Read the full judgment text of HCMP 1751/2010 on BabelCite. This Court of First Instance judgment was delivered on 7 January 2011 before Chu J.
Election law – application for extension of time to lodge election return – Elections (Corrupt and Illegal Conduct) Ordinance, Cap.554 – sections 37(2)(a)(ii) and 40(1) & (2) – District Councillor Election held on 18 November 2007 – applicant failed to lodge election return within 30-day statutory period expiring 24 December 2007 – applicant sought extension of time nearly 2 years and 9 months later – whether failure attributable to a ground under section 40(2) – whether court should exercise discretion to grant extension – relevance of delay and integrity of election legislation – candidate's duty to ensure assistants are competent and to maintain proper records of expenses and donations. Whether the applicant had made out a case that his failure to lodge the election return was attributable to a ground under section 40(2) – relevant time is the period leading up to the end of the 30-day period (24 December 2007) – absence from Hong Kong (one trip to Fukien in April 2007) and Mr Tsui's illness/death (December 2009) could not be relied on – however, medical evidence showed the applicant suffered from tendonitis, osteophytes, hypertension, hyperglycaemia, insomnia and fatigue, and section 40(2) does not require illness to be the sole reason – applicant had previously always lodged returns on time, so ill health arguably led him to entrust the task to Mr Tsui. Whether the court should exercise its discretion to grant the extension – court's power is discretionary and must be exercised consistently with the integrity of election legislation (following Re Yiu Chun Fat) – delay of 2 years and 9 months is inordinate, particularly after ICAC interviews in December 2009 and February 2010 – medical evidence showed health had improved in 2008 and applicant could attend District Council and committee meetings in 2008 and 2010 – candidate bears duty to ensure assistants are competent and to maintain proper records – explanations for delay (ill health, Mr Tsui's inexperience and death, second assistant's resignation, difficulty locating receipts) not cogent – real cause was applicant's failure to attach sufficient significance to his election return obligation. Application dismissed – applicant to bear costs of the Secretary for Justice for the first hearing, to be taxed if not agreed.
Legal issues: Whether failure to lodge election return was attributable to a ground under section 40(2) of the Ordinance · Exercise of court's discretion to extend time given the inordinate delay
Outcome: Application for extension of time to lodge election return dismissed.