Ho Chun Yan, Albert v. Leung Chun Ying and Another

HCAL 85/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 85 OF 2012

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Before: Hon Lam JA in Court (Sitting as an additional Judge of the Court of First Instance)

Date of Hearing: 25 September 2012

Date of Judgment: 5 October 2012

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J U D G M E N T

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1.At the hearing on 25 September 2012, this court heard submissions from the parties on the orders that the court should make in light of my judgment of 12 September. I also heard submissions on the application for extension of time and the application for amendment of the election petition. There is also a summons taken out by the 1^st Respondent for trial of preliminary issue. This court indicated that the summons would only be dealt with after the court decides to grant extension of time. Thus, that summons was adjourned.

2.Regarding the orders that the court should make in light of the judgment of 12 September, parties were in agreement that I should grant a declaration in terms of a draft prepared by Mr Wong SC at para 24 of his skeleton submissions of 20 September 2012. I am satisfied that it is appropriate to grant such declaration in view of my judgment of 12 September. This court therefore grants the following declarations,

“1. Subject to paragraph 2 below, the time limit set out in section 34(1) of the Chief Executive Election Ordinance (Cap 569) (“the CEEO”) for the lodging of an election petition questioning an election under section 32 of the CEEO, namely within 7 working days after the day on which the result of the election is declared under section 22(1AB) or section 28 of the CEEO, is unconstitutional.

2. A remedial interpretation should be applied to section 34(1) of the CEEO to read in a judicial power or discretion to extend the time of the lodging of the election petition, subject to, mutatis mutandis, the same conditions as laid down by section 39(2) of the CEEO for applications for extension of time to apply for leave to apply for judicial review.”

3.Parties also invited the court to give a direction under Order 59 rule 21(3) as to whether one can appeal against the order embodying the said declarations as of right. Order 59 is only applicable in respect of an appeal to the Court of Appeal.  I was told by counsel that there is disagreement between them as to whether the appeal should go to the Court of Final Appeal or the Court of Appeal. It is not for me to resolve this disagreement. For the sake of caution and in line with the spirit of Order 1A rule 1, I think it is sensible for this court to give a direction under Order 59 rule 21(3) just in case that the proper avenue of appeal is to the Court of Appeal. I must stress that my acceding to the joint request of the parties under these circumstances and the giving of such direction should not be construed as a holding by this court by implication that the appeal should go to the Court of Appeal. 

4.I agree with the analogy drawn by Mr Wong with a determination under Order 14A. The declarations are granted in a process akin to Order 14A, albeit through the route of Rule 14 of the Chief Executive Election (Election Petition) Rules. It is a summary determination of the substantive rights of a party, viz whether there is any right to seek extension of time for lodging an election petition after the expiration of the 7-day period under Section 34 of the CEEO. I will therefore grant a direction that if the proper avenue of appeal were the Court of Appeal an appeal will lie as of right.

5.In respect of the order to be made on the striking out of the pleadings, I should consider it together with Mr Lee SC’s application to amend. The proposed amendments are set out in a draft attached to the summons of 20 September 2012. In my judgment of 12 September 2012, I held that the first statement does not come within the scope of Section 26 of the ECICO. Thus, the allegations with respect to the first statement, insofar as they are relied upon as a separate ground, should be struck out. But Mr Lee had taken up the course of pleading innuendo in respect of the second statement by reference to the first statement, see the new para 118A. To that extent, the references to the first statement should be allowed to remain.

6.As regards the third statement, Mr Lee tried to justify its retention notwithstanding his concession that it cannot be relied upon as a ground. He said the allegations were relevant to the good faith or innocence of the 1^st Respondent and may therefore be relevant. Thus, in his amendments, he made some cosmetic changes to the reference to the third statement. I think, at the highest, these allegations are only matter of evidence and they are not material facts. They should not be contained in the election petition.

7.Likewise, the additional matters raised in paras 29 and 38 are, at the highest, matters of evidence. In fact, as the matter stands at the moment, I do not regard the 1^st Respondent’s evincing of an intention to run for the office in a private conversation in 2009 as having any bearing on the issues that the court need to decide in this election petition. Mr Lee properly disavowed any claim that such private conversation could have pushed forward the date of public declaration of intention to stand for election in any way. Nor can I see why it is necessary to add the plea as to the publication of a summary by Ming Pao Daily News to para 38. As they are not material facts, I do not see any grounds for permitting these additional matters to be added to the election petition. Being in mind the stringent time limit for election petition and the underlying policy of speedy determination of election petition, the scope for allowing amendments to an election petition is narrower than other pleadings: see Maude v Lowley (1874) LR 9 CP 165; Halsbury’s Law of England 4^th Edn 2007 Reissue Vol 15(4), para 784; Re Wellington Central Election Petition [1973] 2 NZLR 470, andin line with the underlying objective under Order 1A rule 1 the court should not allow an amendment unless it is a material factual allegation in respect of existing grounds of challenge. If the court readily allows evidence to be crept in by way of amendment on the ground that they are relevant to existing charges, there is a risk that at a later stage a petitioner may “piggy-back” upon such amendments to advance new grounds for challenge: see Dhillon v Siddiqui [2007] EWHC 2936 (Ch); Harland & Wolff Trustees Ltd v Aon Consulting Ltd [2010] ICR 121. In my view, insofar as additional evidence which supports existing grounds of challenge is concern, the proper course is to put them in by way of further affidavits or affirmations rather than by way of amendments to the election petition. The election petition should be a focused document rather than one sprinkled with background materials and evidence.

8.Before I make any specific order on the striking out and the application for amendment, I need to consider the application for extension of time. If I conclude that time should be extended, I shall come back to this aspect of the case. If I conclude that time should not be extended, the whole election petition would be dismissed and there is no need to make a separate order for these applications.

9.I held in my 12 September judgment that the criteria under Section 39 of CEEO should be applied with suitable modification to an application for extension of time in respect of the lodging of election petition. The criteria are,

(a) the petitioner has used his best endeavours to commence the proceedings within the 7 days; and

(b) granting the leave applied for is in the interest of justice.

Further, even if the criteria are satisfied, the court still has a discretion to exercise because section 39(2) provides: “the court may grant leave”. In other words, the court may decide not to grant extension of time even if the criteria are satisfied. But the court may not grant any extension if the criteria are not satisfied.

10.Mr Lee submitted that Mr Ho satisfied the first limb because there was nothing he could do within the 7 days even with his best endeavours as he only acquired the relevant knowledge well after the 7‑day limit. The UBWs of the 1^st Respondent was only revealed by Ming Pao on 21 June 2012 and by then the 7-day limit had long expired.

11.On the other hand, Mr Wong submitted that “best endeavours” means “a diligent attempt to carry out an obligation”. Thus, counsel submitted, in order to satisfy this limb, a petitioner has to demonstrate that he has actively or diligently taken steps to lodge an election petition within 7 days but has been unable to do so despite his best endeavours. If a petitioner made no attempt at all, irrespective of the reasons for such omission, the first limb cannot be satisfied. Whilst counsel recognized that it would effectively exclude cases where a ground for questioning the election is only discovered after the expiration of the 7-day time limit, Mr Wong submitted that it is justified because of the strong public interest in the speedy determination of electoral challenges and the importance of certainty and finality with regard to such challenges.

12.Mr Mok SC referred to the meaning of “best endeavours” in Black’s Law Dictionary (7^th edn) which was also quoted by Mr Wong.  He submitted, whether one counts from 25 March or from 21 June 2012, Mr Ho had not used his best endeavours to lodge the Petition within time. 

13.I do not understand the jurisprudential basis by which Mr Mok transposed the 7-day limit to a period starting with the date of discovery. That is not what is required under the first limb. Insofar as it is contended that the degree of diligence after the discovery of the ground is relevant under the second limb, I have no difficulty with the proposition.  But that is quite independent from the 7-day primary time limit.

14.Though I agree that the first limb does require due diligence on the part of the petitioner, I do not accept Mr Wong’s construction of the best endeavours requirement. Whilst there may come a point in time where it would be too late for a previously undiscovered ground to be advanced, I am of the view that this should be considered in the context of the second limb. Based on the submissions advanced before me, I cannot accept that the first limb is there to exclude cases where a ground is not discovered before the expiration of the 7-day time bar.

15.At the same time, I do not accept that since Mr Ho did not know about the UBWs at the 1^st Respondent’s properties within the 7‑day limit he could satisfy the first limb by doing nothing. As I said, the use of best endeavours involves due diligence. In my view, it includes due diligence in terms of acquiring the relevant knowledge. Thus, depending on the circumstances of the case, the subsequent report of a matter by a news media may or may not exonerate a petitioner in terms of his inaction within the 7-day time bar.

16.In the present case, Mr Ho said the following at para 10 of his 2^nd Affirmation,

“Indeed, because of the 1^st False Statements which were generally believed to be true, no one suspected that there were in fact UBWs on the Properties of Mr CY Leung. …”

17.This was not challenged by the 1^st Respondent. Neither did Mr Mok suggest that Mr Ho should have discovered the UBWs within the 7-day period if he had exercised due diligence.

18.On the facts of the present case, I am satisfied that Mr Ho met the requirement of the best endeavours limb.

19.The more difficult question is whether it is in the interest of justice to extend time. As a general proposition, I agree with Mr Wong’s submission that lack of knowledge within the 7-day period cannot, of itself, without more, be a sufficient reason for extending time in the interest of justice. Otherwise, the legislative intent of sections 34 and 39 would be completely frustrated and the legitimate aims of certainty and speedy determination of challenges to election cannot be achieved.

20.I believe the proper consideration under the second limb is to ask whether it is just to extend time. In answering that question, the court must have regard to the underlying policy for setting strict time limits for these challenges. Thus, the formulation of the criteria is stricter than the usual test applied by the court in exercising its judicial discretion to extend time in legal proceedings and, in line with the underlying policy for CEEO, this discretion should only be exercised sparingly[1].

21.As I said in my judgment of 12 September 2012, challenges to election cannot simply be viewed as a contest between the petitioner and the respondent. There is a strong public interest element being involved. Thus, in considering whether it is just to extend time, public interest must be taken into account. I have identified the competing interests in this context at paras 97 and 98 of that judgment.  Having regard to these competing interests, it would obviously be against public interest to grant an extension of time to a petitioner to advance a challenge of doubtful merit. In this connection, it is apparent from the legislative scheme of CEEO that the test for extension of time should be more stringent than that for extending time for leave to apply for judicial review in ordinary matters (viz other than those challenging the outcome of an election). Section 39 sets a special time limit and a specific test for extending time for judicial review challenging the outcome of an election (in the sense as provided for under Section 39(1)). Thus, Mr Lee’s reference to cases for extension of time in usual judicial review cases is, with respect, not of much assistance in the present context.

22.Though we are not concerning with extension of time for leave to appeal, and as Mr Lee quite rightly pointed out we are thus not dealing with a situation where a petitioner has already had his day in court in going through a trial at first instance, given the underlying policy for speedy determination and certainty, I am of the view that the factors for consideration of extension of time for appeal are equally relevant to the question that I now have to consider: whether it is just to extend time for a challenge to be brought by way of election petition. The factors relevant to the usual exercise of judicial discretion in extending time are: (a) the length of the delay; (b) the reasons for the delay; (c) the prejudice to the other parties; and (d) the merit of the case. In addition, in light of what I said above as regards the public interest element, the merit of the case should assume a greater significance than that in usual adversarial litigation. 

23.I agree with Mr Mok that in a case of substantial delay (like the present one where the petition was lodged and the application for extension of time was made after the assumption of office by the Chief Executive), the merit of his case has to satisfy a higher threshold than one merely surviving a striking-out. Thus, my refusal to strike-out the case of Mr Ho in respect of the second statement is not enough. I must therefore re-visit the question of merit in the context of the application for extension of time.

24.As regards the standard which a petitioner must meet, Mr Mok cited the following judgment of McCarthy J in Bearman v Hardie Boys [1973] 2 NZLR 204 endorsed and applied by Cooke J in the context of an election petition for parliamentary election in Re Wellington Central Election Petition, Shand v Comber [1973] 2 NZLR 470 at p 478,

“If a prospective claimant … wishes to have time extended, we believe that he should not only show reason why in the circumstances of the case the delay should not count against him, but also should be required to persuade the Court he has a claim which, if it be allowed to be prosecuted, will have some reasonable chance of success. … Unless he does that, it may be impossible for the Court to feel satisfied that on balance it is just that the time be extended, and in every case that is the test: whether it is just in all the circumstances.”

25.Cooke J applied that test (see p 479 lines 20 and 21) and concluded later,

“In short we do not consider that the petitioner has made out a sufficiently strong case for the exercise of the Court’s discretion in his favour. In general the public interest requires early finality and certainty in the results of parliamentary elections. In the present case it has not been shown that a departure from that principle would be just.”

26.In Hong Kong, the merit threshold for extension of time for appeal is real prospect of success, see Secretary for Justice v Hong Kong & Yaumati Ferry [2001] 1 HKC 125.

27.It may be a fine point for debate whether there is any difference between a test based on real prospect of success and a test based on some reasonable chance of success. In Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at para 15, in  adopting the test of reasonable arguability as the threshold for granting leave for judicial review in ordinary cases, Chief Justice Li equated that with realistic prospect of success. His Lordship also said, in the context of ordinary judicial review applications,

“It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed.”

28.Real prospect of success is generally understood amongst lawyers to be a higher threshold than reasonable arguability. In the present context, I am of the view that the test of real prospect of success should be applied for assessing the merit of the election petition in determining whether it is just to grant an extension of time. 

29.Mr Lee had tried to persuade me that I was wrong in concluding that the first false statement cannot support a separate ground of challenge. Despite what he said in his written submissions, I still take view that the first statement is outside the scope of Section 26 of the ECICO for the reasons I gave in my 12 September judgment.

30.I will therefore concentrate on the second statement. Unlike the situation in the context of a pure striking-out application on the basis of no reasonable cause of action, this court is not confined to the role of examining the position on question of law (as stated in para 160 of my judgment of 12 September). In assessing whether the case of Mr Ho on the second statement has a real prospect of success, the court may also examine the strength of the case provisionally as an arbiter of fact.

31.I was invited by Mr Lee (with the consent of Mr Mok) to view the video of the TV debate. I did so several times before I write this judgment. I also viewed the video in the light of Mr Lee’s and Mr Mok’s submissions on the meaning of the second statement.

32.Before I discuss the meaning of this statement, I should remind myself on the relevant legal principles. In my 12 September judgment, I have alluded to some relevant principles, in particular the one-meaning rule[2]. The arbiter of fact (and this is the role I am assuming in the present context, albeit on a provisional basis, as opposed to the one I took in dealing with the application to strike-out) is to reach a conclusion on the one and only meaning that the readers as reasonable men should have collectively understood the words to bear even though in reality the words are reasonably capable of bearing different meanings to different persons. In respect of innuendo meaning, the test is the same although the arbiter of fact should take into account of the extrinsic facts pleaded in support of such meaning, see Oriental Press Group v Next Magazine CACV 1006 of 2000, 17 April 2002, para38; Baturina v Times Newspapers Ltd [2011] EWCA Civ 308 at para 56.

33.There is no dispute that the correct principles are set out at para 14 of the judgment of Sir Anthony Clarke MR in Jeynes v News Magazines [2008] EWCA Civ 130.

“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at paragraph 7 and Gatley on Libel and Slander (10^th edition), paragraph 30.6). (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense." Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.”

34.The following observations of Gray J in Charman v Orion Publishing Group Ltd [2005] EWHC 2187 (QB) at para 11 must also be borne in mind,

“It appears to me to be particularly important where, as here, a judge is providing written reasons for his conclusion as to the meaning to be attributed to the words sued on, that he should not fall into the trap of conducting an over-elaborate analysis of the various passages relied on by the respective protagonists. The parties are entitled to a reasoned judgment but that does not mean that the court should overlook the fact that it is ultimately a question of the meaning which would be put on the words of the book by the ordinary reasonable reader. Such a hypothetical reader is assumed not to be a lawyer. He or she is very unlikely to read the whole book in a single sitting or to compare one passage with another or to focus on particular phrases. The exercise is essentially one of ascertaining the broad impression made on the hypothetical reader by the book taken as a whole.”

35.Since we are dealing with an election debate which was watched by the general public over television, Mr Lee also stressed the importance of the context and overall message of the programme. Counsel referred this court specifically to paras 7 and 9 of the judgment of Eady J in Kevin Bond v British Broadcasting Corporation [2009] EWHC 539 (QB). At para 9, the learned judge said,

“It is important to acknowledge that assessing the meaning(s) of an hour long television programme is to a large extent a matter of impression. Yet it is also necessary to remember that the test is objective, so that one must always have in mind how the reasonable viewer would interpret it. Nonetheless, it is recognised in the authorities that the judge can take into account his or her own subjective reaction as part of the process. Beyond that, one must not be over-analytical, in the sense of subjecting the text to a leisurely or legalistic breakdown: ordinary viewers will not have had that opportunity. The overall flavour of a programme may contribute to an interpretation which would not necessarily be found when subjecting the text to piecemeal analysis. There is a risk that such an exercise will focus on the trees and miss the wood.”

36.I should put down a caveat here. Submissions before me focused on how the court should reach conclusion on the meaning of the second statement by reference to the law of defamation. Though Mr Mok had at an earlier stage advanced a general submission that one must not transplant concepts of defamation law onto a challenge based on Section 26 of the ECICO in dealing with the concept of publication, counsel did not make this submission again in the context of innuendo meaning.  As it will be apparent below, I do not find it necessary to consider the questions whether the concept of innuendo can be applied to Section 26 and if it were applicable, whether it applied with its full rigour (in that the maker of a statement would be liable for an innuendo meaning even though he could not have foreseen that some readers, with some extrinsic knowledge, would reasonably understand the statement to have such a meaning[3]). But this judgment should not be read as my endorsement of the applicability of the concept of innuendo to a challenge based on Section 26 as the point has not been argued before me.

37.With these principles in mind, I shall start with an examination of the context of the debate which forms the overall context of the second statement. The debate was a debate between the three candidates for the 2012 Chief Executive Election.

38.In the Petition, Mr Ho pleads that UBWs is one of the central issues during the 2012 Chief Executive Election, see paras 29 to 39. The 1^st Respondent made a public announcement of his intention to stand as a candidate on 27 November 2011, one day after Mr Henry Tang announced his intention on 26 November 2011. According to the Petition, the UBWs on the property of Mr Tang were first reported by Ming Pao on 13 February 2012. Further revelations as to the scale of the UBWs were made in the press in the subsequent days. The effect of the UBWs scandal relating to Mr Tang is pleaded as follows at para 38 of the Petition,

“This saga attracted huge interest on the part of the media, and was generally considered to be the watershed in the contest between the two main protagonists, Mr Henry Tang and Mr CY Leung, which caused Mr Henry Tang’s popularity rating to drop significantly and from which he never recovered.”

39.I accept that Mr Tang’s UBWs was an issue in the election and his handling of the matter did affect his popularity rating. But I think it is too much exaggeration to regard this issue as a central issue in the election. Further, by the time of the debate on 16 March, the issue about Mr Tang’s UBWs had been discussed for quite some time and whatever impact it might have on the election has taken its toll (bearing mind that the election took place on 25 March). In this connection, though the events leading to the debate form part of the background to it, one must not automatically attribute every implication from such events to whatever statement made by a candidate without regard to what were actually said by him. Otherwise, one runs the risk of drawing adverse inferences merely by virtue of the presence or a rather neutral utterance of a candidate on an occasion where such past events were brought up by others. In my judgment, that could not be the right approach in respect of a challenge based on Section 26 of the ECICO. 

40.Section 26(2) focuses on the publication of a materially false or misleading statement by a candidate. It is not about the impression created by the conducts of a candidate in general. Therefore, the starting point is the statement published and the inquiry should be directed towards the meaning of that statement. The falsity and the misleading effect must come from the statement, not anything else. I shall illustrate this proposition by an example which is pertinent in the present context. A viewer of the debate may be prompted by a mere reference to Mr Tang’s UBWs (say, by virtue of a question asked by one of the representatives of the media) to recall that the 1^st Respondent had made the first statement in the past and for the flash of a second remember that the 1^st Respondent had told the press that he had no UBWs. But that would not be attributable to a statement made by the 1^st Respondent at that debate. That would not turn whatever said or not said by the 1^st Respondent at the debate into a false statement within the scope of Section 26(2). In short, Section 26(2) only catches specific statements coming within its scope, not everything done or omitted to be done by a candidate whether before or after the commencement of the election period.

41.The issues canvassed in the debate were wide-ranging. In this respect, the contents of the debate speak for itself. At para 40 of the Petition, it was pleaded that one of the central issues in the Chief Executive Election Debate held on 16 March 2012 was the UBWs in Mr Tang’s house. I cannot accept this as an accurate characterization of the issues in the debate. Though there were instances where questions were asked about Mr Tang’s handling of the UBWs at his house in the debate, I do not think a reasonable viewer of the debate would regard this as one of the central issues. The debate was organized in a professional manner and apart from statements and questions from the candidates themselves, there were questions asked by representatives of the public media and members of the public. Different sessions of the debate covered topics relating to the political developments in Hong Kong and topics relating to socio-economic situations in Hong Kong.

42.The format of the debate was that it started with an opening statement by each candidate for one minute. Then there were questions from representatives of the media to each candidate. After that candidate had answered, the other candidates could follow-up with questions to the same candidate who was given limited time to respond. This was followed by questions put to each candidate by representatives of members of public. There were several rounds of these question and answer sessions alternating between questions by representatives of the public media and those by members of the public.   After that, there were sessions where each candidate took turn to control the use of time.  The controlling candidate could put allegation to his opponents and controlled the time given to the opponents to respond.  At the end, each candidate had 2 minutes to make a closing statement.

43.The second statement was made by the 1^st Respondent by way of a follow-up “question” to Mr Tang in respect of a question from Ms Ng of Asia Television. She referred to the scandals besetting the election and asked Mr Tang whether it would have been better for him and the public if his UBWs were not revealed. The crux of the question was to solicit Mr Tang’s view on his scandals.

44.After Mr Tang gave his response, Mr Ho asked a follow-up question in respect of Mr Tang’s handling of the scandals. Again the focus was on Mr Tang.

45.When it came to the 1^st Respondent’s turn to ask follow-up question (after Mr Tang had answered Mr Ho’s question), he put to Mr Tang how people perceived his handling of his UBWs as openly lying to the public until the media reported on the details of the UBWs. This was the second statement, the original of which I had already quoted in my 12 September judgment.

46.There is disagreement between counsel as to whether the second statement was a question (as contended by Mr Mok) or a statement (as contended by Mr Lee). I do not think the court should subject the words of the 1^st Respondent to an over-elaborate and legalistic analysis. For present purposes, the crucial issue is whether the second statement was understood by a reasonable person watching the debate, either with the knowledge of the first statement (in the innuendo challenge) or without such knowledge (in the ordinary and natural meaning challenge), as the 1^st Respondent asserting that he himself had no UBWs at his properties.

47.Even giving due allowance to the permissible loose-thinking on the part of a reasonable audience, and bearing in mind the context as drawn to my attention by counsel, I do not think there is a real prospect of Mr Ho establishing the meaning for the second statement as alleged by him in his Petition. The immediate context of this part of the question and answer session focused on Mr Tang’s own UBWs and his handling of the same. There was no hint or suggestion whatsoever that any of those who spoke (whether by way of questions/statements or by way of answers) had addressed his or her mind to the legality of the structures at the properties of the 1^st Respondent.

48.Paragraph 113 of the Petition pleaded the context which Mr Ho relies upon to contend that a reasonable person would infer from the second statement the 1^st Respondent was making an assertion of fact that he had no UBWs at his properties. Mr Ho said the relevant context was that at the debate the two main protagonists, Mr. Tang and the 1^st Respondent, were attacking each other in order to promote himself and prejudice the election of his main opponent. No doubt in making the second statement the 1^st Respondent was attacking Mr Tang. He attacked Mr Tang’s integrity in not being forthcoming about his UBWs. However, it is still a quantum leap to infer from that the 1^st Respondent was at the same time making a statement about his own properties.

49.As I said above, the focus of Section 26(2) was on the statement made by a candidate. And it has to be a statement coming within the scope of Section 26(2). I have already explained in my 12^th September judgment why a statement made before the election period or the public declaration of intent to run for election does not come within the scope of Section 26(2). Irrespective of what the 1^st Respondent had done or said prior to his public declaration of intent, so long as he did not make any statement about the lack of UBWs at his properties after his declaration on 27 November 2011, there is no viable challenge under Section 26(2).

50.Mr Ho’s contention at para 113 of the petition tantamount to asserting that given the competition between the 1^st Respondent and Mr Tang in the election, whenever the 1^st Respondent attacked Mr Tang on a topic he was at the same time making an implicit statement of fact about himself. In the context of the debate on 16 March and a statement made in the course of a follow-up question, I do not think this is how a reasonable person would understand the second statement. The attack is understood as an attack focused on Mr Tang’s handling of his UBWs. One must bear in mind that the debate was a continuous process. As soon as the 1^st Respondent stopped in his second statement, Mr Tang had to respond immediately.  The audience did not have time to pause and ponder upon whether, apart from the attack, the 1^st Respondent was also making a statement of fact about himself. He would not subject the second statement to the analysis as Mr Ho did in his Petition. In this connection, what Gray J and Eady J said in the passages cited above is relevant.

51.I do not think the introduction of the knowledge as to the first statement on the part of some people watching the debate would make any difference. One must not confuse the impression derived from the first statement with the impression derived from the second statement. For those who had knowledge about the first statement, they would acquire the impression that the 1^st Respondent did not have any UBWs at his properties by virtue of the first statement. Whether they refreshed their memories in that respect when they heard the second statement, such impression would still be an impression acquired from the first statement.  It does not follow that because their memories were so refreshed the meaning of the second statement would become that of the first statement. Otherwise, no matter what statements were made by the 1^st Respondent, so long as it triggered someone to refresh his or her memory of the first statement, he could be held liable under Section 26(2). One may go so far as even suggesting that the mere presence of the 1^st Respondent on the same occasion when Mr Tang was questioned about his UBWs, due to the 1^st Respondent’s non-retraction of the first statement, he was in breach of Section 26(2). I cannot accept this to be the correct interpretation of Section 26(2).

52.To sustain the case based on innuendo, the knowledge of the first statement must change the meaning of the second statement in the mind of a reasonable viewer of the debate so that such a viewer would reasonably understand that the 1^st Respondent was asserting for a second time that he had no UBWs at his properties. Given the context of the debate, the circumstances under which the second statement was made and the lack of cross-reference to the first statement at any stage of the debate, I do not think there is any real prospect of establishing this at the trial. In my view, a reasonable viewer would distinguish between impression he got from the first statement and impression he got from the second statement.

53.In his oral submissions, Mr Lee contended that there were other instances at the debate where references were made to Mr Tang’s UBWs. Counsel also asked this court to pay attention to instances where the 1^st Respondent attacked Mr Tang in that regard on his own volition. I have duly considered these other instances and how the 1^st Respondent deployed the subject of UBWs to attack Mr Tang. I do not think they take Mr Ho’s challenge based on the second statement any further.

54.I conclude that Mr Ho’s case based on the second statement has no real prospect of success. Since this is his only viable case after I ruled against him on the striking-out of the first statement and his concession regarding the third statement, he has no meritorious case to support an application for extension of time. 

55.Having come to this conclusion, I can be brief in my discussion of the other factors. I shall consider the length of the delay together with the reasons for the delay. The length is substantial when it is considered against the underlying policy for speedy determination of dispute in a Chief Executive election. As regards the reasons for the delay, I have addressed the reason for the delay between 25 March and 21 June. Mr Mok submitted that there was culpable delay on the part of Mr Ho after 21 June.

56.Mr Ho explained why it took him up to 5 July 2012 to lodge his Petition in his Second Affidavit. He said he obtained legal advice that he had a reasonably arguable case on 22 June. Then he consulted the Democratic Party, of which he was the chairman, on the lodging of election petition from 23 to 25 June.  After he had the support of his Party, at the advice of counsel, he issued a pre-action letter [“the Letter”] through his solicitors to the 1^st Respondent on 26 June 2012.

57.Mr Lee submitted that it was reasonable for Mr Ho to wait for the response to the Letter before he embarked upon the drastic course of election petition. Mr Mok, on the other hand, submitted that the Letter was not written with a view to have the matter resolved amicably. Rather, he submitted, it was in the nature of administering interrogatories with a view to obtain admissions from the 1^st Respondent. Further, Mr Mok pointed out that the Letter itself placed a deadline of 27 June for the 1^st Respondent to confirm that he would answer the questions put to him. When the 1^st Respondent did not reply by 27 June, there was no reason for Mr Ho to wait further.

58.In my judgment, having regard to the tone and content of the Letter and the lack of reply on 27 June, it cannot be a justification for the delay. Whilst Mr Ho might have good reasons for consulting his Party before he acted, there was no reason why preparation in terms of the drafting the election petition  should not begin before he had obtained the support of the Party in light of the policy for speedy determination of election dispute. Also, as explained by Mr Mok, the gale warnings on 28 and 29 June were immaterial as far as the calculation of working days is concerned.

59.On the whole, I find that there is some culpable delay on the part of Mr Ho. If he had exercised due diligence after 21 June, he should have been able to lodge the election petition by 29 June 2012. However, I would not refuse his application for extension of time on the ground of such delay if his case has a real prospect of success.

60.As regards the prejudice to the other parties, Mr Mok has not pinpointed to any prejudice apart from the adverse impact on the finality of the election result. I accept it is in the public interest to have such finality, thus the policy of speedy determination of election dispute. However, there is also public interest in maintaining the integrity of such election.

61.On the facts of the present case, the most important factor is the merit of the case. Since Mr Ho’s case has no real prospect of success, it would not be in the interest of justice to grant him an extension of time. 

62.Therefore, I refuse to grant him any extension. As a result, the Petition must be dismissed.  I shall hear parties on costs. 

Mr Martin Lee, SC, Mr Jeffrey Tam, Mr Carter Chim and Mr Hectar Pun, instructed by Lam & Lai, for the Petitioner

Mr Johnny Mok SC and Mr Abraham Chan, instructed by Sit Fung Kwong & Shum, for the 1^st Respondent

Mr Stewart K M Wong, SC and Mr Jin Pao, instructed by the Department of Justice, for the Secretary for Justice

(I) Please refer to FAMV24/2012 -FAMV26/2012 & FAMV32/2012 - FAMV34/2012 for the relevant appeal(s) to the Court of Final Appeal. (II) Please refer to FACV24/2012, FACV25/2012, FACV27/2012, FACV1/2013 for the relevant appeal(s) to the Court of Final Appeal.