Read the full judgment text of HCMP 875/2011 on BabelCite. This Court of First Instance judgment was delivered on 24 May 2011 before Deputy High Court Judge Au-Yeung.
Criminal law – Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 – section 34(1) and (4) – printed election advertisements – requirement to show printer's name and address, date of printing, and number of copies, and to furnish two copies to returning officer within 7 days – village representative elections – banners displayed at candidate's café – failure to comply with printing and furnishing requirements – application under section 35 for relief from penalties – burden on applicant – whether non-compliance due to inadvertence, accidental miscalculation or reasonable cause, and not due to bad faith – whether it is just to grant relief – whether ignorance of law may amount to inadvertence – distinction between turning a blind eye and attempting but failing to understand the legal requirement – procedure – commencement of application by Notice of Motion – proper mode of commencement should be by originating summons under Order 8, rule 1 of the Rules of the High Court – no written-law requirement authorising notice of motion – respondent not taking point on defect – court exercising discretion to hear the application on the merits – Halsbury's Laws of England, 4th ed Reissue, Vol 15, para 728, definition of 'inadvertence' adopted – Wong Yee Him, HCMP 611/2000, and Ex Parte Tsang Wai Ming, HCMP 3463/2003, approved – Ex parte Leung Kam Ho Gilbert [1994] 3 HKC 544 applied for principle that relief will be refused where applicant took no steps to learn of legal obligations – facts – applicant had received election materials including Ordinance booklet from Tai Po District Home Affairs Department, confirmed in evidence he had read them – illness (flu and drowsiness) rejected as cause – applicant had not used similar banners in previous election – no question of bad faith – delay in notifying returning officer only 11 days – applicant promptly remedied the omission and made required declarations – it was just to grant relief – application granted – banner excepted from section 34(1) and (4) requirements and applicant relieved from penalties – no order as to costs.
Legal issues: Whether the application should be heard despite being commenced by notice of motion rather than originating summons · Whether the Applicant satisfies the conditions for relief under section 35 of the Ordinance
Outcome: Application granted; the publication by the 1st banner is excepted from the requirements under section 34(1) and (4) of the Ordinance and the Applicant is relieved from the penalties imposed by section 34.
Cites 2 cases