Wong To Sang v. Secretary for Justice (for and on behalf of the Secretary for Home Affairs)
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
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HCMP 875/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 875 OF 2011 _________________________
BETWEEN
_________________________ Before : Deputy High Court Judge Au-Yeung in Court Date of Hearing : 24 May 2011 Date of Handing Down Judgment : 24 May 2011 ------------------------ JUDGMENT ------------------------ 1.The Applicant (Mr Wong) displayed 2 banners for an election in contravention of section 34 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap.554 (“the Ordinance”). He seeks an order that he be excepted from the relevant requirements and be relieved from the penalties imposed under that section. THE BACKGROUND 2.In 2006 Mr Wong stood for the position of Resident Representative in the Sai Kung North Rural Committee Village Representative Elections 2007. He was not elected on that occasion. 3.Mr Wong ran again for the Village Representative Elections 2011 and was nominated as a candidate. On 24 November 2010, he visited the Tai Po District Home Affairs Department to attend to the nomination affairs. He was given a bag which contained Village Representative Election information materials (“the Materials”). It included the election rules, checklists, forms and a booklet of the Ordinance. 4.On 6 January 2011, Mr Wong engaged a printer to create 2 banners for him. One was to encourage votes for him; the other was an expression of thanks. 5.On 8 January 2011, Mr Wong hung the first banner in the external wall of his café. This banner was in contravention of section 34(1) and (4) of the Ordinance which provide as follows:
The particulars of the printer, the date of the printing and the number of copies printed were not stated on the banners. Neither had Mr Wong furnished copies of the banners to the returning officer before the election or within 7 days thereafter. 6.On the polling day, i.e. 16 January 2011, Mr Wong was elected as a Resident Representative of Nai Chung Village for a term of 4 years. 7.The 2nd banner was hung from 1 February to 31 March 2011, only after the election was over. I have been helpfully reminded by Mr Law for the Secretary for Justice that, for present purposes, this banner did not fall within the application. 8.On 26 January 2011, Mr Wong attended the Tai Po District Home Affairs Department to submit the required declaration. He was informed that the Department had not received his application for election advertising. It transpired that Mr Wong should have made and deposited with the returning officer a declaration and 2 identical postcard-sized colour photographs of each type of election advertisement and the form for permission to display the banner on private premises. The relevant regulations were included in a booklet as part of the Materials. 9.Mr Wong completed the election advertising declaration and the necessary forms for the 2 banners under oath by 31 January 2011 and submitted them to the returning officer. PROCEDURAL DEFECT 10.This application is made by Notice of Motion. According to Order 8, rule 1 of the Rules of the High Court, a notice of motion is used only if required or authorized under a written law. There is no such requirement under the Ordinance or otherwise. Accordingly, the proper mode of commencement should be by originating summons. However, Mr Law has fairly taken no point on this procedural defect. THE LAW 11.Under section 35 of the Ordinance,
12.The power to grant relief under section 35 is discretionary. The burden rests on an applicant to satisfy the Court that the relief should be granted. 13.A useful definition of “inadvertence” can be found in Halsbury’s Laws of England, 4th ed Reissue, Volume 15, paragraph 728. It reads as follows :
14.In the case of Wong Yee Him, HCMP 611 of 2000, 10 March 2000, in paragraph 11 the late Deputy Judge Z. E. Li said:
15.The above passages from Halsbury’s and Wong Yee Him were cited with approval by Lam J in Ex Parte Tsang Wai Ming, HCMP 3463 of 2003. In considering a similar provision under section 40 of the Ordinance, his Lordship added :
ANALYSES 16.The Secretary for Justice has consulted the returning officer for the Nam Chung Village Representative Election, the Director of Home Affairs, Commissioner of ICAC and the Director of Public Prosecutions. The returning officer confirmed that Mr Wong’s version as stated in his first affirmation was generally true and correct. 17.Although his affirmation did not state what he did with the Materials given to him, Mr Wong confirmed in the witness box that he had read them. Because those Materials were quite thick with a lot of details, he might have forgotten some contents after reading. Mr Wong’s reasons for his default were that he suffered from flu at the end of December 2010 and early January 2011 and was not in the right frame of mind or good health at that time. Medication did little to alleviate the symptoms and made him drowsy. He frankly admitted that regardless of his condition, he had overlooked the requirements to complete the form necessary for obtaining permission for display of election advertisements at private premises and to provide 2 colour photos of the advertisement. He knew, however, that he had to declare the advertising expenses with one month of the election. 18.I place no weight on the illness of Mr Wong. That illness did not appear to be serious and medication from a pharmacy was considered sufficient by him. In any case, he has had ample time before he fell ill to read up the Materials. 19.I am, however, satisfied that Mr Wong had read the materials and that it was owing to inadvertence that he had overlooked the requirements under section 34. I am also satisfied that although he had run an election before, he did not use similar banners on that occasion. 20.There is no question as to the good faith of Mr Wong. He clearly followed the requirement of making a declaration of his election expenses in less than one month after the election was over. He was late in notifying the returning officer about the 1st banner by only 11 days and had tried his best to remedy the situation. There is no notice which needs to be given under section 35(2)(a)(ii). It would be just to give him relief in the circumstances of this case. CONCLUSION 21.Pursuant to section 35 of the Ordinance, I grant an order that the publication by the 1st banner be excepted from the requirements under section 34(1) and (4) and relieve Mr Wong from the penalties imposed by section 34. 22.The Secretary for Justice does not ask for costs and I make no order accordingly. 23.I thank Mr Law for his able assistance to the Court.
Applicant appearing in person Mr Lewis Law, Senior Government Counsel of the Department of Justice, for the Respondent |
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