Lam Kin Man v. Leung Wai Kuen Edward and Another

FAMV No 11 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO11 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 1 OF 2012)

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Between :

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ:

1.Section 27(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) (“ECICO”) makes it illegal conduct at an election for a candidate to publish or authorize publication of an election advertisement which implies that the candidate has the support of named persons or organizations unless, before publication of the advertisement, the person or organization has consented in writing. 

2.On 22 October 2011, the applicant published an election advertisement which listed 58 supporters of whom 52 had not given their written consent before publication.  On 6 November 2011, he was returned as the elected candidate in the District Council election, winning the election by two votes.  He received 1045 votes while his main rival, the 1^st respondent, obtained 1043 votes.

3.By an election petition dated 5 January 2012, the 1^st respondent challenged the applicant’s election.  One of the complaints relied on concerned the aforesaid election advertisement.

4.On 28 June 2012, in HCMP 1321/2012, the applicant applied for relief under s 31 of ECICO on the basis that publication of the advertisement without the prior written consent of the named supporters constituted illegal conduct contrary to s 27(1) of ECICO.

5.Under s 31(2) the court may grant relief but only if it:

“(a) is satisfied that -

(i) the act or omission was due to inadvertence, an accidental miscalculation or any reasonable cause and was not due to bad faith; … and

(b)   believes it to be just that the applicant should not be subjected to one or more of those penalties and disqualifications.”

6.HCMP 1321/2012 was heard before Lam JA on 10 January 2013.  It was accepted that in the applicant’s election advertisements, there were 58 claimed supporters of whom 5 had consented in writing on or before 17 October 2011, and one had consented in writing after 17 October 2011.  4 supporters told ICAC investigators that they had given verbal consent of support to the applicant on an unrecorded date prior to 17 October 2011.  The other 48 claimed supporters (which included 6 organizations) told ICAC investigators that they had given their verbal consent of support to the applicant but they were unable to recall whether such verbal consents were given prior to or after 17 October 2011.  However, between February and April 2012, the applicant obtained written declarations from the 52 supporters evidencing their support and their oral consent and they were relied on to show that the applicant had indeed had their support and consent to name them in election advertisements.

7.By his judgment dated 17 January 2013 (the January judgment) Lam JA refused relief.  The learned judge was not satisfied that the non-compliance with s 27 was due to inadvertence.  Nor did he think it just to grant relief having regard to the narrow winning margin.  He was not impressed with the written declarations. Nor are we.  The written declarations by organizations do not identify the person or persons who allegedly at meetings or by telephone expressed willingness to support the applicant and consent to the inclusion of the organization’s name in election advertisements.  Moreover, when the written declarations made purportedly on behalf of the 6 organizations are compared with standardized consent forms provided by the Electoral Affairs Commission (the Commission) their inadequacy is clear.  The standardized form contains the statement “I have been authorized by (name of organization) to give consent” – the written declarations say nothing about authorization. The question of proper authorization is important because  s 27(5)  ECICO provides that :

“A person engages in illegal conduct at an election if the person purports to give consent in writing to the inclusion in an election advertisement of the name or logo of or associated with an organization without having been approved by the governing body of the organization or by a resolution of the members of the organization passed at a general meeting.”

8.The applicant, who was entitled to appeal as of right, has lodged a notice of appeal. The appeal is set to be heard in November 2013. The applicant made no effort to obtain an early date.

9.Following the January judgment, Lam JA directed a hearing of the petition limited to the complaint about the lack of timely written consent.  At the hearing of the petition, Lam JA refused an application by the applicant for a stay or adjournment pending the determination of his appeal because that would mean a very substantial delay to the hearing of the petition. The applicant relied on Star Play Development LTD v Bess Fashion Management Co Ltd [2007] 5 HKC 84 and submitted that the hearing of the petition should be stayed or adjourned until after the hearing of the appeal because the appeal would be rendered nugatory otherwise.  And that being so, the existence of an arguable appeal should suffice.  Lam JA took the view that, given the strong public interest in the prompt determination of who was or was not duly elected, no stay should be granted unless the appeal has a real prospect of success. Indeed, since the term of office is 4 years, delay can seriously prejudice the 1^st respondent too. In any event, Lam JA was of the view that the appeal was not reasonably arguable.  The grant or refusal of relief is discretionary. The basis upon which his exercise of discretion can be challenged is limited.  The learned judge took the view that it would not be just to grant relief.   The applicant knew that written consent had to be obtained and it was obtained in some cases.  But in 52 out of 58 it was not.  No doubt it would have been a time consuming effort to obtain the signatures of these persons.  As noted, 6 of these supporters are organizations and the requirements of s 27(5) should not be overlooked.

10.Guidelines issued by the Commission took pains to underline the importance of timely written consent. At the material time s 103(9A) of the Electoral Affairs Commission (Electoral Procedure)(District Councils) Regulation Cap 541F (since repealed), require such written consents to be deposited with the relevant Returning Officer before the display, distribution or otherwise use of the relevant election advertisement.

11.In any event oral support by its very nature is unsatisfactory and may be more freely given and may expose the giver to criminal liability. See s 27(5).      Confirmation of support after the election is also unsatisfactory and open to mischief.  Given the narrow margin of success, it was open to the learned judge to conclude that it would not be fair that the applicant should be allowed to benefit from such serious breaches of s 27(1).

12.Lam JA then proceeded to deal with the petition.  Under s 49 of the District Councils Ordinance Cap 547, an election may be questioned on, inter alia, the ground that corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election.  Section 55(2) of Cap 547 provides:

“At the end of the trial of an election petition that relates to an election that was contested, the Court must determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead.”

13.One of the issues decided was whether, on finding of illegal or corrupt conduct the court must hold that the candidate was not duly elected.  Lam JA had regard to s 30 and s 31 of ECICO.  Section 31 spelt out the circumstances under which the court could grant relief.  Lam JA said s 30 provided another escape route, where the impugned conduct was “engaged in by an agent of the candidate” and (a) the candidate did not personally engage in the conduct; and (b) the conduct did not materially affect the result of the election, etc. He concluded that where neither s 30 nor s 31 is applicable, the court must hold that the candidate was not duly elected.

14.He further held that even if the power under s 55(2) is discretionary, given the narrow margin, he would not have exercised it in favour of the applicant. The learned judge was entitled to that view.  The importance of a level playing field is obvious.  The same reasons why relief was not granted are good reasons why the discretion should be exercised against the applicant in the petition.

15.It was also argued on behalf of the applicant that unless the 1^st respondent could show that the applicant would not have succeeded without the illegal conduct the election should be upheld.  The judge disagreed and said that it was sufficient if the result might have been affected.  Lam JA said the applicant has misunderstood Mok Charles Peter v Tam Wai Ho [2012] 3 HKC 398.  We agree.  The contrary is not reasonably arguable.

Leave to appeal

16.On this application, the applicant proposes the following questions as being of the requisite importance:

“(a) Whether, where illegal conduct as a ground for questioning an election to return an elected member of the District Council provided in section 49(1) of the District Councils Ordinance (Cap 547) is made out, the Court must determine that the person whose election is being questioned was not duly elected, regardless of the actual circumstances of the case.

(b) If regard is to be had to the actual circumstances of the case, whether the test to be applied in determining whether the person whose election is being questioned was not duly elected is merely that the outcome of the election might have been affected by the illegal conduct or whether it needs to be established that the outcome of the election was affected by the illegal conduct.”

17.The first question is academic.  The second is not reasonably arguable.

18.For the above reasons we have refused leave to appeal and ordered that the applicant pays the costs of the 1^st respondent.

Mr Clifford Smith SC, instructed by Tai, Tang & Chong, for the applicant

Mr Hectar Pun and Mr Jeffrey Tam, instructed by Tang, Wong & Chow, for the 1^st respondent

Mr Jonathan Chang instructed by Department of Justice, for the 2^nd respondent and the intervener