Mok Charles Peter v. Tam Wai Ho and Another
Read the full judgment text of CACV 115/2009 on BabelCite. This Court of Appeal judgment was delivered on 9 June 2011.
1. This is Mr Mok's appeal against the dismissal by Reyes J of his election petition concerning the 2008 Election of the Information Technology (IT) Functional Constituency. At that election, Dr Tam was declared the winner. He had received 2,017 votes, beating his only opponent Mr Mok, who had received 1,982 votes, by 35 votes.
Cited by 2 cases · Cites 2 cases
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CACV 115/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 115 OF 2006 (ON APPEAL FROM HCAL NO. 141 OF 2008) ____________
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Before: Hon Tang Ag CJHC, Stock VP and Cheung JA in Court Date of Hearing: 31 March 2011 Date of Judgment: 9 June 2011 ________________ JUDGMENT ________________ Hon Tang Ag CJHC: Introduction 1.This is Mr Mok's appeal against the dismissal by Reyes J of his election petition concerning the 2008 Election of the Information Technology (IT) Functional Constituency. At that election, Dr Tam was declared the winner. He had received 2,017 votes, beating his only opponent Mr Mok, who had received 1,982 votes, by 35 votes. 2.Legislative Council ("LegCo") elections are covered by the Legislative Council Ordinance (Cap. 542) ("LCO"), the Electoral Affairs Commission Ordinance (Cap. 541) ("EACO") and the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) ("ECICO"). Election for LegCo is held once every four years, under the supervision of an Electoral Affairs Commission ("EAC") which is constituted by the EACO. I ignore for the purpose of this judgment, the formation of the first LegCo in accordance with the decision of the National People's Congress of 4 April 1990, by-elections, or elections following upon a dissolution of LegCo in accordance with Article 70 of the Basic Law. 3.Under LCO, there must be a minimum of 42 days and a maximum of 63 days between the commencement of the nomination period and polling date. This period is the "Election Period" as defined in section 2 of ECICO. Election is defined in LCO as:
4.The EAC is headed by a chairman who must be a judge of the High Court, appointed by the Chief Executive in consultation with the Chief Justice. There are two members who are appointed by the Chief Executive, in accordance with section 3 of the EACO. 5.The important functions of the EAC included, issuing:
6.The EACO also provided that the EAC should consult the public in relation to the guidelines unless it was not practicable to do so because of an urgent need to issue, revoke or amend a guideline. Section 6(2) EACO. 7.Also section 6(3) of EACO required the EAC to:
8.However, before the EAC reprimands or censures, it should make a reasonable effort to contact the intended subject and give him a reasonable opportunity to make representations to the EAC as to why the reprimand or censure should not be issued. Section 6(4). 9.Guidelines have been published by the EAC, para 1.21 of which explained:
10.The importance of such Guidelines can be seen from para 1.24 which stated:
11.Needless to say the Guidelines do not take precedence over any legislation, though, naturally, I would accord great respect to any guideline issued by the EAC. The Videos 12.Between 30 May and 30 June 2008, a series of 8 videos (each between 60 and 90 seconds' length) entitled "IT 達人Talk" (known in English as "IT Guru Talk") were broadcasted on Cable TV. During the Election Period (which as noted, was the period between the nomination day, 19 July, and the polling day, 7 September 2008, para 3 above), there was a link to the videos via Dr Tam's websites, for which, Dr Tam paid Cable TV, who owned the copyright of the videos, $20,000. 13.Reyes J provided a helpful description of the contents of these videos. He said:
The Election Petition 14.Section 61(1)(a) LCO provided the grounds on which an election might be challenged by an election petition. Mr Martin Lee, SC contended that Dr Tam was not duly elected on two bases. 15.First, because "corrupt or illegal conduct was engaged in by or in respect of [Dr Tam] at or in connection with the election;" contrary to section 61(1)(a)(ii) of LCO. I will refer to this as the "corrupt or illegal conduct" argument. 16.Section 61 provided the following definitions:
17.Under section 24(1) of ECICO it was:
18.Mr Lee contended that the cost of the production of the videos should have been included in Dr Tam's election expenses, and if so included Dr Tam would have exceeded the maximum amount of election expenses permitted for the IT functional constituency as prescribed by Regulation 4(b)(ii) of the Maximum Amount of Election Expenses (Legislative Council Election) Regulation, Cap. 554D, i.e. $336,000 (the statutory maximum) in breach of section 24(1) of the ECICO. 19.The cost of producing or broadcasting the videos was at least $220,000. I say "at least" because that was the cost to Dr Tam after an 88% discount on Cable TV's published tariffs. Mr Lee submitted that the discount should be ignored unless Dr Tam could prove that the discount was generally available. He relied on para 16.20 of Chapter 16 of the Guidelines entitled "Election Expenses and Donations", where under the term "donation in kind" it said:
20.It probably does not much matter because it is common ground that if the entire cost of $220,000 is treated as an election expense, Dr Tam would have substantially exceeded the statutory maximum. However, I will deal with Mr Lee's submission about the discount later in the judgment. 21.Secondly, because the broadcast amounted to advertisement of a political nature within the meaning of section 12 of Schedule 4 to the Broadcasting Ordinance, Cap. 562 ("BO"), which gave Dr Tam an unfair advantage over Mr Mok and:
22.Section 12 of Schedule 4 to the BO provided:
23.A contravention of this provision may result in substantial financial penalties. Section 28 of BO. 24.Under section 61(1)(a)(iv) an election may be questioned on the ground that a:
25.I will refer to this as the material irregularity argument. Corrupted or Illegal Conduct 26.It is common ground that the expense of an election advertisement should be regarded as an election expense. However, Mr Lee did not contend that the videos were election advertisement. 27.The EAC was of the view that they were not election advertisement. In EAC's letter to Dr Tam dated 29 August 2008 in connection with a complaint to the EAC that the cost of the videos should be included as an election expense, the EAC after referring to the definitions of candidate and election advertisement in section 2 of ECICO and noting the fact that at a press conference on 13 July 2008, Dr Tam had declared that he would participate in the election, and that he had submitted a nomination form on 19 July, went on to say:
28.In this context, the following definitions in section 2 of ECICO may be noted:
29.Whilst not disputing that the videos were not election advertisement, Mr Lee submitted that since election expense is defined in ECICO as:
the expense associated with the videos was an election expense, because the videos were political advertisement within the meaning of the BO. 30.Mr Lee relied on what the learned judge said about the videos in his judgment, as follows,
31.What I have quoted in para 30(1), (2), (3) and (4) can be taken at face value. However, the context of para 30(5) is important. That observation was made by the learned judge when he was dealing with the fact that during the Election Period there was a link to the videos via Dr Tam's websites. It was in that context that the learned judge said:
32.Much of Mr Lee's submissions both before us and below revolved around the question whether the videos could be regarded as political advertisement for the purpose of BO. Whilst such submissions may be germane to his material irregularity argument, in relation to the corrupt or illegal conduct argument, they obscured the true issue. I prefer to focus on whether the expense associated with the videos could be said to have been incurred "for the purpose of … promoting the election of the candidate". 33.Mr Lee correctly submitted that an election expense may be incurred before the election period. 34.The Borough of Oxford (1924) 7 O'M&H 49 (a decision of Sankey and Swift JJ), is a leading authority on the point. There, the court was concerned with section 8 of the Corrupt and Illegal Practices Prevention Act, 1883, which provided:
35.One of the complaints in the election petition was that the successful candidate, Mr Gray, was guilty of illegal practices by spending more than the maximum amount which he was entitled in law to spend in respect of the conduct and management of his election. Mr Gray was a sitting member for Oxford, having won the election held on 15 November 1922 as the Liberal candidate. In May 1923, he caused post-cards to be printed, in order that when the anniversary of his victory arrived in November he could send a message of thanks and goodwill to the electors. The post-card was printed at a cost of £72 17s. The maximum election expense at the time was £547. The cards carried the following words:
as well as a picture of the Houses of Parliament, with an inset of Mr Gray. At that time a Conservative Government, with Mr Baldwin as Prime Minister, was in power. On 25 October Mr Baldwin made a speech at Plymouth which indicated to many people that a Parliamentary Election could not be long postponed; in the afternoon of 13 November Mr Baldwin announced a dissolution of Parliament; on 16 November, Parliament was dissolved; on 17 November, the writ for the election was received at Oxford; on 20 November, Mr Gray was adopted as the Liberal candidate for Oxford City; 26 November was the nomination day; 6 December, polling and declaration of the poll. In the meantime, some of the post-cards were delivered to the post office on 13 November, and the remainder on 14 November, and they were posted on the later date. Counsel for Mr Gray accepted announcement of the dissolution of Parliament on the afternoon of 13 November as the time when a General Election was imminent. 36.The court held that the expense of printing the post cards were election expenses although they were incurred before an election was imminent. Sankey J explained:
37.And Swift J added:
38.On the basis that an election expense may be incurred before an election, Mr Lee went on to submit that the expense incurred in relation to the broadcast of the video is election expense because the videos were political advertisement and they were broadcasted when the election was imminent. 39.However, in The Borough of Oxford, the expense of the postcards was not regarded as an election expense because the postcards were political, they were regarded as election expense because they were used "on account of or in respect of the conduct or management of" the election. 40.Another relevant authority is a decision of the English Court of Appeal, Fiona Jones [1999] 2 Cr App R 253, which is concerned with section 76 of the Representation of the Peoples Act. 41.In Fiona Jones, the Prime Minister announced the general election on 17 March 1997. Mrs Jones was formally adopted as a candidate at a meeting on 29 March 1997. Parliament was dissolved on 8 April 1997. The Newark returning officer received the writ relating to the election on 9 April, and formal notice of the holding of the election was published on 11 April. Mrs Jones was duly nominated before nomination was closed on 14 April. Polling took place on 1 May. She was prosecuted because it was said that she and her election agent failed to declare expenses arising from the rental of an office in Newark (from which she later ran her campaign) during February and March 1997 before the election was called. 42.The judgment of the Court was given by Lord Bingham CJ (as he then was) who said:
43.After saying that the summing up reflected the effect of a long line of cases including McCrory v. Hendron and Another [1993] N.I. 177, DC, Lord Bingham went on to say that at page 195 in McCrory, Kelly L.J. held that section 76 required proof of two elements: that the expenditure should be closely related to the machinery of an election; and that the expenses should be primarily or principally incurred for the promotion of the interests of the candidate. 44.Reyes J said:
45.Mr Lee submitted that the learned judge erred in holding that to qualify as an election expense, it must be established that a payment is "so closely related to the machinery of an election" or that section 76 of the Peoples Act 1983, "contains a similar definition of 'election expenses' as that found in EO s.2." (para 72). Reyes J also erred, Mr Lee submitted, when he took the view that it was not enough that the payment goes towards "promoting a particular person". Mr Lee submitted that the English tests stemmed from the statutory definition of "election expenses" in the UK since 1883 as: "expenses incurred, whether before, during or after the election, on account of or in respect of the conduct or management of the election" whereas in Hong Kong, "election expenses" is defined as: "expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purpose of... promoting the election of the candidate ...". 46.I do not believe the difference in language to be significant. I note the passage in Swift J's judgment in The Borough of Oxford quoted in para 37 above, where he asked:
47.I note also the direction to the jury in Fiona Jones to consider whether the expense was incurred "with the purpose and intention of promoting the candidate's election prospects" which Lord Bingham regarded as succinct and accurate. See para 42 above. 48.It is helpful to note the following passages from Lord Bingham's judgment:
49.The expenses associated with such political activities, for they must be so regarded, were not regarded as election expenses as Fiona Jones shows. 50.I believe expenditure "for the purpose of promoting the election of the candidate" in our definition required the expenditure to be, as Lord Bingham said in Fiona Jones and adopted by Reyes J at para 75 of his judgment, "closely related to the machinery of an election". 51.It follows, I agree, with respect, with the learned judge that an advertisement which merely promotes a favourable image of Dr Tam or promotes him to the IT community is not sufficient. Even when it could be said, they have made him, generally, more electable. 52.Furthermore, whether an expense was so closely connected with an election is largely a question of fact, one on which I cannot, nor would I, disagree with the learned judge. 53.I must deal with the emphasis placed in both The Borough of Oxford and Fiona Jones, on whether an expenditure was incurred when an election was imminent. This formed an important plank in Mr Lee's submission. 54.When considering the concept of an imminent election it is helpful to remember that in the United Kingdom as Lord Bingham LCJ explained in Fiona Jones:
55.I would add that as The Borough of Oxford shows, Mr Gray who was elected on 15 November 1922 faced a snap general election in 1923. 56.In Hong Kong, the situation is different. General elections are to be held once every 4 years. There must be a minimum of 42 days and a maximum of 63 days between the commencement of the nomination period and polling day (the Election Period). I believe it is unhelpful to introduce a concept of a period where an election could be regarded as imminent, for the purpose of the calculation of election expenses. The question, at what time, may an election be regarded as imminent, is of course a question of fact, hence, fact sensitive and uncertain. 57.Mr Lee submitted that the broadcasts took place when the election was imminent. Presumably, he regarded all the broadcasts between 30 May and 30 June 2008 to be caught by the imminence test. 58.In this regard, it is useful to note that in Chapter 16 of the Guidelines which was devoted to "Election Expenses and Donations" para 16.2 provided:
59.Para 16.2 is a helpful guideline and, no doubt, a product of public consultation. It provided clear guidance to a candidate and other persons involved in an election. I am unwilling to engraft, on this guideline, an uncertain period, when an election is said to be imminent. 60.Elections must be allowed to be determined by the electorate. Its credibility depends on it. A candidate who has followed the Guidelines and won an election should not be unseated because of fine arguments. I would be reluctant to hold that, outside of the Guidelines, expenditure promoting a potential candidate when an election could be said to be imminent, which must be a question of fact on which reasonable disagreement is possible, should be included. 61.Further, I would note that the following paragraphs in Chapter 11 of the Guidelines "Election Broadcasting, Media Reporting and Election Forums":
62.These paragraphs highlight the importance placed on the election period and the public declaration of one's candidacy (public declaration) whichever is earlier. I believe the introduction by the court of a concept of an imminent election which may predate either would undermine the Guidelines. Unless compelled by the clear language of the legislation, I would not forsake the clarity of the Guidelines. I have already mentioned the requirement of public consultation before guidelines are made. No doubt the EAC would take into the account the importance of certainty, e.g. from what time should the calculation of election expenses commence? I have alluded to the immense practical difficulty of uncertainty. Given that the court is not unanimous, I believe I should elaborate. How should one know when an election could be said to be imminent? 3 months, 2 months, 1 month? Wouldn't any period be artificial? Might it vary according to the constituency or the elective office? Might it depend on what preparatory steps had been taken by a potential candidate? If an uncertain period is engrafted, should the statutory maximum be revised? Should it remain the same if the expenditure covers a longer period? But how is the statutory maximum to be fixed until it is known what is the period of imminence? 63.In the affirmation of Dr Tam at para 47, he referred to the cost of advertisement boards that were placed at the entrance to the Tate's Cairn Tunnel and Tseung Kwan O Tunnel from March 2008 and April 2008 respectively by Mr Tong Ka Wah, Ronny and Mr Tien Pei Chun James, Dr Tam said:
64.I think such conduct probably reflected the common understanding of Guideline 16.2 and illustrated the danger of interference by the courts. 65.Moreover, if a concept of an election being imminent has any place under our legislation, I can see no reason not to regard the choice by the EAC, reflected in the Guidelines, to adopt the date of public declaration if its earlier than the election period to be the critical earliest date for so many of the provisions, as where the line should be drawn for imminence. 66.Nor would a period spanning public declaration, if earlier, and the election period be unreasonably short. Because as one might expect, it is publicity within such period which is likely to have the most impact on the outcome of an election. Indeed, often it is only when the whole field of candidates are known (after the nomination period has ended) that uncommitted voters would begin to consider the relative merit of the candidates. It therefore makes sense to impose a statutory maximum for expenditure covering the election period or from public declaration, if earlier. 67.Mr Lee has also referred us to cases concerning illegal treating or bribes, in particular, Youghal Election Petition (1869) IR 3 CL 530, which has been referred to in the judgment of Cheung JA which I have the advantage of reading in draft. That was a case of illegal treating. In essence it decided that illegal treating could take place before a person became officially a candidate. There, the respondent arrived at a constituency before the issue of the writ for election and declared he was a candidate and would stand as such at the election to be held. The treating took place before he was a candidate for Parliament which was defined as including:
68.The provision against treating read:
69.In such contest, Monahan CJ said:
70.With respect, I agree with the decision in Youghal. 71.In Hong Kong, such activities are covered by ECICO. For example, s 12(1) outlaws "providing, food, drink or entertainment for another person for the purpose of inducing the other person … to vote at the election for a particular candidate or particular candidates". 72.I have no doubt that such offences may be committed before an election period or before a public declaration of candidacy. However, these offences require proof that the bribe or the treating was for the purpose of "inducing a person to vote at the election for a particular candidate". These requirements are more specific than those required in the definition of election expenses. I do not believe authorities relating to bribes or treating to be helpful in our consideration of election expenses. 73.I have endeavoured to explain above why for expenses to be so regarded, they have to be "closely related to the machinery of an election". And why it is undesirable to adopt an uncertain notion of an election being imminent, a notion on which different persons may come to reasonable but different conclusions. The Irregularity Argument 74.Mr Lee's basic argument is that the broadcast of the videos violated Schedule 4 at paragraph 12 of the BO which provided:
75.Mr Lee emphasised that that advertisement on television has been described as "the most influential advertising option" (Regina (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312. 76.Mr Lee devoted much of his submissions on his point that the videos could be regarded as advertisement of a political nature. He relied on what the majority in the High Court of Australia in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, at 124 (Mason CJ, Toohey and Gaudron JJ) said:
77.Mr Lee submitted that the judge was wrong in not holding that the Videos were of a "political nature", because the Videos were intended by Dr Tam to promote and did promote a favourable image of himself and enhance his popularity in the IT community which comprised all his voters, and emphasised his "fitness for public office" as a legislator for the IT Functional Constituency. 78.In Mr Lee's written submissions, he submitted:
79.Mr Lee's submission has wide and dangerous implications. If he is right, it maybe that a broadcasting media may not permit a politician to air his/her view. It is to be noted that the prohibition in the BO is not confined to the election period. Indeed, as Chapter 11 of the Guideline shows provided equal time is given, during the election period, candidates may be invited to appear on televisions. And they do. 80.Advertisement is not defined in BO. Naturally, most advertisement are paid advertisements but if "advertisement" were to be construed as widely as Mr Lee wished to construe the word "political", unpaid advertisement might also be covered. Moreover, "payment" could take many forms, a politician who agreed to present a programme otherwise than for a market price could be said to have "paid" for advertisement. 81.I would also note that Theophanous, where the observations quoted in para 76 were made, was concerned with an action on defamation and the defence relied on was the freedom under the Australian Commonwealth Constitution to publish material:
82.It does not follow that "advertisement of a political nature" in BO requires so wide a construction. 83.The learned judge said:
84.However, because Dr Tam had not yet officially declared himself, and that it was conceivable that he might have decided not to run and on scrutiny of the videos themselves, Reyes J said:
85.Reyes J went on to say:
86.He then concluded at para 51 that he did not think that the broadcasting of the videos before the Election Period were political broadcasts which gave Dr. Tam an unfair advantage over Mr. Mok. 87.The views of the Broadcasting Authority and the learned judge must command my respect. But I do not believe I need to come to a concluded view on the matter. I prefer to consider, whether, even on the assumption that the broadcasts could be regarded as advertisement of a political nature, they amounted to an irregularity within the meaning of section 61 of LCO. 88.Section 61(1)(a)(iv) of LCO enabled an election petition to be made on the ground of –
89.Section 3 of LCO defined "election" as "an election to elect a Member at a general election …". However, election is given an extended meaning in section 61, it is defined to include "nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer". Thus, an irregularity at the nomination proceedings is covered by section 61(1)(a)(iv). 90.I do not believe the broadcast of the videos, even if it could be regarded as an irregularity was one which "occurred in relation to the election". I believe the expression "in relation to the election" only covers matters or procedure which are closely related to the machinery of the election. Videos uploaded 91.For a fee of $20,000, the videos were uploaded and maintained on Dr Tam's websites. 92.The learned judge found in para 79 that:
93.This is a finding of fact. One which Reyes J was entitled to make. Costs of the videos 94.I return to Mr Lee's argument that the costs of the videos were at $1.89 million, because the 88% discount should be disregarded. 95.The learned judge said in para 69 of the judgment:
96.Mr Lee complained that there was no evidence that there had been any bargaining protracted or otherwise. 97.Mr Lam Wing Kwan Ringo made an affirmation in support of Dr Tam. There he went into great lengths over the evolution of the videos. In para 26, he said when discussing different formats to be adopted for the video:
98.Then in para 27 he said that:
99.Mr Lee did not cross-examine Mr Lam. Mr Lee said that is because the burden of proof was on the Dr Tam to show that the discount was "generally available to all customers". Para 16.20 of the Guidelines. 100.Mr Lee seemed to suggest that para 16.20 must be taken literally. In other words, it was not sufficient that the discount was given at arms' length but it must be proved that it was "generally available to all customers". He further submitted that the burden is on Dr Tam to show that it was so. I do not accept that on an election petition, the burden of proof is on a respondent. But it is not necessary for me to decide this point. I am satisfied that the learned judge's conclusion cannot be faulted. 101.Furthermore, what we are concerned with is the fee ($20,000) which Dr Tam had to pay for using the programme on his site. We have no reason to proceed on the basis that $20,000 was not a reasonable amount. To declare Mr Mok, the winner 102.Lastly, Mr Lee submitted that if we grant the petition we should declare Mr Mok the winner. This is academic, but, in any event, I would not do so. Section 72(2) provided that:
103.We can make no such determination. This is not a case where, for example, that there had been some error in the counting of votes, and that on the correct counting, a particular candidate could be shown to have been duly elected. Disposition 104.For the above reasons, I would dismiss the appeal and make an order nisi that Dr Tam is to have the cost of appeal, such cost to be taxed unless agreed. Hon Stock VP: 105.It seems to me, especially when one examines the testimony of the respondent to the Petition, that he has not been open about his objective in producing and broadcasting the eight videos between end of May and end June 2008. His contention in the course of his evidence, and in the affidavit which he placed before the court below, was that the videos were produced in order to promote the interests of the IT industry. A study of the videos shows that not to be the case, in the sense of that as the prime objective. Their prime purpose, as the judge found, was to promote Dr Tam and, in my judgment, to promote his credentials for the functional constituency for which he was minded to stand. He also said, in his oral testimony, that he was not sure that the title of the episodes (IT Guru) referred to him and that it never occurred to him whether the eight episodes “would have good or bad influence to my candidacy.” Those suggestions do not sit well with the content of the videos, and the timing of their broadcast. It appears obvious that the production of the videos and the broadcast of them was designed by Dr Tam to enhance his standing with potential voters in the functional constituency and one is naturally tempted to the conclusion that any expenditure incurred to that end was an election expense. 106.As against that temptation, which might be said to be a commonsense approach on the facts, lie the cogent factors pressed by the Chief Judge, which suppose, correctly in my respectful view, that the legislature intended as much certainty as was reasonably practicable in the application of the rules for elections prescribed by the Election (Corrupt and Illegal Conduct) Ordinance (ECICO), Cap. 554. 107.Whether at any given stage or in any given circumstance the conduct of an individual becomes conduct prohibited by the ECICO is inevitably a question of the proper statutory construction of the provision which is said to bite and of the facts of the case. 108.The objects of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 are:
109.The Ordinance applies “to all conduct concerning an election, whether the conduct is engaged within Hong Kong or elsewhere.” (Section 5). 110.The Ordinance is designed to promote the integrity of the electoral process and a purposive construction of it is one which has at its forefront the imperatives of transparency, fairness, and a level playing field. It is no doubt with those imperatives in mind that the Ordinance places a limit upon the amount of election expenses that may be incurred by a candidate and requires full and frank disclosure in election returns. 111.Much concentration has understandably been devoted in this case to the definition of ‘election expenses’ by section 2 ECICO, namely:
112.Without going further than the face of that provision, one might readily conclude that, since the purpose of the broadcasts in May and June 2008 was to promote Dr Tam in the eyes of a constituency in the hope of garnering votes, the expenses incurred in their production fell for disclosure and accounting once he became a candidate. 113.But section 2 does not stand on its own. The key provision in the case is section 24, for it is section 24(1) that Dr Tam is said to have transgressed:
114.The question, therefore, is whether the conduct in question, namely, the incurring of expenses in the production of the broadcasts, was conduct at or in connection with the election to be held in September 2008, notice of which election was given on 20 June 2008, and the nomination day for which was 19 July 2008 which, by definition, was also the date upon which the election period commenced. The question posed demands a construction of the statutory provision, a construction which must be purposive. 115.It is evident from the terms of the section 2 definition of “election expenses” that expenses incurred before the election period, the fruits of which are used during the election period, may nonetheless constitute election expenses. See also The Borough of Oxford (1924) 7 O’M & G 49 at 57. 116.What of the expenses of a promotion exercise carried out before announcement of candidature and before the election period? 117.On the one hand, it might be said that the imperative of a level playing field dictates that it would be entirely unfair for a man of substantial means, say, to be permitted to spend significant sums prior to the election period and without announcing his candidature, even though he intended to stand for election, on promotional material used only before the election in such a way as may well influence prospective voters, to the disadvantage of a prospective candidate of lesser means. 118.On the other hand, the legislature must have intended a sensible degree of certainty in the application of the rules. The reality that emerges from experience tells us that between elections, politicians, whether sitting members of a legislature or hopefuls with an eye to the next election, engage – to one degree or another – in electioneering in its broad sense; in other words, in promoting themselves – overtly or by implication – as suited, by reason of their experience, personality or agendas (or a combination of all three) for election to that legislature. It follows that if one deems the phrase “at or in connection with an election” to embrace no more than self-promotion with an eye to election, the consequence becomes significantly unpredictable; and, in my opinion, a significant lack of predictability must be assumed to have been outwith the intention of the legislature. 119.I would not myself pray the Guidelines in support of this conclusion. Guidelines may be incomplete. Guidelines can change but the interpretation of the section’s import must remain constant, whatever the complexion of the Guidelines at any given time. 120.It seems to me that in the context of Hong Kong elections, in relation to a person who ultimately becomes a candidate, the section bites in respect of promotional conduct once that person declares his candidacy, notwithstanding that the election period has not commenced and, further, that it bites once the election period has commenced even if that person has not at that date declared his candidacy. 121.Accordingly, I would hold that the respondent did not fall foul of the provisions of s. 24. 122.Whether the promotional activity constituted a political advertisement is doubtful. I do not dissent from the judge’s conclusion in this regard nor from his attribution of expenses for the cost of placing the material in question on-line. 123.Accordingly, I too would dismiss the appeal and make the order as to costs proposed by the Chief Judge. 124.In relation to the suggestion by my Lord Cheung JA, as to the proper disposition of the case in the event that a breach of section 24 were proved, I would respectfully suggest that it would nonetheless not be open in the circumstances of this case, for this Court to declare under s. 67(2) of the Legislative Council Ordinance that the petitioner was duly elected instead of the respondent. It seems to me, on a natural reading of that provision, that it is directed to cases in which a material irregularity has occurred in the election process, such as polling, irregular votes, or counting, such that it is demonstrated that, but for the irregularity, a person other than he or she whose election is questioned was in fact chosen. Hon Cheung JA: Overview 125.The eight videos were not election advertisements within the meaning of the Elections (Corrupt and Illegal Conduct) Ordinance (‘E(CIC)O’) by reason of the fact that Dr. Tam was not yet a candidate within the statutory definition of a candidate under that ordinance when the videos were first aired. At that time he did not ‘stand nominated as a candidate’ and he had not publicly declared an intention to stand as a candidate. 126.However, in my view, the $220,000 production expenses for the eight videos were election expenses and Dr. Tam had engaged in ‘illegal conduct’ within the meaning of section 61(1)(a)(ii) of the Legislative Council Ordinance (‘LCO’) as defined by section 2 of the E(CIC)O in that he had, in breach of section 24 of E(CIC)O, incurred election expenses in excess of the prescribed maximum amount. Content of the videos 127.The inquiry must begin by ascertaining the nature and purpose of the eight videos. The Judge summarised the contents of the videos are as follows :
128.As found by the Judge, each of the video also contained a profile of Dr. Tam as follows :
The Judge’s view 129.The Judge then held that :
130.The Judge in discussing the question of the prohibition of a licensee from broadcasting political advertisement under the Broadcasting Ordinance (Cap. 562), held that :
131.The Judge then considered the other factors which he said were against the contention that the videos were political, such as they did not say anything about what Dr. Tam proposed to do if elected or why it would be a good idea for him to represent the IT industry in public office. Nor did they criticize the incumbent at the Legislative Council or potential rivals of Dr. Tam. The Judge also considered that the videos were far too frivolous and simplistic to have had a political purpose. At best the videos raised the profile and eccentricities of IT people in the public mind. 132.However, the Judge went on to hold that once Dr. Tam declared himself as a candidate the videos became election advertisements promoting him as a suitable candidate for the IT sector. The videos as promotional material 133.In my view the Judge has taken too narrow a view that prior to Dr. Tam publicly declaring himself to be a candidate, the videos were not to be treated as promotional material for him in the Legislative Council Election. A broader view must be considered, in particular having regard to the following :
134.I have no reservation whatsoever that considering the timing and context of the broadcast, the videos were prepared and aired for the primary purpose of promoting Dr. Tam as a candidate in the 2008 election even before he had formally declared his decision to run as a candidate. In my view the discussion has been sidetracked by the issue of ‘political advertisement’ under the Broadcasting Ordinance. Irrespective whether the videos fall within the statutory ambit of a political advertisement or not, the clear fact that emerged from the evidence is that the videos served to promote the election of Dr. Tam in the forthcoming election. Election expenses 135.The next crucial question is whether the production expenses of $220,000 for the videos come within the statutory definition of ‘election expenses’. In my view, they were election expenses. 136.Unlike the definition of ‘election advertisement’, ‘election expenses’ referred to expenses incurred before, during or after the election period. Under section 2 of E(CIC)O,
The ‘election period’ is defined as the period beginning with the nomination day for the election and ending with the polling day for the election. 137.There is no doubt that Dr. Tam eventually became a candidate for the election and won the election and based on the authorities he had incurred election expenses before the election. Authorities 138.In Youghal Election Petition (1869) IR 3 CL 530, the relevant legislation in Ireland i.e. Parliamentary Elections Act (1868) defined ‘candidate at an election’ as including all persons elected to serve in Parliament at such election; and all persons nominated as candidates at such election, or who shall have declared themselves candidates on or after the day of the issuing of the writ for such election, or after the dissolution or vacancy in consequence of which such writ shall have issued. 139.Section 4 of the Corrupt Practices Act provided that every candidate at an election who corruptly, either before, during, or after any election, did the acts mentioned in the section, shall be deemed guilty of the offence of treating. The prohibited acts included providing any expenses incurred for any meat, drink, entertainment, or provision, to or for any person, in order to be elected, or for being elected. 140.Monahan CJ held that,
141.The authority for this view can be traced to Dorsetshire, Eastern Division, Case (1910) 6 O’M & H 22 at 40 per Lawrance J. 142.Fiona Jones and Another [1999] 2 Cr. App R 253 is a modern authority on the meaning of election expenses. Section 76 of the Representation of the People Act 1983 provided that,
143.Section 118 of the same Act defined ‘election expenses’ as meaning
144.Lord Bingham CJ at 256 stated that :
145.Halsbury’s Laws of England, Vol 15 (4th Ed, Reissue), Para 628 contained a useful summary of the English approach :
Illegal Conduct 146.Section 24 of E(CIC)O is as follows :
147.The E(CIC)O is also targeted at expenses incurred for the purpose of, among other things, ‘promoting the election of the candidate’. Hence the English cases clearly are of assistance in construing the meaning of our legislation. The difference between, on the one hand, ‘election’ in the English legislation and, on the other hand, ‘election period’ in our legislation does not make any real difference in interpretation. 148.While the English legislation referred to the ‘conduct or management of the election’ it is clear from the decisions that those words had been interpreted to cover the ‘prime or principal purpose of promoting the interests of that candidate’. This requirement has been satisfied in the present case. 149.What is effectively being argued on behalf of Dr. Tam is that before the nomination day (i.e. when the election period began) he could not be a candidate and thus no election expenses were incurred by him. This was precisely the same argument that was rejected by the Courts. The statutory definition of a candidate is not a limitation in time so as to exclude payments made before a person comes within that definition. Applying the same method of construction as in the English cases, since Dr. Tam did become a candidate and won the election, the expenses that were incurred before the election period for the production of the eight videos whose purpose was to promote him in the imminent election were caught by section 24. They came within the statutory definition of ‘election expenses incurred at or in connection with the election’. What is contained in paragraph 16.2 of the Guidelines cannot be a substitute for the true legal position. It cannot override a legislation passed after consultation and scrutiny. Issue of certainty 150.The office of a member of the Legislative Council is for a fixed period of four years. That means elections are held every four years. The election has been held in September. The Chief Executive will, of course, have to decide on the exact date of election by an election notice. After the election notice has been given, there is the nomination period. Under section 7(3) of the Electoral Affairs Commission (Electoral Procedural) (Legislative Council) Regulation (Cap. 541 Sub Leg. D), the nomination period must end not less than 28 days and not more than 42 days before the date on which the election is to be held. This means someone who wishes to stand as a candidate will know with some degree of certainty the relevant milestone dates for the election. 151.The promotion by a candidate for the election would naturally be near the election period. Take the present case as an example, the 2008 Legislative Council election was held on 7 September 2008, the notice of election was issued on 20 June 2008 and the video were broadcasted about three months before the election on 30 May 2008. 152.Inevitably when the legislation uses terms such as ‘before, during or after’, the whole of the circumstances must be looked at in deciding whether the expenses are within the ambit of the legislation. A measure of common sense has to be applied. Should the authorities decide that for the sake of administrative convenience, some specific cut off dates are to be adopted, then it is for them to use clear language or introduce measures to carry out that intention. As it is, the issue of uncertainty simply does not arise. Breach 153.Once the $220,000 was caught by definition of election expenses, then it must be this sum and not merely the $20,000 licence fee paid for the copyright of the videos that constituted Dr. Tam’s election expenses. 154.If $220,000 was to be included as election expenses then Dr. Tam must be in breach of section 24 of E(CIC)O because Dr. Tam’s aggregate election expenses exceeded the prescribed maximum election expenses which in term would constitute illegal conduct under section 61(1)(a)(ii) of the LCO. There is no respondent’s notice for relief under section 40 of E(CIC)O. Not necessary to consider issue of material irregularity 155.Having reached this conclusion it is not necessary to consider whether the action by Dr. Tam in causing the videos to be displayed on pay television, constituted material irregularity in relation to the election within the meaning of section 61(1)(a)(iv) of LCO. Declaration 156.In my view the petitioner Mr. Mok has made out a case that Dr. Tam had engaged in illegal conduct and that he was not duly elected. I would allow the appeal with costs nisi to Mr. Mok. No need for by-election 157.The present petition was lodged pursuant to section 61(1)(a) of the LCO which provides that,
158.Section 67(2) of the LCO further provides that,
159.In my view section 67(2) requires this Court (which, in the light of decision of the Court of Final Appeal in FACV 8/2010, must include this Court) to determine, in the event that it has determined Dr. Tam not duly elected, whether someone else was elected. In my view, in the light of section 61(1)(a) of the LCO the determination whether someone else was elected is not confined to election material irregularity but to all the four situations provided in section 61(1)(a). 160.There were only two candidates in the IT constituency. If Dr. Tam is disqualified then Mr. Mok who received 1,982 votes and lost only by 35 votes to Dr. Tam must be entitled to be declared to be duly elected at the election. I have no difficulties in reaching this decision. This is not a case where, for example, there are two remaining candidates after a third one is declared not duly elected and these two had each received the same number of votes. In such a case the Court cannot determine who should be properly elected instead. A by-election is only to be called for under section 36(1)(d) of LCO if the Court determines that no other person was duly elected instead. Hon Tang Ag CJHC: 161.By a majority, the appeal is dismissed with a cost order nisi in favour of the 1st Respondent.
Mr Martin Lee, SC, Mr Hectar Pun and Mr Lee Siu Him, instructed by Messrs Ho, Tse, Wai & Partners, for the Petitioner Mr Daniel Fung, SC, Mr Johnny Mok, SC and Ms Teresa Wu, instructed by Messrs DLA Piper Hong Kong, for the 1st Respondent Please refer to FACV2/2012 for the relevant appeal(s) to the Court of Final Appeal. | |||||||||||||||||||||||||||||||||
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