Chan Hak Kan and Others v. Secretary for Justice

HCMP 623/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 623 OF 2013

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J U D G M E N T

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1.By this originating application, the 1^st to 7^th plaintiffs apply under the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) (“the Ordinance”) to be relieved from the penalties and disqualification that are imposed by, or could be imposed under, an electoral law. The Secretary for Justice who is the defendant does not oppose this application and has made no submissions.

2.The 1^st to 6^th plaintiffs, who are all members of the Democratic Alliance for the Betterment and Progress of Hong Kong (“DAB”), were together the six candidates on List No 9 (“the List”) of the New Territories East Constituency in the 2012 Legislative Council Election.  The election took place on 9 September 2012.  Of the candidates on the List, only the 1^st plaintiff was elected as a Legislative Councillor.

3.The plaintiffs formed the List on 9 July 2012.  They appointed one Mr Tam Wing Fan as their election agent.

4.After a week or two, Mr Tam resigned.  The 1^st to 6^th plaintiffs then approached one Mr Lai Sum (“Mr Lai”) who agreed to be their election agent.  Mr Lai was also a member of the DAB as well as a District Board Councillor.  He was formally appointed jointly by the candidates as their election agent on 21 July 2012 pursuant to section 23 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap 541 sub. leg. D) (“the Regulation”).  The nomination form in respect of the List for the 2012 Legislative Council Election was submitted on 25 July 2012.

5.The supporting work for the List was undertaken with the assistance of volunteers and staff of the North District Branch and Tai Po District Branch of DAB.  In particular, on 15 July 2012, one Mr Lo Ka Lok (“Mr Lo”), the coordinator of the North District Branch of DAB, prepared a number of returns and documents for the candidates on the List.  One of these documents was a form with the title “Return and Declaration of Election Expenses Already Incurred and Appointment of Election Expenses Agent / Cross-Authorisation of Candidates on a List of Candidates in CG/DC (Second) FC Election”.  The principal function of that document was for the candidates to authorise agents and to cross-authorise other candidates on the same list to incur election expenses.  The document has been referred to in the evidence as the “Return” but I shall refer to it below as “the Authorisation”, to avoid confusion with election returns that have to be filed after the election pursuant to s 37 of the Ordinance.  The Authorisation was required to be filed before the election.

6.The 1^st to 6^th plaintiffs intended to appoint the 7^th plaintiff, Mr Wong Kine Yuen, who was the Honorary Treasurer of the DAB, as their election expense agent.  The election budget of the List as a whole was $2,230,000.  It was intended that the 7^th plaintiff would be authorised to incur expenses up to $230,000 and the 1^st plaintiff authorised to incur up to $2,000,000, in respect of all the candidates on the List.

7.The Ordinance contains provisions that seek to ensure that only the candidates themselves or properly authorised persons may incur election expenses in connection with an election. Such properly authorised persons are called election expense agents.  It is illegal for any other person to incur election expense.  Thus, section 23 of the Ordinance provides:

“(1) A person, other than a candidate or a candidate's election expense agent, engages in illegal conduct at an election if the person incurs election expenses at or in connection with the election.

(2)   If a candidate who belongs to a group of candidates incurs election expenses at or in connection with an election, the candidate engages in illegal conduct at the election unless each other candidate who belongs to the group has authorized the candidate to be the other candidate's election expense agent.”

8.Section 23(6) lays down the criteria for a person properly to be regarded as an election expense agent of a group of two or more candidates.  That subsection reads:

“(6) For the purposes of this Ordinance, a person (including a candidate) is an election expense agent of a group of 2 or more candidates only if-

(a) the person is authorized in writing by each of the candidates to incur election expenses at or in connection with the election on behalf of the group; and

(b) the maximum amount of election expenses that the person is authorized to incur is specified in the authorization; and

(c)   a copy of the authorization has been served on the appropriate returning officer.”

9.In the event, the 1^st and 7^th plaintiffs did incur expenses in the election in the amounts of $205,988.53 and $1,509,200.76 respectively, which fell within the budget indicated in the Authorisation.  The 2^nd to 6^th plaintiffs did not incur any expense by themselves.  An election return required by Part VI of the Ordinance was duly filed after the election. 

10.It follows however from s 23 of the Ordinance that unless the 1^st plaintiff had been properly authorised in accordance with the statute, he would have engaged in illegal conduct by incurring expenses for the 2^nd to 6^th plaintiffs in connection with the election.  Likewise, unless properly authorised, the 7^th plaintiff would have engaged in illegal conduct by incurring expenses for the 1^st to 6^th plaintiffs.

11.To see the more detailed steps whereby an election expense agent is to be authorised, one has to go to s 25 of the Regulation, which provides as follows:

“(6) An authorization of such an election expense agent must be in writing and in the specified form and state the name, identity document number and residential address of the person authorized.

(7) The authorization must specify the maximum amount of election expenses that the election expense agent is authorized to incur.

(8) The authorization must be signed by the candidate, or each of the candidates, making the authorization. The authorization must also be signed by the person authorized.

(9) A copy of the authorization must be served-

(a) on the Returning Officer; or

(b) if the Returning Officer has not been appointed, on the Chief Electoral Officer.

(10) Service of a copy of the authorization may be effected by delivery by hand, by post or by facsimile transmission.

(11)   The Returning Officer or the Chief Electoral Officer, as the case may be, is to regard an authorization of an election expense agent to incur election expenses at or in connection with an election as being effective, for any purpose related to the election for which the authorization is relevant, only when a copy of the authorization has been served on the relevant Officer.”

12.Under s 26 of the Regulation, a copy of the authorisation served on the appropriate officer is to be made available for public inspection.

13.The Authorisation, which was in the prescribed form, was intended to be the authorisation of the 7^th plaintiff by all the candidates on the List as their election expense agent and the authorisation of the 1^st plaintiff by the other candidates on the List.  Part II of the form contains a table for one to fill in the name of the candidates, their Hong Kong Identity Card numbers, the signatures of the candidates and the dates.  Part III of the form is for the details of the election expense agent to be set out and is to be signed by him.  The attesting witness in whose presence the form was completed and signed has to fill in his details and signature in Part IV of the form.

14.Mr Lo states in his affirmation filed in these proceedings that on or before 15 July 2012, the 7^th plaintiff signed Part III of the Authorisation in his presence.  The 7^th plaintiff himself suggests that he signed on 15 July 2012.  Both the 1^st plaintiff and Mr Lo depose in their affirmations to the fact that Mr Lo took the Authorisation to the 1^st to 6^th plaintiffs one by one for their signature and each of them, except the 5^th plaintiff, signed in Part II of the form on 15 July 2012.  Mr Lo says that the 5^th plaintiff signed it on 18 July 2012.  At that time, no date was entered against the signature of any of the candidates.

15.As required by section 23(6)(c) of the Ordinance and section 25(9)-(11) of the Regulation, the Authorisation should have been served on the Returning Officer, and would only become effective upon such service.

16.While it must primarily be the responsibility of the persons who incur or intend to incur election expenses (ie the 1^st and 7^th plaintiffs here) to ensure that they have lawful authority to do so as required by law, the evidence shows that the responsibility for filing the Authorisation with the appropriate returning officer was delegated by the 1^st and 7^th plaintiffs to Mr Lai, the election agent for the candidates on the List.  As he states in his affirmation, Mr Lai in turn delegated to Mr Lo the responsibility for completing and filing the Authorisation.

17.After the Authorisation was signed by the candidates as described above, according to Mr Lo:

“9. … I put the said Return into a box file kept for the ... List. I understood that I had to file the Return after the formal submission of nomination form, i.e. 25^th July 2012, but before the Election Day, i.e. 9^th September 2012. I regret that I forgot to do so properly.

…

11. After the election I had to continue my own official work, and much of which were delayed. In addition, I had to assist in the post-election work such as removal of election materials and filing various papers and arrange them to be properly filed under the supervision of Mr Lai.

12. On 30^th October 2012, Mr Lai came to me and told me that the said Return was still in box files. He then instructed me to complete and file the said Return immediately. I regret to say that I have completely forgotten this matter, I was supposed to have completed and filed it before 9^th September 2012, but due to inadvertent oversight I have forgotten to do so.

13.    I promised Mr Lai to handle this matter right away.  I knew that the said Return was very important …”

18.Mr Lai describes the circumstances in which he discovered the Authorisation as follows:

“15. After the election, all volunteers retreated, leaving the staff of Tai Po District branch and North District Branch of DAB to continue the aftermath work of the election campaign, including the removal of election materials and filing of various papers for election expenses. As those staff had other official engagement, they could only assist the post-election work at their spare time.

16.    When preparing the returns for election expenses in late October, I accidentally found the said Return in the box files kept for the Chan’s List, which was not completely filled and was not properly filed to the Electoral Officer.  I therefore instructed Mr. Lo to complete the said Return and to file the same immediately.  Mr. Lo completed the said Return and filed to the Electoral Officer on 2^nd November 2012.”

19.For his part, Mr Lai accepts that he was supposed to supervise Mr Lo but explains that

“... I regret to say that I had missed my attention to this matter until I discovered the said Return in the box file kept for the ... List”.

He also says:

“At that time, everybody was so heavily engaged in the electioneering campaign and therefore I had forgotten the filing of the said Return, neither did Mr Lo remind me the same. I kept a diary as the reminder for what I should do on which date. In addition, I prepared a number of schedules for various activities for the ... List. Very often I had to refer to both my diary and the schedules as my working guidance, and most of them were recorded and marked in a very congested manner. I regret that I have overseen the filing of the said Return.”

20.The Authorisation was eventually filed with the Registration and Electoral Office on 2 November 2012.

21.I accept the factual evidence put forward by the plaintiffs.  Although the date that now appears on the form against the signatures of the candidates is 30 October 2012, I accept that it is a mistaken date inserted by Mr Lo after the omission was discovered in October 2012 when he tried to complete the form in haste and have it filed as soon as possible.  I find that the Authorisation was signed on 15 and 18 July 2012 by the candidates and by the 7^th plaintiff as the election expense agent.

22.S 31 of the Ordinance provides as follows:

“(1) A candidate, candidate's agent or any other person who has done or omitted to do an act that, but for this section, would be illegal conduct at an election may apply to the Court for an order under subsection (2).

(2) On the hearing of an application under subsection (1), the Court may make an order relieving the applicant from penalties and disqualifications that are imposed by, or could be imposed under, an electoral law for any act or omission of the applicant that, but for this section, would be illegal conduct at an election, but only if the Court-

(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

(ii) where the Court requires notice of the application to be given in Hong Kong, the notice has been given; and

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

(3) If an application is made under subsection (1), no prosecution against the applicant for having done or omitted to do an act that, but for this section, would be illegal conduct at an election may be instituted or carried on until the application is disposed of by the Court.

(4)   An applicant is not liable to be convicted of an offence of having engaged in illegal conduct at an election if the act or omission of the applicant that, but for this section, would be illegal conduct at the election is the subject of an order made under subsection (2).”

23.The act or omission that would be illegal conduct here is the incurring of expenses by the 1^st and 7^th plaintiffs at or in connection with the election, without their having properly been authorised by the candidates, contrary to s 23(1) of the Ordinance.  The conduct would be illegal because the Authorisation had not been served on the appropriate returning officer as required by s 23(6)(c) until 2 November 2012, so that neither the 1^st plaintiff nor the 7^th plaintiff had been properly authorised as the election expense agent of the other candidates when election expenses were incurred by them. 

24.As for the potential penalties and disqualifications, by virtue of s 22 of the Ordinance, such illegal conduct constitutes an offence and is punishable by a fine and imprisonment.  Under s 61 of the Legislative Council Ordinance (Cap 542), it is a ground for questioning the election of a member of the Legislative Council that the member was not duly elected because illegal conduct (contrary to the Ordinance) was engaged in by or in respect of that person at or in connection with the election.  Under s 39(1)(e)(ii) of the Legislative Council Ordinance, conviction for illegal conduct in contravention of the Ordinance disqualifies a person from being nominated as a candidate at an election and from being elected as a member of the Legislative Council.

25.The relevant conditions for the exercise of the discretionary power under s 31 of the Ordinance are that (i) the act or omission was due to inadvertence, an accidental miscalculation or any reasonable cause; (ii) the act or omission was not due to bad faith; and (iii) it is just that the 1^st and 7^th plaintiffs should not be subjected to one or more of the penalties and disqualifications in question. These conditions must be met before the court can exercise the discretionary power conferred by s 31(2) of the Ordinance.

26.The plaintiffs submit that the act or omission was due to inadvertence.  It has been said in this context that “inadvertence” means “negligence or carelessness where the circumstances show an absence of bad faith”: In re Brook Bernacchi [1957] HKLR 185, 186; Re Liu Sing Lee [2003] 3 HKLRD 162 at §26.  Moreover, generally there must be some reasonable excuse for the inadvertence before the court would grant relief: In re Brook Bernacchi, supra, at 186; Re Sai Kung Constituency Regional Council Election, ex p Leung Kam Ho Gilbert [1994] 3 HKC 544, 550; Re Country Councils’ Elections, Layton and Woodbridge’s Case (1889) 5 TLR 198.

27.Here, the illegal conduct was engaged in by a combination of the incurring of election expenses by the 1^st and 7^th plaintiffs and the failure by the delegated person (Mr Lo) to file the Authorisation with the appropriate returning officer.  The form of Authorisation had been filled in and signed by 18 July 2012, but was not filed on that date because the nomination for the List was only to be submitted on 25 July 2012.  In the event, having put the form in a box file, Mr Lo forgot to serve it on the returning officer between 25 July 2012 and 9 September 2012, the election day.  I am satisfied that the 1^st and 7^th plaintiffs did not know that the Authorisation had not been filed during the period in which they incurred election expenses.  In my judgment it may fairly be said in these circumstances that the act or omission in question was due to inadvertence.  I am also satisfied that there was no bad faith on the part of any of the persons concerned.

28.It is an important feature here that, on my finding, the Authorisation had been duly signed by each of the plaintiffs before the election expenses were incurred and that the only failure was to lodge it with the returning officer.  Further, I am satisfied that Mr Lai and Mr Lo had acquainted themselves with the legal requirements, so it is not a case of their being reckless as to what their obligations were as agents or assistants to the candidates.  I do not consider this to be a case of an applicant “turning a blind eye” to the requirements of the law.  In my view this case may be distinguished from the case of Re Yiu Chun Fat, HCMP 1482/2007, 5 November 2007, to which I drew counsel’s attention at the hearing, where the applicant failed to file his election return after the election because he “simply put this obligation of filing the election return as an item of very low priority” and “simply did not care about it enough” (see para 9 of that judgment).  In my judgment, this is a case of a genuine inadvertent omission to lodge a document which had already been prepared and signed.  While I would emphasise that it is important that an authorisation should be served on the returning officer, so that it may, inter alia, be made available for public inspection, I consider it just in the circumstances of this case that the 1^st and 7^th plaintiffs should be relieved from the potential penalties and disqualifications that result from the act or omission in question.

29.I therefore exercise my power to grant relief under s 31(2) of the Ordinance.  There will be no order as to costs as the defendant does not seek costs.

Mr Sio Chan In Davin, instructed by Lo, Chan & Leung, for the 1^st to 7^th plaintiffs

Mr Jeremy Law, GC of the Department of Justice, for the respondent