relief to the applicant.  The application is therefore dismissed.      

Costs

19.Mr Suen acknowledges that the practice of the Secretary for Justice is not to seek costs on these applications, but in view of the inordinate delay, he applies for costs against the applicant in the event the application is dismissed.  Miss Wong, on the other hand, urges the court to make no order as to costs or alternatively not to order the applicant to bear all the costs of the application.  

20.I accept Miss Wong’s observation that the Secretary for Justice has adopted a neutral stance in these proceedings and that the Secretary’s attendance is in fulfilment of his public duties. However, it should also be borne in mind that public funds are involved and that, in most cases, proceedings for relief or exemptions under the Ordinance could have been avoided had election candidates acted with due care and prudence.  Hence, it should not be assumed that the court would invariably make no order on costs.

21.In the present case, the application had taken two hearings.  The adjourned hearing was to enable the applicant to file further evidence to supplement his case.  The second affirmation that was filed subsequently has contained some important particulars and evidence, which could and should have been placed before the court in the first place.  Had this been done and had the applicant be present at the first hearing to give oral testimony to supplement his case, it would not have been necessary to have two hearings.  For these reasons, the applicant should bear the costs of the Secretary for Justice for the first hearing, to be taxed if not agreed.  And I so order.   

Miss Catherine Wong instructed by Messrs Ho, Tse, Wai & Partners for the applicant.

Mr Suen Sze-yick, Government Counsel of Department of Justice for the Chief Electoral Officer, Returning Officer of the Eastern District (Tai Koo Shing East Constituency), Director of Home Affairs, Director of Public Prosecutions and Commissioner of Independent Commission Against Corruption.