Chong Wing Fai Winfield v. Cheung Kwok Kwan and Another

HCAL 10/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 10 OF 2012

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BETWEEN

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JUDGMENT

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1.In the 2011 District Council election for the Sai Wan Constituency of the Central and Western District [“the Election”], the Petitioner lost by 24 votes to the 1^st Respondent. The Petitioner got 1,631 votes whilst the 1^st Respondent obtained 1,655 votes. By this election petition, the Petitioner contended that the 1^st Respondent was not duly elected because,

(a)  Corrupt conduct was generally prevalent at or in connection with the Election;

(b)  Material irregularity occurred in relation to the Election.

2.The alleged corrupt conduct and material irregularity related to electors who, at the time of the Election were not residing at the addresses given in the register of electors.  There are three groups of such electors,

(a)  122 electors whose registered addresses were in one of 6 demolished buildings[1] [“the Demolished Buildings”];

(b)  29 electors whose registered addresses were at Po Fat Building;

(c)  29 electors whose registered addresses were at what the Petitioner called the Ground Floor Units.

3.Amongst these electors, those who actually cast votes at the Election were as follows,

(a)  16 Demolished Buildings electors voted;

(b)  11 Po Fat Building electors voted;

(c)  14 Ground Floor Units electors voted.

4.Though these electors were grouped under these three classes, there is no evidence or suggestion that those electors within a group were acting in concert with each other in voting without reporting any changes of their addresses.

5.Moreover, though Mr Lee SC (appearing together with Mr Pun and Mr Tam for the Petitioner) cast imputation against the genuineness of the addresses even at the respective dates of registration, there is no evidence before this court as to the respective dates when these electors registered themselves as electors.  No attempt has been made on behalf of the Petitioner to establish the conditions of the premises at these addresses at the respective dates of registration.

6.The Election took place on 6 November 2011.  According to Para 15 the Agreed Facts of 4 January 2013 [“the Agreed Facts”], the respective dates of commencement and completion of demolition works at the Demolished Buildings were as follows,

“	Name of Streets	Building No.	Name of Building	Date of commence-ment of works as shown on Form BA 101([2])	Date of completion of works as shown on Form BA 14A2([3])
	Belcher’s Street	56C		2 November 2011	27 January 2012
	Belcher’s Street	56D		Ditto	Ditto
	Belcher’s Street	56E		Ditto	Ditto
	Belcher’s Street	56F		Ditto	Ditto
	Belcher’s Street	58, 58A, 58B, 58C, 58D	Pit Fat Building	Ditto	Ditto
	Belcher’s Street	82, 84	King Yue Mansion	Ditto	Ditto
	North  Street	10		27 December 2011	14 March 2012
	Catchick Street	12		27 December 2011	14 March 2012
	Catchick Street	14		Ditto	Ditto
	Catchick Street	16		Ditto	Ditto	”

7.Hoardings were erected before commencement of works. But there is no evidence as to whether the units in the buildings were incapable of occupation as residence in the course of hoarding works.

8.With regard to Po Fat Building, there were acquisitions of units at the building by developers in 2010 for re-development.  Despite the units being acquired, the electors in question did not report any change of their addresses.  But there is no evidence or suggestion that demolition works had commenced before the Election.  Nor is there any evidence to show that these acquired units were no longer suitable for occupation as residence at the time of the Election.

9.Para 37 of the Agree Facts states as follows,

“37. 11 of the 29 Po Fat Building Electors had cast votes at the Election. Out of the 11 electors who had cast votes, 3 of them were still residing at their registered principal residential addresses, while the remaining 8 had already moved out before the Election Day.”

10.With regard to the Ground Floor Units, the Petitioner contended that the registered addresses were shop units and could not be the principal residential addresses of the electors. 

11.It should be stated at the outset that the alleged corrupt conduct or material irregularity were not committed by the 1^st Respondent or those associated with him.  Be that as it may, the law permits challenges on those grounds based on conducts or irregularities committed by others, see section 49(1)(a)(iii) and (iv) of the District Councils Ordinance Cap 547 [“the Ordinance”]; Yu Chi Shing Paul v Tin Ping Estate Proprietor Concernment Association HCAL 8 of 2012, 10 December 2012, para 3.

12.However, in order to support a challenge based on corrupt conduct, the Petitioner has to show that the corrupt conduct was generally prevalent at or in connection with the Election.  I have discussed the requirement as to general prevalence in Yu Chi Shing Paul, supra., at paras 77 to 81.  I shall come back to this element later when I consider its implication in the present context.

No material irregularity or corrupt conduct in respect of electors who did not vote

13.In respect of the challenge based on irregularity, the Petitioner has to show that it is material.  Mr Lee accepted that he has to show that the outcome of the Election might have been affected by the irregularity in the sense that at least 24 votes might have been tainted by it.  On the other hand, Mr Koo for the 1^st Respondent contended that the Petitioner has to show at least 24 tainted votes had been casted in favour of the 1^st Respondent.  On this point, I accept the approach of Mr Lee, which in my view is consistent with the authorities, see Lee Chun Hung v Sin Kin Man Francesca [2011] 3 HKLRD 175  para 22; Chan Chi Shing v Symon Wong HCAL 132 of 2010, 27 April 2011; Wilson v Ingham (1895) 64 LJQB 775.

14.Thus, for those electors who had not cast vote in the Election, their failure to report about their change of addresses (or even the furnishing of false address at the time of registration) cannot constitute any material irregularity for the purpose of this election petition.

15.The same can be said with regard to corrupt conduct. The relevant provision for corrupt conduct in the present context is section 16(1) of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 [“the ECICO”].  It reads,

“(1) A person engages in corrupt conduct at an election if the person-

(a) votes at the election knowing that the person is not entitled to do so; or

(b) votes at the election after having-

(i) given to an electoral officer information that the person knew to be materially false or misleading; or

(ii) knowingly omitted to give material information to an electoral officer; or

(iii) recklessly given to an electoral officer information that was materially false or misleading; or

(c) except as expressly permitted by an electoral law-

(i) in the case of an election referred to in section 4(a), votes at the election more than once in the same round of voting; (Replaced 21 of 2001 s.79)

(ia) in the case of an election referred to in section 4(i) or (j), votes at the election more than once; (Added 2 of 2003 s.68)

(ii) in the case of an election referred to in any other paragraph of section 4-

(A) votes at the election more than once in the same constituency; or

(B) votes at the election in more than one constituency. (Replaced 21 of 2001 s.79)”

16.It is plain that voting at the Election is an essential ingredient for such corrupt conduct.  Thus, for those who had not voted at all, there is no basis for alleging any corrupt conducts against them.

17.We should therefore focus on those who had actually voted at the Election.

No irregularity or corrupt conduct in respect of a failure of a voter to report change of address

18.Whilst an elector has to set out his principal residential address at the time of registration[4], there is no legal requirement that an elector must report to the Registration and Electoral Office [“REO”] any change of his address.  When a person applied for registration, the REO would verify the address.

19.The register of electors is up-dated every year. In a District Council election year, the deadline for making new application for registration is 16 July.  When proof is required, the applicant must produce them by 25 July.  The REO would then decide whether an applicant is eligible to be registered by reference to sections 27 to 31 of the Legislative Council Ordinance [“LCO”].  If he is eligible, his name would be entered into the provisional register.

20.For existing registered electors, there could be changes through various channels,

(a)  The elector himself may request alteration, e.g. by reporting a change of address, before 16 July in an election year[5];

(b)  The REO has the power to make inquiries before the compilation of a provisional register in each year[6] and such inquiries may be made for the purpose of ascertaining whether the address recorded in the existing final register against a person’s name is still that person’s principal residential address, see s7(1)(b) of Electoral Affairs Commission (Registration of Electors)(Legislative Council Geographical Constituencies) (District Council Constituencies) Regulation  Cap 541A [“Cap 541A”].  REO  may put an elector into the omissions list under s9 if the officer has reason to believe that the address recorded in the existing final register is no longer that person’s principal residential address[7];

(c)  The provisional register and omissions list would be made available for public inspection[8] and any person may raise objection to or make request for alterations in relation to his particulars in the provisional register[9] or make a claim for objecting to an alteration relates to an omissions list. These objections and claims would be considered by a Revising Officer who would approve any proposed correction, addition or removal to be made in the final register by 11 September in an election year.

21.Thus, there is mechanism in place for annual up-dating of the entries in the register of electors.  An elector who fails to report any change of his address can still be at risk of being removed from the final register due to the inquiries by the REO or objection from others after publication of the provisional register.

22.A senior Electoral Officer of the REO, Chiu Kam Chuen described at para 18 of his Affirmation the measures adopted by the REO for making inquiries with a view to keep the register up-dated.  He said,

“… (d) if a poll card for an election is not successfully delivered to an elector and is returned to the ERO, the REO will make telephone calls to the elector concerned to seek clarification and to remind the elector to report change of his residential address before the statutory deadline for reporting change of particulars for the following year. Through this means, the REO has successfully reminded a large number of electors to update their residential addresses, thus improving the accuracy of the electoral records as contained in the register. If the elector cannot be contacted or does not update his residential address despite the telephone appeal, the ERO will send an inquiry letter to the elector by registered post to ascertain whether he still resides at the address recorded in the existing FR. If the elector fails to provide such written confirmation or update his residential address before the deadline specified in the inquiry letter, his name will be put on the OL for the following year after the relevant election;

(e) the ERO examines the FR every year and identifies all the registered addresses having more than a certain number of electors. Except for justified and verified cases such as elderly homes, the ERO will make telephone enquiries to the electors concerned to ascertain their current residential addresses. For those electors who cannot be contacted, written enquiries will be made to the electors requesting them to confirm their present residential addresses. If the letters are undelivered or the electors confirm that they have moved out, inquiry letters will be sent to the electors by registered post in accordance with section 7 of Cap 541A. Their names will be put in the OL if they fail to update their registered residential addresses before the statutory deadline;

(f) as a standing arrangement with the Immigration Department, the Immigration Department will regularly provide the ERO with the addresses reported by members of the public under the Registration of Persons Scheme and the Smart Identity Card Replacement Exercise, and subject to obtaining their consent, the ERO will match this against the addresses of the electors. The Birth and Death Registry will also provide the ERO with its monthly records of those electors who have passed away in Hong Kong.

(g) every year, the ERO conducts a cross-matching exercise on addresses of electors with the Housing Department (“HD”) and Housing Society (“HS”) in respect of new tenancy since 1997 and 2007 respectively, and with the Home Affairs Department in respect of the FR of the Village Representative (Resident Representative) Election since 2008. For those electors who have registered a residential address with the HD or HS, the ERO sends written notices to these electors informing them of the ERO’s intention to update their residential addresses based on the tenancy or ownership records provided by the HD or HS. The ERO will automatically update the residential addresses of these electors unless: (1) the electors send written replies confirming that they do not reside at the residential addresses provided by the HD or HS, or (2) the notices addressed to the new residential addresses provided by the HD or HS are undelivered. The cross-matching exercises are conducted with the consent of the Privacy Commissioner for Personal Data;

(h) for newly established private residential developments, the ERO will send letters together with the VR forms to the new tenants reminder them to update their residential addresses before the statutory deadline; and

(i) the ERO will take appropriate follow-up actions with the relevant electors after receiving reports from the Rating and Valuation Department on instances of addresses no longer in existence (such as demolished buildings).  If the relevant electors do not reply to the written inquiries by the specified deadline, their names will be included in the OL to be published in the VR cycle.”

23.Additional measures have been implemented after the Election. It is not necessary to go into the details of those measures in this judgment as they would not be relevant for the purpose of this election petition.

24.Notwithstanding the mechanism in place and the safeguard provided by public inspection and objection as to entries in the provisional register, the system cannot be full-proof against an elector casting vote after he has moved to a new address.  The crucial issue in the present case is whether such vote constitutes a corrupt conduct on the part of that elector or an irregularity.

25.In the present context, s16(1)(a) and (b) of the ECICO is relevant. For a person who had voted, he would have engaged in corrupt conduct if either (a) he votes at the Election “knowing that [he] is not entitled to do so” or (b) he votes after having (i) given to an electoral officer information that the person knew to be materially false or misleading; or (ii) knowingly omitted to give material information to an electoral officer; or (iii) recklessly given to an electoral officer information that was materially false or misleading.

26.In a scenario where an elector had given a correct address at the time of registration but failed to inform the REO of a change of his address, s16(1)(b)(i) and (iii) is not engaged because at the time when he gave the information it was neither false nor misleading. Can it be said that s16(1)(b)(ii) is applicable?  In the absence of any statutory duty imposed on an elector to report the change of his address, I find it difficult to say that he knowingly omitted to do so.  One must bear in mind that s16(1)(b)(ii) is an offence creating provision.  In light of that, the word “knowingly” should be construed to mean a person who knows that he has a legal duty to do something and omits to do so.  In the present context, given that there is no statutory duty to such effect, at the highest I can only say that an elector has a civic duty to report a change of his address.  But failure to observe a civic duty is not an offence.  It is up to the legislature to impose such statutory duty.  Until then, I do not think a person who voted without reporting a change of his address is guilty of corrupt conduct by reason of s16(1)(b)(ii).

27.How about s16(1)(a)? It depends on two subsidiary questions: (a) whether the elector in question was entitled to vote at the election; (b) whether he knew at the time of voting that he was not entitled to vote.  In respect of the first subsidiary question, again it must be decided by reference to entitlement as a matter of law as opposed to entitlement as a matter of civic responsibility.   If an elector was entitled to vote in the eyes of law, the court cannot find him guilty of the offence of corrupt conduct under s16(1)(a) though he might be perceived by a civic-minded citizen as not exercising his right to vote in accordance with the underlying design for the Election.

28.What is the legal requirement for eligibility to vote? The starting point is s29 of the District Council Ordinance Cap 547 [“DCO”]. Section 29(1) reads,

“A person is entitled to vote at an election only if the person is an elector.”

29.Elector is defined in s2 of the DCO as any person whose name is included in the existing final register.  The definition of “existing final register” refers back to the final register of geographical constituencies compiled under s32 of the LCO.

30.Section 29(3) of DCO provides,

“In any subsequent ordinary election a person is entitled to vote only in the constituency … for which the person is registered as an elector in the existing final register.”

31.Section 29(6) of the DCO further provides,

“In any subsequent election, an elector may not be prevented from voting at an election only because the elector’s name should not have been included in the existing final register.”

32.Does it mean that so long as a person’s name appeared in the final register he is eligible to vote?  Relying on section 29(7)(a), Mr Lee submitted that in an election petition, the court can look behind the fact that the name appeared in the final register in coming to a determination whether the person is eligible to vote.

33.I agree with Mr Lee that in an election petition the issue is not to be determined solely by the appearance of the name in the final register and s29(6) of DCO.  However, that does not per se provide the answer to the question whether an elector is legally entitled to vote in a District Council election even though he has moved to a new address without reporting the same.

34.In my judgment, the court is entitled to examine whether an elector is disqualified from voting notwithstanding that his name appeared in the final register. Disqualification is provided for under s 30 of the DCO, which reads,

“An elector is disqualified from voting at an election if the elector-

(a) has ceased to be eligible to be registered as an elector under the Legislative Council Ordinance (Cap 542); or

(b)-(d) (Repealed 7 of 2009 s.9)

(e) is found under the Mental Health Ordinance (Cap 136) to be incapable, by reason of mental incapacity, of managing and administering his or her property and affairs; or (Amended 33 of 2002 s.9)

(f)  is a member of the armed forces of the Central People’s Government or any other country or territory.”

35.Section 30(e) and (f) are not relevant in the present context. Concentrating on s30(a), one has to go back to the LCO to examine the statutory grounds for holding an elector ceased being eligible to be registered as an elector. Sections 24, 27, 28, 29 and 30 of the LCO are relevant for determining eligibility to be registered as an elector for a geographical constituency. For our purposes, the pertinent provisions are ss24(2) and 28(1) and (2):

“s24(2)-

(2) A person is not, by virtue of being registered as an elector in an existing final register of geographical constituencies, entitled to be included as an elector in any subsequent register of geographical constituencies if the Electoral Registration Officer is satisfied on reasonable grounds that the person-

(a) has since ceased to ordinarily reside in Hong Kong; or

(b) no longer resides at the residential address recorded against the person's name in that existing register and that Officer does not know the person's new principal residential address (if any) in Hong Kong.

s28(1)

(1) A natural person is not eligible to be registered as an elector in the register of geographical constituencies unless, at the time of applying for registration, the person satisfies the Electoral Registration Officer-

(a) that the person ordinarily resides in Hong Kong; and

(b) that the residential address notified in the person's application for registration is the person's only or principal residence in Hong Kong.

…

(2) The Electoral Registration Officer may omit from the final register of geographical constituencies the name of an elector if satisfied on reasonable grounds-

(a) that the elector no longer ordinarily resides in Hong Kong; or

(b) that the residential address last notified to that Officer is no longer the elector's only or principal residence in Hong Kong.

…”

36.Do these provisions, read together with s 30(a) DCO, have the effect of disqualifying an elector who has changed his address without informing the REO? On a literal reading of these provisions, they do not have such effect because,

(a)        ss24(2) and 28(2) refer to the exclusion of an elector from a register if the Electoral Registration Officer [“ERO”] is satisfied on reasonable ground that he no longer resides at the registered address. They are silent about the scenario where the ERO has not been so satisfied and thus left the name of the elector on the register;

(b)       s28(1) deals with the position when an elector applied for registration. Again it requires the ERO to be satisfied about the address given.  As such, the sub-section does not purport to deal with developments after registration. Nor does it deal with situation where the ERO has not been alerted to any change of address.

37.Mr Lee invited this court to adopt a wider interpretation by having regard to the statutory scheme as a whole.  Counsel contended that the court should reach the following conclusions (summarized at paras 5 to 10 of his Speaking Note),

“5. It is submitted that a person is only entitled to elect a candidate in the District Council constituency for which the person is properly and correctly registered as an elector.

6. A person is only eligible to be registered as an elector in the District Council constituency where that person’s dwelling-place is located.

7. If a registered elector in a particular District Council constituency moves his dwelling-place and resides in another District Council constituency, he should inform the Electoral Registration Officer and he would then be registered in the latter constituency in the existing final register.

8. If a registered elector in a particular District Council Constituency moves his dwelling-place to another District Council constituency and the Electoral Registration Officer finds out the new address of his dwelling-place, the Electoral Registration Officer would register that person in the latter constituency in the existing final register.

9. If a registered elector in a particular District Council constituency moves his dwelling-place to another District Council constituency and the Electoral Registration Officer does not know his new address, the Electoral Registration Officer would enter his name on the omissions list.

10. If a registered elector in a particular District Council constituency moves his dwelling-place to another District Council constituency and his name still improperly and incorrectly appears on the former District Council constituency of the existing final register, his vote should not be counted.”

38.In addition to the statutory provisions already referred, Mr Lee also asked the court to take account of ss3, 6(2), 7(1)(b), 8(1), and 9(2) of Cap 541A and s 61 of the DCO.  Counsel also referred to the Consultation Paper on Improvement Measures of the Voter Registration System published by the Constitutional and Mainland Affairs Bureau in Jan 2012 and the Guidance Notes for voter registration.

39.With respect, I cannot accept the interpretation of Mr Lee as regards the effect of ss 24 and 28 of the LCO. The observation of Lord Millett NPJ in China Field v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at para 36, though made in a different context, is apposite,

“… There can be no quarrel with the principle that statutory provisions should be given a purposive interpretation, but there has been a distressing development by the courts which allows them to distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they consider desirable. It cannot be said too often that this is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, and that intention must be ascertained by a proper application of the interpretative process. This does not permit the Court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing …”

40.As a matter of law, neither the Consultation Paper not the Guidance Note can be relied upon to construe the meaning of ss24 and 28 of the LCO.  

41.With regard to the other statutory provisions in the overall statutory scheme (and that scheme includes not only provisions in LCO and DCO but also those in Cap 541A and the ECICO as well), though one can see that the underlying electoral design is to have voters having their principal residences within a particular constituency to elect the councillor in that constituency, it is not that clear that the legislature has gone so far as to disqualify someone who has moved from his registered address without reporting the change to the REO from voting at all.  Had that been the intention of the legislature, it would not be difficult to spell it out explicitly in one of the statutory provisions instead of providing for the removal of such elector from the register upon the ERO being satisfied on reasonable ground that he no longer resides at the registered address.  Equally, it is open to the legislature to provide for a statutory duty to report a change of address.  Had that been done, s16(1)(b)(ii) of the ECICO would be triggered if someone votes without reporting any change of address.  But the legislature has not done so and it is not for the court to construe the other statutory provisions as if that has been done. 

42.The provisions in Cap 541A relied upon by Mr Lee only set out separate registers should be prepared for separate constituencies, the power of inquiries of the ERO and his role in determination and removal of an elector from a register if he has reason to believe that such elector no longer resides at the registered address.  Like ss24(2) and 28(2) of the LCO, they do not provide for the automatic disqualification of such an elector if the ERO is not alerted to his change of address.

43.It is important to remember that we are discussing about the right to vote which is a constitutionally entrenched right of a Hong Kong resident.  Whilst I agree with Mr Lee that the integrity of the election is important, the position may not be as black and white as Mr Lee put it. The integrity of the register is a facet of the electoral system and, as we have seen, measures were in place to maintain such integrity.  After 2011, further measures were introduced to enhance such integrity.  But as I have already pointed out, there is no full-proof system short of imposing a statutory duty to report change of address on the electors.  That being a step that the legislature has not deemed it appropriate to take, one just has to accept that our system is less than perfect.

44.Moreover, the underlying design mentioned above cannot be absolute.  To start with, given the time lapse between the compiling of the final register and the polling date, it is inevitable that there are cases where electors have simply changed addresses in the interim and there is no suggestion that such electors should be deprived of their right to vote. This is particularly so when an elector changes to a new address within the same constituency.  Perhaps the same can be said with regard to an elector who has changed to a new address within the same constituency before the deadline for the compilation of the final register.  Since the law does not impose on him a legal duty to report his change of address, what is the justification for depriving him of his right to vote?

45.As regards those who have moved to live in another constituency, the justification may be there.  However, I know of no approach of statutory construction which will enable me to graft this distinction into the language of ss24(2) and 28(2) of LCO to achieve this result.  If this is to be achieved, it has to be done by legislation.

46.Though it is not relevant for the construction of the existing statutory provisions, I note that in the 2012 consultation exercise, one of the proposals was to introduce an offence in respect of failure to report change of address.  The view of the Legislative Council members was that this proposal was controversial and had to be examined carefully. After consultation, 65% of the submissions received were against the proposal.  Therefore, it was not pursued further.

47.Coming back to existing legislation, I hold that there is nothing to bar or disqualify an elector from voting even though he has moved to a new address without informing the REO.  He would only be taken out of the register if the ERO has reason to believe that he no longer resides at the registered address.  Until then, legally, he is eligible to vote.  It follows that the exercise of his right to vote cannot be a corrupt conduct under s16(1)(a) of the ECICO.  By the same token, his voting cannot be regarded as an irregularity.  On the contrary, until his name is removed from the register, discounting his vote would be an irregularity.

Did any voters give false addresses at the time of registration?

48.Therefore, in order to succeed in this election petition, the Petitioner has to show that,

(a)  false addresses were given by the questioned voters; and

(b)  such conduct was generally prevalent at or in connection with the Election; or

(c)  such conduct constituted material irregularity in relation to the Election.

49.As I said before, there is no evidence as to the dates of registration of the voters in the three groups.  There is no basis for suggesting that the voters whose registered addresses were at the Demolished Buildings or Po Fat Building were not residing at such addresses when they registered as electors.

50.ICAC had conducted investigations in respect of these voters and the results are summarized by Mr Koo in his supplemental submission as follows,

“(a) Out of the 16 Electors of the 6 Demolished Buildings, who voted at the Election,:-

(i) 1 moved out of his registered address in 2004;

(ii) 2 moved out of their registered addresses in 2007;

(iii) 2 moved out of their registered addresses in 2008;

(iv) 1 moved out of his registered address in 2009;

(v) 5 moved out of their registered addresses in 2010;

(vi) 1 moved out of his registered address in March 2011;

(vii) 3 moved out of their registered addresses in May 2011;

(viii) 1 moved out of his registered address in October 2011.

(b) Out of the 11 Electors of Po Fat Building, who voted at the Election,:-

(i) 1 moved out of his registered address in 2005;

(ii) 1 moved out of his registered addresses in 2007;

(iii) 1 moved out of his registered address in 2009;

(iv) 1 moved out of his registered address in Early 2011;

(v) 3 moved out of their registered addresses in May 2011;

(vi) 1 moved out of his registered address in September 2011;

(vii) 3 were still residing at their registered addresses on 16 November 2012;

(c) Out of the 14 Electors of the Ground Floor Units, who voted at the election,:-

(i) 1 moved out of his registered address in 2002;

(ii) 11 was still residing at their registered addresses on the date of Election

(iii) 2 had reported the registered Ground Floor Units as their corresponding addresses in addition to proper residential addresses in the Constituency”

51.An ICAC officer Mr Leung gave evidence at the trial. Mr Lee only challenged his evidence with regard to the investigations in respect of the voters with registered addresses at the Ground Floor Units. There is no challenge with regard to the voters at the Demolished Buildings and Po Fat Building.

52.Further, according to the evidence of the senior Electoral Officer, the addresses had been verified at the time of registration.

53.I am not satisfied that the voters at the Demolished Buildings and Po Fat Building gave false addresses to the REO when they registered themselves as electors.

54.Mr Leung testified that officers of the ICAC had investigated the voters whose registered addresses were the Ground Floor Units after complaints were received in January 2012.  He himself had personally visited one of those addresses.  Other officers investigated those other addresses.  As regards the address Mr Leung attended, though the unit at the front was a construction material shop, there was a staircase at the back alley leading to a cockloft where there was a residential unit.  He verified with the occupants there that the voter(s) in question lived there. Based on the records of the investigations, he made an affirmation on 16 November 2012 setting out the results.

55.On the other hand, the Petitioner took photos of the Ground Floor Units in January 2012 showing that they were shop premises and said there was nobody residing there at the time of the compilation of the final register for 2011.  He did not say he had conducted any investigation as to whether there could be cocklofts at those addresses where people could reside.

56.Mr Lee commented on the failure of Mr Leung to identify the shop he visited.  However, Mr Leung had explained that it was due to his concern for the confidentiality of the voters’ identities that he did not reveal the address in cross-examination.  Mr Lee agreed that Mr Leung could give a description of the premises instead and did not press further for the address.

57.Mr Lee invited this court to have regard to the other addresses in the register and submitted that if the residences were at the cocklofts, the proper addresses should either be mezzanine floor or cockloft instead of ground floor.

58.As I have said, there is no evidence on the dates of registration of the Ground Floor Units voters.  There is also no evidence as to the state of the premises as at the dates of registration.  The Petitioner’s photos only showed the positions as in January 2012 and his evidence, taking it on its face value, only related at the earliest to the compilation of the final register in 2011.  There could well be changes before that date and the dates when the registration were made by the voters.  Thus, in respect of a premises which was shown in the Petitioner’s photos as a Jockey Club Betting Station, it might or might not have been there when the relevant elector registered by reference to that address.

59.The Petitioner does not know which electors had voted and which had not.  Also, Mr Lee said the Petitioner has no power of investigation. But the burden of proof is on the Petitioner to make out his case in the election petition.  The ICAC, the police and the REO has placed before the court the relevant information that they had gathered based on complaints received.  It is for the Petitioner to assess whether he needed more information to discharge his burden and if so, whether to obtain such further information by way of subpoena or otherwise.  Even though the Petitioner does not have statutory powers to investigate, there is nothing to stop him from conducting his own investigation if he disagreed with the outcomes of the ICAC investigation.

60.After weighing the evidence, I do not think the Petitioner’s photos and his evidence has shown that the ICAC investigation results were inaccurate.  I find Mr Leung to be a reliable and honest witness and I accept his evidence. I have no reason to believe that the ICAC officers did not conduct their investigation professionally.  They were given the specific task of verifying the addresses of these voters and they had no reason to hide anything from this court.

61.Based on the evidence, I find that out of the 14 voters (13 of which were referred to in the Petition) who had registered addresses at the Ground Floor Units, 11 (10 referred to in the Petition) of them were still residing at those addresses.  Of the remaining 3 voters, one has moved out of the address in 2002 and the other 2 had given to the REO proper residential address and the Ground Floor Units addresses were only used as correspondence address.

62.As such, there is not a single case of a false address being used at the time of registration.

63.In any event, given the small number of voters involved in respect of the Ground Floor Units, the Petitioner cannot establish a case of general prevalence of corrupt conduct or material irregularity.

Disposition

64.The Petitioner fails to establish any grounds for questioning the return in the Election.  The 1^st Respondent was duly elected.  The Petition is dismissed.

65.I also make a costs order nisi that the Petitioner shall pay the costs of the 1^st Respondent, the 2^nd Respondent and the Intervener, such costs to be taxed if not agreed.

Mr Martin Lee, SC, Mr Hectar Pun and Mr Jeffrey Tam, instructed by Ho, Tse, Wai, Philip Li & Partners, for the Petitioner

Mr Ernest Koo, instructed by Cheung & Yeung, for the 1^st Respondent

Mr Anthony Chan, instructed by Department of Justice, for the 2^nd Respondent and Intervener