Re Kun Sun, James

HCMP 1685/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1685 OF 2013

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J U D G M E N T

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1.The applicant was elected at the Yau Tsim Mong District Council Election held on 6 November 2011. He has filed a Return and Declaration of Election Expenses and Election Donations (“the Return”). He applies under sections 37(2)(b), 40(3) and (4) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (‘the Ordinance”) to correct a number of errors.

The legal principles

2.Under section 37(2)(b)(ii) of the Ordinance, a candidate must ensure that the return is accompanied, in the case of each election donation consisting of goods or a service, of more than $1,000 in value, by a copy of the receipt issued to the donor giving particulars of the donor and the donation.

3.Under section 40(3) of the Ordinance, a candidate can apply to the court for an order enabling him to correct any error in an election return or in any document accompanying the return.

4.Under section 40(4) of the Ordinance, upon hearing such an application, the court may make the order sought if it is satisfied that the error was due, amongst others, to inadvertence or an accidental miscalculation by the applicant or any other person; or any reasonable cause and was not due to the applicant’s bad faith.

5.“Inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith. The evidence should show some reasonable excuse for the inadvertence and the negligence must not be of so gross a nature or so culpable as of itself to raise doubts concerning the good faith of the applicant: Re Brook Bernacchi & Ors [1957] HKLR 185, at 186.  See also Wong Yee Him v Secretary for Justice, HCMP 611/2000, 10 March 2000, Deputy Judge Li.

6.Where a deliberate decision has been made to exclude an item from an election return, the applicant may not avail himself of the “inadvertence” exception under section 40(4)(b) of the Ordinance.  It would be a conscious decision, albeit erroneous.  However, the applicant may rely on the “any reasonable cause” exception under section 40(4)(c) of the Ordinance: Re Liu Sing Lee [2003] 3 HKLRD 162, at paras 26-27.

7.The burden is on the applicant to prove that the pre-conditions for grant of relief are established on the evidence and that there was no bad faith on his part: Re Liu Sing Lee [2003] 3 HKLRD 162, at para 29.

Application of the legal principles

8.The applicant seeks leave to amend the originating summons to include 3 more items of error, making a total of 6, in the Return.

9.Firstly, there was a salary receipt which the applicant failed to submit with the Return.  I am satisfied that the error was due to inadvertence of the applicant, as the amount of the salary had already been reported in the Return already.

10.Secondly, there was a donation of transportation services which the Registration and Electoral Office (“the REO”) said the applicant failed to report in the Return.  The applicant said that the failure was due to misunderstanding of election law.  He and his staff thought that the amount that triggered the requirement for supporting documents was $1,000 instead of $100.  I queried if that view was erroneous in the light of section 37(2)(b)(ii) of the Ordinance. 

11.Mr Law of the Department of Justice has clarified today that the REO considered the item to have fallen within section 37(2)(b)(i) of the Ordinance, which provides that election expenses of $100 or more have to be supported by invoices and receipts.

12.In my view, limb (i) is dealing with election expenses, ie an expense item. Limb (ii), on the other hand, is dealing with election donation of goods and services, ie a receipt item, which is applicable in the present instance.  The applicant has not erred in his Return as he had received donation of services for less than $1,000.  No order needs to be granted to him.

13.Thirdly, the applicant’s staff had forgotten to put in an item, being 125 election advertisement letters by the Hong Kong Professional Teachers’ Union which was donated by the Democratic Party.  The amount involved was $253.63.  This was due to hurry and inadvertence of the applicant and his staff.

14.Fourthly, the applicant has put down the expense of one polo shirt instead of two since only one was used.  Instead, the total expenses of two polo shirts should have been counted.  There was an understatement of $96.  It was due to inadvertence on the part of the applicant.

15.Fifthly, the applicant’s staff had incorrectly put down a figure of $208.60 instead of $208.66, a small difference of $0.06.

16.Sixthly, for payments for rental, office expenses and transportation, the applicant’s staff had incorrectly put down a figure of $187 instead of $185, a small overstatement of $2.

17.The 5^th and 6^th mistakes were clearly clerical in nature, arising from inadvertence.

18.There are consequential adjustments to the sub-total and overall figures which need to be made. 

19.Whether viewed individually or as a whole, the errors were not out of bad faith and I am satisfied with the explanations of the applicant.  The Secretary for Justice does not oppose the present application.

Conclusion

20.I give leave to amend the notice of originating motion and grant the orders sought, save in relation to item (ii) in the amended notice of motion on which the applicant has not erred.

21.I thank counsel for their assistance.

Mr Richard Leung, instructed by Henry Fok & Co, for the applicant

Mr Jeremy Law, Government Counsel, of the Department of Justice, for the respondent