Yu Chi Shing Paul v. Tin Ping Estate Proprietor Concernment Association and Others

HCAL 8/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 8 OF 2012

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BETWEEN

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1.The Petitioner was a candidate in the Tin Ping East Constituency of the North District Council election held on 6 November 2011. He ran as an independent candidate without any affiliation to any political party. That election was contested. Amongst the four candidates, out of a total of 3,488 valid votes, the Petitioner got 1,006 votes. The returned candidate, the 2^nd Respondent [“Or”] got 1,241 votes. The other candidates got 1,163 votes and 78 votes respectively.

2.The Petitioner challenges the election result by this election petition.  He contends that Or was not duly elected because,

(a)   She engaged in illegal conduct within the meaning of s26(2) of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 [“ECICO”];

(b)   An organization, Tin Ping Estate Proprietor Concernment Association [“the Association”] engaged in illegal conduct within the meaning of s26(1) of the ECICO.

3.Under s49 of the District Council Ordinance Cap 547 [“DCO”], a return in a district council election may only be questioned on the specified grounds set out in sub-section (1).  Illegal conduct of, or in respect of, the returned candidate is one of the specified grounds, see s49(1)(a)(ii).  Illegal conduct in respect of somebody else can only be relied upon if it was generally prevalent at or in connection with the election, see s49(1)(a)(iii).  Thus, concerning the allegation of illegal conduct of the Association committed in respect of other candidates, the Petitioner cannot succeed unless he satisfied the court that such conduct was generally prevalent.

4.As summarized in the Agreed List of Issues, the substance of the complaints of the Petitioner stemmed from three different sets of statements[1].  The first set of statements was those published by Or in her election leaflets.  The second set of statements was those published by Takungpo on 19 October 2011 and the Petitioner alleged that Or authorized the publication.  The third set of statements was published by the Association.

The Takungpo statements

5.Takungpo is a newspaper in Hong Kong and it has a website on which articles in the newspaper are uploaded.  The Takungpo statements which the Petitioner complaint about were part of a feature article written by a reporter of Takungpo about Or as a candidate of the Tin Ping East Constituency.  The article contained this statement,

“柯倩儀…同時亦服務天平東一帶的居民十多年”

6.It is not disputed that Or had not been serving the Tin Ping East Constituency for more than 10 years.  She frankly admitted that when she was cross-examined by Mr Wong, counsel for the Petitioner. 

7.The real issue about the Takungpo statements is whether Or can be held responsible for the publication of those statements on the basis that she authorized the same.  She denied she had authorized such a statement.  In her affirmation of 5 May 2012 paras 14 and 15, she said,

“14. On a diver day during the Election Period, I received a call at DAB’s Northern Branch from a male allegedly from Takungpao. I was at that time very busy handling my Election leaflets with my volunteer helpers. I briefly talked with the said male over the phone. I remember I told the male that I had been participating in community services for over 10 years and I am sure that I had never told him that I had worked for the Tin Ping East constituency for over 10 years.

15. I do not know why the Takungpao reported in the way as it was.  At all the material times, I did not read the said report and I had no knowledge thereof.”

8.The Petitioner did not adduce evidence to contradict her in this respect. Though Mr Wong did cross-examine Or about her knowledge of the article after its publication, there was nothing in the cross-examination which led me to conclude that I should reject Or’s evidence.

9.At the end, perhaps realizing his difficulty in establishing that Or had authorized the publication of the Takungpo statements, Mr Wong sought to argue that on proper construction of s49(1)(a)(ii) it does not matter that the illegal conduct was not engaged in by the returned candidate.  Counsel contended even if it was only a publication by Takungpo without the authority of Or, the illegal conduct was still in respect of her and that is sufficient for the purpose of s49(1)(a)(ii).

10.I find Or to be a credible witness and I accept her evidence with regard to her lack of knowledge of the Takungpo article. There is no factual basis for holding that Or authorized the publication of the Takungpo statements in such manner.  Though she had talked briefly with the reporter, she should not be held liable for the mistake of the reporter in reporting.

11.In respect of the argument as to acts committed by person other than the candidate under s49(1)(a)(ii), Mr Wong’s contention of law is correct.  This is supported by the Chinese version of this subsection which reads,

“(1) 選出民選議員的選舉只可基於以下理由而受質疑─

(a) 選舉主任按照根據《選舉管理委員會條例》(第541章)訂立並正有效的規例宣布在該項選舉中當選民選議員的人，因以下理由而並非妥為選出─

(i) …

(ii) 該人在該項選舉中或與該項選舉有關連的事宜中作出或有人就該人在該項選舉中或該等事宜中作出舞弊或非法行為；或(由2000年第10號第47條修訂)…”

12.The problem with this contention is that the only plea in the Petition with reference to the Takungpo statement was that it was a statement published by Or, see paras 1(c)(ii), 16,19 and 20 of the Petition. There is no alternative plea that the publisher of Takungpo was the person who committed an illegal conduct in respect of Or.  Mr Wong accepted this deficiency in the pleadings.

13.It is not simply a pleading point.  There is strict time limit for the lodging of election petition and the court has stressed repeatedly that amendments which have the effect of bringing in a new ground for challenging the return would not be granted after the expiration of the time limit as it would be against the underlying policy for having such time limit.  Further, if the new point is entertained, the court will need to have evidence from the publisher as to his belief in the truth of the statement.  In the recent judgment by the Appeal Committee of the Court of Final Appeal in Re Ho Chun Yan, Albert FAMV Nos 21,22, 24,25, 26, 32, 33 and 34 of 2012, 13 November 2012[2], para 39, the requirement of the law in respect of a false statement as an illegal conduct under s26 of ECICO is stated as follows,

“It requires proof to the requisite standard that by reason its content it bore a materially false or misleading meaning and that it was uttered for the purpose of promoting or prejudicing a relevant candidate at a specific election, without a belief on reasonable grounds that the statement was true at the time when it was made.”

14.Though this might be an obiter as far as the reasonable belief of the publisher is concerned[3], I am of the respectful view that it must be correct.  Illegal conducts are dealt with under Part 3 of the ECICO.  In my judgment, what constitute illegal conducts under that part must be construed by reference to that part as a whole instead of simply focusing on one sub-section in s26.  The first provision one comes across under Part 3 is s22(1) which states that any person who engages in illegal conduct at an election commits an offence.  Thus, the Part makes the engagement in an illegal conduct an offence.  Zooming in on the illegal conduct of publication of false statement, s26 must be read as a whole. s26(4) provides a defence of reasonable belief in a prosecution.  Putting aside the question of burden of proof, once the court finds that the publisher of the statement has a reasonable belief the offence would not be established.  In other words, the making of a statement with a reasonable belief would not be a conduct in contravention of Section 26, as such not an illegal conduct in contravention of the ECICO and therefore not within the definition of “corrupt and illegal conduct” under s49(3) of the DCO.  As a matter of principle, I do not see why such a defence should only be available in a criminal prosecution but not when the same conduct is relied upon in an election petition. As the Appeal Committee observed at para 41 of the judgment in Re Ho Chun Yan, Albert, supra., the effect of s49(1)(a)(ii) is to make the commission of an offence by way of illegal conduct as a ground for questioning the election in an election petition.  It follows that if the offence is not established, the ground in the petition is not made out.       

15.Therefore, if the alternative basis for challenging the return has been pleaded, the court must examine the reasonable belief of the publisher and evidence has to be called in that regard.  Neither party has adduced such evidence at the trial.

16.In such circumstances, it would not be right to allow Mr Wong to rely on this alternative basis.

17.The challenge based on the Takungpo statements fails.

The statements by Or in election leaflets

18.The relevant statements by Or in her election leaflets were in these terms,

“天平東是一個融合私人屋苑、公屋、租者置其屋、村屋及低密度住宅的社區，倩儀的社區工作就在這裏誕生、萌芽、成長。在區內我經常接觸不同的居民。透過閒談了解他們的生活，了解他們所需，亦從而與他們成為好朋友。

我服務社區不經不覺已十多年，多年來在區內舉辦多類型的活動，聆聽居民訴求，反映大眾意見，今天就讓我們一同攜手改善我們的社區。”

19.There were two versions of her election leaflets, both of which contained these statements.

20.As mentioned, Or does not dispute that she had not served the Tin Ping Tung Constituency for more than ten years when these statements were made.  She set out her history of public service in her affirmation.  In 1994 to 2004, she served in the Mutual Aid Committee of a public housing block at Long Ping Estate in Yuen Long.  She joined the Democratic Alliance for the Betterment and Progress of Hong Kong [“DAB”] in 1996 and she served in the community works of the Tuen Mun Branch of the DAB between 1998 and 2001.  She served in the North Branch of DAB since 2003.

21.In respect of membership in public committees in the North District Council, Or first became a co-opted member of the Recreation and Culture Committee of the North District Council in January 2007.

22.Earlier than that, Or has been the chief office bearer of Sky Clear Honour the Aged and Preserve Children Association since its establishment in September 2006.  The Petitioner regarded this as the earliest point in time when Or did public service in the Tin Ping East Constituency. 

23.Her explanation for the disputed statements is, as set out in paras 11 to 13 of her affirmation, as follows,

“11. It is thus when I stated I had been participating in community services for more than 10 years (我服務社區不經不覺已十多年), I was referring to my community service starting from 1994.

12. It is true that my wordings in the “天平東是一個融合私人屋苑、公屋、租者置其屋、村屋及低密度住宅的社區，倩儀的社區工作就在這裏誕生、萌芽、成長” might not be ideal. When I wrote this sentence, what I really meant was that because tin Ping East Constituency was so important to me, I felt like my community services was having a birth (誕生) right there (I left the 悅屏樓 community due to some unhappy personal experiences) and was growing (萌芽、成長) in Tin Ping East. I did not mean that the only community I had every served was Tin Ping East.

13.       Even the sentence might be interpreted in a different way, which is not admitted, I would say the difference is not material as I had really participated in community services for more than 10 years and the nature of my community services had not changed very substantially.”

24.Though the Petitioner raised doubts about the date when Or commenced her service in the North Branch of DAB in his 2^nd Affirmation[4], Mr Wong did not cross-examine her on this aspect of the case when she testified.  Or’s evidence in this respect was supported by Mr Lo, her colleague at the North Branch who had been working there since 2000.

25.Taking into account the evidence of the Petitioner and the evidence of Or, I find that she did start her service in the North Branch of DAB since 2003.  I do not think the matters raised by the Petitioner were sufficient to cast doubt on her evidence.  As submitted by Mr Chan, there is no conflict between Or continuing to serve at the Traffic and Transport Committee of Tuen Mun District Council and her transfer to the North Branch in 2003.

26.On the meaning of the statements, the Appeal Committee recently considered the proper approach in determining the meaning of a statement for the purpose of Section 26 of the ECICO in Re Ho Chun Yan, Albert, supra.  Contrasting with the more relaxed approach in the law of defamation giving allowance to loose-thinking of a reasonable audience, the Appeal Committee said at para 41 of the judgment,

“A more demanding approach is called for where it is sought to establish the commission of a criminal offence as the relevant election petition ground. The Court would have to determine whether it is proved to a standard equivalent to the criminal standard that the words, given their natural and ordinary meaning, constituted a materially false or misleading statement made with the purposes specified and without belief on reasonable grounds in the truth of the statement.”

27.Again, this is obiter because the Appeal Committee said explicitly at the beginning of para 41 that they would not decide the point at that instance.  But it remains to be highly persuasive and, in my view, the different context in which the question arises does call for a more stringent approach in the determination of the natural and ordinary meaning of a statement.  The interest at stake is not the mere personal interest of a candidate and the petitioner.  There is a public interest in maintaining the integrity of our electoral system.  Allowing loose-thinking in the reading of a statement in order to upset the result of an election which is otherwise proper, fair and regular is not conducive to credibility of our electoral system.

28.With this caveat against loose-thinking in mind, I think the correct approach is the one laid down in English election cases on false statements.  The approach is summarized in Halsbury’s Laws of England, Fourth Edn., 2007 Re-issue, para 683 footnote 11,

“The question to be determined is what in the circumstances is the true meaning which the reader would place upon the statements … The true meaning will depend on the occasion of the publication, the persons publishing, the person attacked and the readers intended to be addressed …”

29.As stated at para 683, the true and real meaning may not necessarily be the literal meaning of a statement.

30.In the present context, the Petitioner’s allegations of material falsity is summarized in para 18 of the Re-amended Petition,

“(a) she was still serving as a Community Organizer （社區幹事）for DAB’s Tuen Mun Branch （屯門支部） in October 2002;

(b) she did not start to perform community works in the community of the above-mentioned Constituency;

(c) she has not solely served the residents and the community in the above-mentioned Constituency even if she has performed community works for more than 10 year.”

31.There are three aspects in terms of the alleged false meanings in the Petitioner’s case,

(a)   Or started her community works in Tin Ping East Constituency;

(b)   Or had solely served the residents and community in Tin Ping East Constituency;

(c)   Or had served the residents and the community in Tin Ping East Constituency for more than 10 years.

32.I cannot discern any basis for reading the disputed statements as stating that Or had served Tin Ping East Constituency exclusively.  I hold that the case based on meaning (b) cannot be sustained.

33.Meaning (a) is conveyed by this sentence in the first paragraph of the disputed statements,

“倩儀的社區工作就在這裏誕生、萌芽、成長。”

34.Meaning (c) is more controversial.  On the one hand, Mr Chan invited the court to take account of the fact that the statement about community service for more than 10 years was set out in a new paragraph and urged the court to accept Or’s explanation as to what she meant.  On the other hand, Mr Wong submitted that the subjective intent of Or could not be relevant to what the statement objectively meant to the readers.

35.I agree with Mr Wong that Or’s subjective intent should not be relevant to the objective meaning of the statements.  Whilst the sentence was contained in a new paragraph, the two paragraphs were put in the same section in the leaflets.  Further, though the phrase “服務社區” in that sentence can mean community service generally without specifying it as service to a particular community, the terms “區内” and  “社區” used in the same sentence are referable to a particular community. Given that the intended readers of the leaflets were the voters in the Tin Ping East Constituency, the end of the sentence, referring to “我們的社區”, clearly indicates that the relevant community is Tin Ping East Constituency.

36.In one set of the leaflets, the following statement was made immediately below the paragraph in question.

“一點一滴，見證着我建設社區的足跡。”

37.After that, some examples of community works done by Or in this district were given.  The next caption reads,

“繼續承擔使命，編織美好社區。”

38.At the very bottom of the same page, the following statement appeared,

“讓我們分擔困難，分享喜樂，為北區的未來奮鬥。”

39.The community denotes by the term “社區” in these sentences clearly means the North District.  It could not be a general reference to any community.

40.I find that the true and real meaning of the statement does include meaning (c).

41.There is no dispute that there is falsity in meanings (a) and (c), the issues are whether under s26(2) of the ECICO these false statements are,

(a)  Material;

(b)  For the requisite purposes.

42.Further, as held above, the court also has to consider whether Or has made out a defence under s26(4) before a ground for questioning the election can be established.     

43.On the question of materiality, the authorities cited by counsel do not shed much light on the correct approach in law in deciding whether a false statement of fact is material.  Mr Chan submitted that materiality is to be tested by reference to its impact on the election.  He said the court has to exercise a reasonable judgment in that respect.  He stressed that the burden is on the Petitioner to show that a statement is material.

44.On the other hand, Mr Wong submitted that materiality is to be assessed by reference to the overall meaning of the statement.  If the mis-statement has a material impact on the overall meaning, it is material for the purpose of s26.  Mr Wong also submitted that unless the court can be satisfied that a false statement is harmless, it should hold that the statement is material.  Referring to Leung Wing Hung v Yuen Kwai Choi [2009] 1 HKLRD 515 at paras 57 to 59, Mr Wong submitted that materiality to the election result should only be relevant at a later stage after the court finds that a ground for questioning the return has been established under s49.   

45.With respect, I do not think A Cheung J (as he then was) laid down such a proposition of law in that part of his judgment in Leung Wing Hung v Yuen Kwai Choi, supra.  His Lordship did not consider the question of materiality in the context of s26.  What was said at paras 57 and 58 was only leaving open the possibility that the court may refer to the actual circumstances of a case in determining whether a returned candidate was duly elected despite the establishment of a ground under s49(1).

46.In my judgment, Mr Chan is correct to this extent: the falsity of the statement must be material for the purpose of the election.  But it is not necessary for a Petitioner to show that the false statement has actually contributed to the votes in favour of a particular candidate or caused a candidate to lose votes.  It is sufficient if the court is satisfied that the false statement may have affected how the voters cast their votes. The description “materially false” is used in s26(1) and (2) in conjunction with “misleading”.  A statement is only misleading when someone is likely to be misled in respect of a certain decision.  In the context of s26, plainly it is talking about the voters being misled in determining how votes should be cast in the election. The same must apply in respect of a materially false statement.    

47.As highlighted by the Appeal Committee of the Court of Final Appeal, it must be remembered that the contravention of s26 has serious consequences.  It is a criminal offence and a conviction is punishable by imprisonment.  It also has serious consequence in terms of the political career of a candidate.  A person who has been convicted of such offence would not be eligible for nomination as a candidate for the District Council election and the Legislative Council election for a period of 5 years[5] and a serving member of the District Council would be disqualified from holding such office[6]. These consequences can be characterized as penal and there could be human right implications, see Watkins v Wollas [2010] EWHC 2702 (QB) paras 48-50 and 57-58.  Having regard to the objects of the ECICO as stated in s3 of the ordinance, it cannot be the legislative intent to attach such serious consequences to someone who has made an inaccurate statement in the course of an election which cannot have any material impact on the election.   

48.In this connection, the approach stated at para 46 above is supported by what was said in respect of s26 at the Legislative Council Bills Committee meeting on ECIC Bill on 23 September 1999.

“12. In reply to Mr Cheng Kai-nam DSG(C) advised that clause 26 dealt with false or misleading statements of a factual nature. He said that some statements of facts might be false or misleading but not necessarily material to the effect of promoting or prejudicing the election of a candidate. For example, a statement saying that a candidate was aged 31 when in fact he was 30 would not be a materially false or misleading statement for the purpose of clause 26. However, a false allegation that a candidate was a qualified lawyer when he was not, or vice versa, would be caught by the provisions in the clause. The element of material prejudice or promotion had to be proved by the prosecution.”

49.This approach is also consistent with the decision of Chung J in Chung Ming v Chow Ping Tim HCAL 11 of 2004, 9 July 2004.  In that case, the court held that a statement by a candidate having no knowledge on certain matter is not materially false when such candidate had actually forgotten about the same.

50.Adopting this approach, I do not think meaning (a) is material in the present circumstances.  Even though Or did not commence her community services in the Tin Ping East Constituency, on my finding she has been working there since 2003.  In the context of an election in 2011, I cannot see how the false statement as to the place when she started her community service so many years ago could be material.

51.Neither do I find meaning (c) to be material. There could not be any material difference to the voters whether Or had served the particular community for 10 years or 8 years.  What was important to the voters was what she had brought about in terms of the actual services rendered by her in the not too distant past.  After all, a term of office of a District Councillor only lasts for 4 years.  This is not a case where the total length of service in the community in the past would differentiate one candidate from another.  According to the election leaflet of the Petitioner, he himself had 20 years’ public service in this community and he had been a District Councillor for 8 years. 

52.Therefore, the statements published by Or in the election leaflets do not constitute ‘materially false or misleading’ statements within the meaning of s26 of the ECICO and Or did not contravene that section.

53.Having reached that conclusion, it is not necessary for me to deal with the element of requisite purpose and the defence of reasonable belief under s26(4).  I will just make the following brief observations. Neither Mr Chan nor Mr Wong made any submissions on the requisite purpose.  Given the fact that the statements were published in an election leaflet, if they were material, the requisite purpose must be satisfied.

54.In respect of the defence under s26(4), I have explained above why I agree with the dicta of the Appeal Committee and a defence of reasonable belief should, as a matter of law, be available in the context of an election petition.  I note that Chung J held otherwise in Chung Ming v Chow Ping Tim, supra.  But that was decided without the benefit of the observations of the Appeal Committee in Re Ho Chun Yan, Albert, supra.  In another case, Leung Wing Hung v Yuen Kwai Choi, supra.  Cheung J left the point open at para 51 whilst he proceeded to consider the position on the assumption that s26(4) is available in an election petition.

55.Given my view on the availability of s26(4), I shall move on to consider whether Or has made out a case of belief on reasonable ground that the statements in the election leaflets were true.  In my judgment, the answer depends on whether the defence can be made out by reference to a meaning other than the one which the court finds to be its true and real meaning.  If s26(4) is construed narrowly by confining it to the truth of the meaning which I find as the true and real meanings, viz meanings (a) and (c), obviously Or cannot say she has any reasonable ground for believing that those meanings were true as she knew she did not commence her community service in this constituency and she had not served it for more than 10 years.

56.But given that this is a sub-section providing for a defence to a criminal charge, I think it should be given a more liberal interpretation. The sub-section refers to reasonable grounds for believing in the truth of the statement instead of the truth of the true and real meaning of the statement as found by the court.  It is not uncommon that different people may ascribe different meanings to the same statement and each may act reasonably in coming to his view on the meaning.  In the law of defamation, where the single meaning rule applies in determining whether a statement is defamatory, the Privy Council held in Bonnick v Morris [2003] 1 AC 300 that when one comes to the defence of responsible journalism the law is more flexible and, as Lord Nicholls said at para 24,

“If the words are ambiguous to such an extent that they may readily convey a different meaning to an ordinary reasonable reader, a court may properly take this other meaning into account when considering whether Reynolds privilege is available as a defence. In doing so the court will attribute to this feature of the case whatever weight it considers appropriate in all the circumstances.”

57.I am also mindful of the observation of the Appeal Committee that since we are in an area of law which carries with it criminal implications, the standard should be more demanding before a contravention of s26 is established.  Thus, I see no reason why one should stick to the single meaning rule for the purpose of considering a s26(4) defence.

58.Some support for this approach can be derived from the judgment of Cheung J (as he then was) in Leung Wing Hung v Yuen Kwai Choi, supra.  His Lordship did not deal with the question under s26(4).  However, he did consider the possibility of different persons giving different meanings to the same statement at para 46 of the judgment,

“… I will still say that put at the lowest, the terms are capable of different understanding by different people. In other words, reasonable people do differ in their understanding of those terms.”

And at para 47,

“… when … the petitioner genuinely (and reasonably) believed in his own definition of the term … he cannot possibly be said to have [committed any falsehood].”

59.On the facts of that case, it was the mirror situation because the respondent alleged the petitioner of deception and dishonest conduct based on his own view as to the meaning of the term used by the petitioner in his statement.  Cheung J held that the respondent could not rely on the defence under s26(4) because he should be aware that the Petitioner could have reasonably attach another meaning to that statement.

60.We are not dealing with that type of situation.  Rather it is a straightforward case of whether Or had reasonable grounds to believe in the truth of her own statements.  In the present context, it boils down to this: whether Or believed on reasonable grounds that the statements means what she said they meant.

61.I accept that Or did labour under the belief as to the meanings of these statements as she deposed in her witness statement quoted above.  As regards her alternative meaning for the words which I find to bear meaning (a), I do not think there is any reasonable ground for her to labour under that misconception.  The term “誔生” is very specific and the fact that she had a strong attachment to this community cannot provide a reasonable ground for believing the term to mean something else.  Thus, as far as this part of the case is concerned, I do not think she has made out a defence under s26(4).

62.On the other hand, I accept that the words which I find to bear meaning (c) can reasonably be taken to have a more restricted meaning.  There is reasonable ground for Or to believe that those words bear the meaning she ascribed to it.  In that respect, I find that she has made good a defence under s26(4).

The illegal conduct of the Association

63.Very scant evidence has been placed before the court regarding the Association. The Association is a distinct body from the Incorporated Owners of Tin Ping Estate.  The Petitioner gave evidence that the Association is a society registered under the Societies Ordinance. According to the information provided by the Licensing Office of the Hong Kong Police Force, the Association has a chairperson, a treasurer and a vice chairperson.  It was reported as a non-profit making body and its object was to promote the welfare of the owners of Tin Ping Estate and the mutual assistance of residents.  Reportedly, its work also included monitoring the operation of the Incorporated Owners.  It was registered on 31 March 2003.

64.I have no evidence as to how many members the Association had in 2011.  Based on the materials produced, it would appear that the Association was a pressure group and it played a part in organizing the objection on the part of the owners to the 30% increase in management fees for Tin Ping Estate proposed by the Incorporated Owners in December 2010.

65.According to the evidence of the Petitioner, Tin Ping Estate has 5,700 units and straddles between two constituencies: Tin Ping East is one of those.  Thus, there were at all material times two District Councillors elected from Tin Ping Estate.  In 2010, the Petitioner was serving as a District Councillor of the Tin Ping East Constituency.  The other District Councillor came from Tin Ping West Constituency.  The incumbent councillor of that constituency in 2010 was a member of the DAB.

66.The Association had worked together with a Legislative Councillor who was a member of the Democratic Party [“DP”] in the opposition to the increase in management fees.  On 28 September 2011, the old management committee was removed and the chairperson of the Association became the chairman of the new management committee.

67.On 3 October 2011, the Association published a leaflet which contained the following statements which are the subject matter of the Petitioner’s complaint,

“(a)“本關注組立即向各政黨及兩名現區議員求助，惟最終只獲民主黨團隊積極回應並全力協助”；and

(b)  “關注組對天平邨兩名區議員在發生法團事件後，紂手旁觀，並沒有全力協助業主捍衛權利，感到萬分失望”

68.The leaflet also thanked the DP for their assistance in the matter.

69.Since the Petitioner was one of the then incumbent District Councillors, the statements were made in respect of him.  He said they were false or misleading in the following manner,

“(a)  On the 10^th day of January 2011, the Petitioner had assisted the residents in Tin Ping Estate by way of submitting written objection of drastic increase of management fee bearing signatures of various residents in Tin Ping Estate to the Manager of the Tin Ping Estate Management Office for his onward transmission to The Incorporated Owners of Tin Ping Estate (“the IO”) for consideration;

(b)  by a letter sent to the Director of HKHA on 10^th January 2011 (“the Letter”), the Petitioner acting as a District Councillor for the above-mentioned Constituency reflected the complaints and wishes of residents in Tin Ping Estate to HKHA and requested HKHA to consider the adjustment on the percentage of increase on the management fee and the appointment of building management company by way of public tender.

(c)  The Petitioner further assisted the residents in Tin Ping Estate to voice their complaints and wishes by making an appointment with a Manager of HKHA to have a meeting with them on 11^th January 2011.

(d) By a letter from HKHA to the Petitioner dated 18^th January 2011, HKHA acknowledged receipt of the Letter and confirmed to follow up the matters raised by the Petitioner.

(e)  By reason of the facts set out in paragraphs 13(a), (b) and (c) hereinabove, the Management Committee of the IO resolved at a meeting held on 11^th January 2011 to accept the objection from residents of Tin Ping Estate by adjusting the percentage of increase on management fee from more than 30% downwards to 22%.”

70.The Association’s leaflet was published at a time when the election period of the 2011 District Council election had commenced. The nomination period for the election ran from 15 to 28 September 2011.  Thus, by 3 October 2011, the nomination had closed.  In the two constituencies which Tin Ping Estate straddled, there were candidates from the DP running.  Thus, the Petitioner perceived the leaflet as having the following effect[7],

“The purpose of publishing and distributing the Leaflet was to hit two birds in one stone, that is to say:-

(a) to attack I and Mr Wong being the two District Councillors for the said two Constituencies in Tin Ping Estate and an independent candidate in the above-mentioned Constituency and a candidate having political affiliation with DAB in the Tin Ping West Constituency respectively; and thereby

(b) to bolster the position of :-

(i) Mr Leung being a candidate having political affiliation with DP in the above-mentioned Constituency and my competitor in the 2011 Election; and

(ii)     Mr Yim being a candidate having political affiliation with DP in the Tin Ping West Constituency and a competitor of Mr Wong in the 2011 Election.”

He further said,

“Further, for the residents in the Tin Ping Estate, the said successful removal and replacement of Management Committee of the IO was meant that the successful setting aside of the implementation of the proposed increase of management fee at the rate of 22% was due to the full and continuous support and assistance of DP. Hence, with his recent achievement bearing in mind, the message delivered in the Leaflet to the electors of the above-mentioned Constituency and the Tin Ping West Constituency was loud and clear, i.e. the candidate who has political affiliation with DP would be the one who would stand up and give the electors active assistance and full support in protecting their rights. In other words, the Tin Ping Association’s publication and distribution of the Leaflet containing materially false or misleading statements of fact about the Petitioner and/or Mr Wong set out paragraphs 16(a) and (b) hereinabove was not only intended to and/or had the effect of affecting the choice and decision of the electors in casting their vote in the forthcoming 2011 Election but also intended to and/or had the effect of :-

(a) promoting the election of Mr Leung being a candidate having political affiliation with DP in the above-mentioned Constituency; and/or

(b) prejudicing the election and/or the re-election of the Petitioner being an independent candidate, the election of the 2^nd Respondent being a candidate having political affiliation with DAB and the election of Mr Mok being another independent candidate in the above-mentioned Constituency; and/or

(c) promoting the election of Mr Yim being a candidate having political affiliation with DP in the Tin Ping West Constituency; and/or

(d) prejudicing the election and/or the re-election of Mr Wong being a candidate having political affiliation with DAB in the Tin Ping West Constituency.”

71.The Petitioner published a leaflet on 15 October 2011 in response to the Association’s leaflet. In that response (bearing the heading “讓村民了解事實真相，還智成一個公道”), the Petitioner set out the steps he had taken to reflect the residents’ objection to the increase in management fees.  He also pointed out that the Association had not contacted him about the matter.  He was also critical of the action of the Association in that leaflet. In the response leaflet, he said,

“天平邨業主關注組，為支持某政黨，竟公然撒謊，誣詆本人，何來公平、公義、公正？實令人質疑其誠信。選舉應該是廉潔的，抹黑造謠行為可恥。智成對該組織的行為深感萬分失望。過去，智成已多次被『有心人』誣衊及抹黑，智成仍一再容忍，唯是次因涉及懷疑觸犯選舉條例，如果再次容忍這種缺德行動，真不是邨民之福。因此智成已決定將有關 的失實及誤導單張，向有關部門舉報，並會保留法律追究權利，以正視聽。”

72.According to the Petitioner, he had distributed 2,400 copies of this leaflet. He said the investigation in respect of his complaint to the ICAC regarding the Association’s leaflet is still ongoing.

73.The election was held on 6 November 2011, the candidate of the DP was the one who got 1,163 votes.  In other words he got more votes than the Petitioner but less than Or (who was, as mentioned, from DAB).  In Tin Ping West constituency, the DP candidate also lost to the candidate from DAB.  The incumbent councillor of Tin Ping West (who was also attacked by the Association’s leaflet) did not take part in the 2011 election.   

74.At the trial, there is no challenge to the evidence of the Petitioner as regards the steps he had taken to object to the increase in management fees and the Association not having made any contact with him for help.  Though the Association had initially been joined as a respondent, upon the Association indicating through its solicitor that it had no interest in the outcome of this petition and did not wish to be a party, it was struck out as a party to the proceedings[8].

75.As I said at the outset, since the relevant ground in respect of this complaint of the Petitioner is s49(1)(a)(iii) of the DCO, he must establish that “corrupt or illegal conduct was generally prevalent at or in connection with the election”.

76.Mr Wong’s case on general prevalence was built on the premise that the Association had distributed its leaflet to a large number of residents in Tin Ping Estate.  There are several difficulties in this contention.  First, there is no reliable evidence as to the number of copies of the leaflet distributed by the Association.  The Petitioner simply asserted that given there were 5,700 units in Tin Ping Estate, at least 5,700 copies of the Leaflet had been distributed.  I was not even told how the leaflets were distributed.  There is no suggestion that the leaflet was mailed to or inserted into the letter box of each unit in Tin Ping Estate.  Unlike other election petitions where the complaints involve allegations of corrupt or illegal conducts which are also investigated by the ICAC, the Petitioner did not procure evidence obtained by the ICAC in respect of such investigation before this court. In such circumstances, given the standard of proof required in the establishment of illegal conduct as highlighted by the Appeal Committee in Re Ho Chun Yan, Albert, supra., I do not think this court can simply infer 5,700 copies had been distributed from the fact that there were 5,700 units in the Estate.  I do not have reliable evidence on how widespread was the distribution of this leaflet and for how long did it last.

77.Second, in any event the distribution of the leaflets by the Association was, to put it at its highest, only a single incident. In my judgment, that does not satisfy the criterion of general prevalence in s49(1)(a)(iii).

78.Counsel has not referred me to any local authorities on the interpretation of s49(1)(a)(iii).  In England, there is a similar statutory ground for avoidance of election under s164(1) of the Representation of People Act 1983.  The wordings are not exactly the same.  Section 164(1) is in the following terms,

“Where on an election petition it is shown that corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election for the purpose of promoting or procuring the election of any person at that election have so extensively prevailed that they may be reasonably supposed to have affected the result-

(a) his election, if he has been elected, shall be void, and

(b) he shall be incapable of being elected to fill the vacancy or any of the vacancies for which the election was held.”

79.Though the heading of the section refers to “avoidance of election for general corruption etc”, the criterion in the English statutory provision is “so extensively prevailed that they may be reasonably supposed to have affected the result”. It is not necessary for me to consider to what extent this represent a codification of the common law on general corruption. Perhaps it would be more pertinent to trace back to the common law position which, as far as Hong Kong is concerned, may provide more insight into how the concept of general prevalence under s49(1)(a)(iii) should be applied.

80.The common law position on general corruption can be found in Halsbury’s Laws of England 2^ndEdn (1934) Vol XII, para.515. In particular the following observations are apposite for our purposes,

“Apart altogether from the question of agency, there may be such general corruption as will avoid the election at common law. Thus, if there is bribery, though not shown to be in any way connected with the agents of the candidate, which is so extensive as to make it plain that there has not been a fair and open election, but a corrupt election, the return will be avoided.”

“… The Court in each case will look to the particular circumstances, and especially to the absolute majority obtained, to see whether the result might have been affected by the corruption proved.”

And at footnote (o),

“The absolute majority obtained is an important ingredient in deciding this. The corruption of ten or twelve where no agency is proved might be very important when there is a majority of twelve, but is certainly not so important when there is a majority of sixty, still less when it is as large as hundred or a thousand or more …”

81.I do not think the single incident of publication of false statement by the Association in the circumstances of the present case can be regarded as so generally prevalent to warrant the avoidance of the return. Even if the Association’s leaflet did have some adverse impact on the electioneering efforts of the Petitioner, it is certainly not plain to me that the election was not a fair and open election.  Judging from the differences in votes between Or and the Petitioner, and bearing in mind that Or had an affiliation with DAB which was also indirectly prejudiced by the leaflet, I do not think the result (as far as the return of Or as the successful candidate is concerned) might have been affected by it.

82.Therefore the Petitioner has failed to establish a case under s49(1)(a)(iii) by reference to the Association’s leaflet.

83.This does not mean that the Association has not committed any illegal conduct under s26(1) of the ECICO.  However, as it is not a party to this petition and I have not heard from it, I should not form a concluded view.  What I said below should only be regarded as provisional view on a question which I am directed to consider under s55(7) of the DCO.

84.Based on the evidence I have, there is sufficient material to lead me to the view that the Association may have engaged in illegal conduct in connection with the election. On the evidence of the Petitioner in the following respect (which I have no reason not to accept), the statement that the Petitioner had been contacted and he offered no assistance was materially false.  Given the timing of its publication and the participation in the election by a candidate from the DP, and having regard to the overall tone of the leaflet, in the absence of any evidence to the contrary, a court may infer that it was published for the purpose of promoting the DP candidate and prejudicing the Petitioner.  Without any evidence from the Association, I cannot say whether it can make out a defence under s26(4).

Disposition

85.For these reasons, I determine that Or was duly elected in the 2011 election. The Petition is dismissed and I make a costs order nisi that the Petitioner shall pay the costs of Or and the 3^rd Respondent, such costs to be taxed if not agreed.

86.I also direct that a copy of this judgment be provided to the Director of Public Prosecution and it shall serve as a report pursuant to s55(7).  The specified person is the Association and the details of the illegal conduct have been fully set out above.

Mr Philip Wong, instructed by Raymond Chan, Kenneth Yuen & Co, for the Petitioner

Mr Kenneth C L Chan and Mr Chu Wai-kei instructed by Jimmie K S Wong & Partners, for the 2^nd Respondent

Attendance of the 3^rd Respondent on 30^th October 2012 be excused

Please refer to CACV5/2013 for the relevant appeal(s) to the Court of Appeal.